The Supreme Court finished its term with its usual dramatic flair with the release of the long-waited decision in Sebelius v. Hobby Lobby Stores (which is consolidated with Conestoga Wood Specialties Corp. v. Sebelius). The two cases represent a classic split in the circuits with the Tenth Circuit agreeing with Hobby Lobby as to the religious claims of the company while the Third Circuit ruled against such claims by Conestoga Wood Specialities Corp. The Court ruled that the Hobby Lobby does have religious rights, but limited the decision to closely-held corporations. Where Citizen’s United recognized that corporations have free speech rights like individuals, Hobby Lobby would do the same thing for religious rights. I will be running a column in the Los Angeles Times in the morning not just addressing this ruling but, once again, highlighting what I consider a far more important case that will be decided just a couple blocks away in the D.C. Circuit — Halbig v. Sebelius. I will be discussing the decisions today at CNN starting at 10 am and continuing to the discussion at 1 pm with Wolf Blitzer.
Hobby Lobby is a fascinating case involving the retail arts and craft chain founded by David Green and owned by his family, which also happen to be Evangelical Christians. The Greens actually do not object to all of the 20 forms of birth control under the ACA. However, they are religiously opposed to supplying four methods: morning-after pills Plan B and Ella as well as two kinds of inter-uterine devices (or IUDs). (The Conestoga company is smaller and owed by Hahn family, who are Mennonite Christians) At a running fine of $100 per employee, Hobby Lobby estimates that the federal mandate would cost it about $1.3 million a day, or roughly $475 million a year.
The religious beliefs of the family are formally integrated into their company: Green family members signed a formal commitment to run the stores according to Christian religious principles, including closing on Sunday, advertising their religious orientation. The company even plays religious music inside their stores.
The Greens challenged the provisions under the and the Religious Freedom Restoration Act, which imposes a high standard of strict scrutiny for the government to meet when a neutral law “substantially burden[s] a person’s exercise of religion”. (Note some amicus briefs suggest that the mandatory plan should also be barred for these purpose under the Establishment Clause). In 2013, United States District Court Judge Joe Heaton granted the company a temporary exemption from the contraceptive-providing mandate. (Conestoga directly raises free exercise arguments).
In an interesting wrinkle, an April article in Mother Jones alleged that Hobby Lobby’s employee retirement plan has more than $73M invested in mutual funds which include manufacturers of some fo the very contraception devices or drugs cited in the complaint.
The decision has sweeping application – well beyond these companies or the 49 for-profit corporations that have claimed such exemptions. The ruling addresses the very essence of a religious claim and the very essence of a corporate entity.
Closely-held corporations are not as limited as it might seem. I agree with Ginsberg that the implications are sweeping. The closely-held corporations represent a huge number of businesses. As I mentioned on CNN, the large corporations are the least likely to demand such exemptions. There are millions of family businesses that may not object not just to the ACA but renew objections to discrimination laws that force such businesses to serve same-sex weddings or engage in other activities that violate their religious beliefs. This is much like Heller and the recognition of individual gun rights. We are still working out the details on how far that goes years after the decision.
This is a major blow to the Administration which in the last ten days have been found to have violated the fourth amendment and privacy and then found to be in violation of the separation of powers and now found in violation of the first amendment and religious freedom.
Karen S wrote “Everything’s made in China nowadays”
Wrong, simply wrong. Lots of goods are made in the U.S., Europe, Canada, Israel, South America, South Korea, and other non-Chinese countries, but Americans and others are too selfish to pay the difference.
You know what would solve the whole angst against what employers offer in health insurance? Employers should stop offering insurance. All insurance should be on the individual market. Benefits could include a medical flexible spending plan, which could be used to purchase insurance on the market.
And then bring back consumer choices and interstate competition among insurers. Have a race for excellence and a proliferation of choices. And then all those employees could choose plans that work for THEM and fit THEIR BUDGET.
Karen – there is a new regulation that prevents you from not offering insurance if you were already doing. Obama got you coming and going.
seamus wrote “About 80 percent of their merchandise consists of fake antique tchotchkes made in China. I wonder what deeply held Christian beliefs compel the Green family to buy most of their goods from an atheist police state.”
This is a great point. The owners could easily buy merchandise manufactured in South America, Europe, Canada, Israel, or even (the horror!) the USA. Yes, it would reduce their profits, but it would create jobs here, allowing families to take better care of their children.
And it’s even worse than that. China still has labor camps; President Xi Jinping’s father spent years in one. China is a party to Articles 33 and 35 of the United Nations Refugee Convention and Article 3 of the United Nations Convention on Torture which forbid deportation back to a country where inhabitants are routinely tortured, imprisoned, and/or executed — yet it classifies North Korean refugees as economic, not political, ones, and deports them back to the DPRK to almost certain death.
But doncha know: it’s only Americans that matter.
Karen S, Don’t think we are talking about powerful women. More likely, women that are in low paying jobs that really don’t have a couple of extra bucks.
You know what galvanizes voters? To my chagrin, it’s “free stuff.”
Study after study shows that most people, when asked, say they would like “free stuff.” If a study poses the question, would you like “X” given to you for free, the vast majority will answer “yes!”
But those studies never say that getting “X” will have a hidden cost “Y”.
And so all politicians have to say is that “I will give you MORE FREE STUFF! Who really cares how we will pay for it! It’s FREE STUFF! What’s not to like?”
So the only think that snaps voters out of it is when their insurance premiums double, their deductibles go up 1100%, 75% of doctors won’t accept their plans and seeing them does not count towards your deductible, and most drugs are not on formulary.
Nothing wakes you up out of a “free stuff!” stupor like having to pay enormous increases in bills every month.
It is SO anti-woman to give women a mere 16 choices of birth control. To expect women of means to pay a couple of bucks copay for their birth control. Oh no. A REAL woman sits helplessly on her hands and waits for her birth control to be free, regardless of how much money she makes. And then she’s not savvy enough to realize that her premiums went up enough to cover all those no-copay benefits, at a net loss to her.
What has happened to powerful women?
Nick, Or a slice of anti-union decision.
Jim – you mean in 2016? Although, since the employer mandate got put off until after the election, we may still have a naive votership for a while yet. But just wait until it hits. Difficult times ahead for them. I should really print out these pro-Obamacare comments to save them for a few years and compare before and after opinions in the Democratic Party. Wonder how they’re going to try to get out of taking responsibility for this Albatross?
Annie, I think this going to help galvanize women for the 2014 elections. It was clearly an anti woman decision unless your some Phyliss Schlafly type.
Seamus – was that for a boxcar race? Cool!
Everything’s made in China nowadays. The don’t make ’em like they used to.
Funny how it’s anti-woman for a middle- or upper-class woman to pay a copay for birth control.
I’ve been in a Hobby Lobby. (buying weights for a Cub Scout pinewood car. We took third) About 80 percent of their merchandise consists of fake antique tchotchkes made in China. I wonder what deeply held Christian beliefs compel the Green family to buy most of their goods from an atheist police state.
I can’t recall. Did Obama declare that copays were abusive of men for prostate exams? Are those on the list of “freebies” that drove up all our premiums?
Funny how a copay is abusive of women, but increasing their premium to cover that no-copay does not.
He should have sold cars.
Or a mammogram would be another good comparison with a prostate exam.
These religious examples all share the same thread – that employers will interfere with what employees do in their private lives.
Again, false logic.
On the contrary, Hobby Lobby wants to be kept out of employees’ private lives. They don’t want to be forced to pay for only 4 of 20 birth control forms that they disagree with on religious grounds. But they are not preventing employees from getting those 4 on their own dime.
Jim – good point about the prostate exam.
The correct comparison with a prostate exam is a PAP smear and pelvic exam.
To compare birth control methods like the IUD, you would have to compare it with a vasectomy for the comparison to have merit.
http://takingnote.blogs.nytimes.com/2014/06/30/the-political-repercussions-of-the-hobby-lobby-decision/?_php=true&_type=blogs&_r=0
The political repercussions of the Hobby Lobby case.
jim, It’s a very dry and bitter whine. Needs a sweet cheese pairing. Or maybe some chocolate.
Here’s Pat Robertson’s take on planned parenthood. Another conspiracy theory?
Nick, I’ve been enjoying reading the progressives whine. I hope to read more in the future.
Annie, Prostate exams help find early stage of cancer correct? What disease is birth control from casual sex preventing? Are babies a disease to you?