Tuesday, July 1, 2014

The Burwell v. Hobby Lobby Post I Was Too Burned Out To Write Last Night

Burwell v. Hobby Lobby

Nick Anderson via AAEC
Full text of the opinion and dissent (Ginsburg all over it, Breyer and Kagan basically adding, 'Yeah, what she said.') at the top link. (Or, you can have the Ginsburg dissent sung to you at bottom of this post -- not by me!)

Let's take a look at some of the Ginsburg highlights and then see how our friends on the right are arguing against them.

RBG: "Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community."

NRO: "FACT: Countless religious charities exist primarily for the purpose of showing love to needy people, whatever their faith. The dissent totally neglects groups like the Little Sisters of the Poor, Samaritan’s Purse, and many others."

The NRO's objection here is puzzling. Ginsburg doesn't say all religious organizations exist solely to benefit practitioners of their specific faith. But, they pretend she does to be argumentative. Nothing about the NRO's observation changes that fact that there are religious organizations which promote the interests of their faith. Yes, there are religious organizations that help anyone, and often proselytize while doing so, but that's not the point.

As for Ginsburg's observation that workers at for-profits are not commonly drawn from the religious community of their employer, they say: "FACT: Employing people of the same faith isn’t required to receive a true exemption or accommodation. Religious nonprofit corporations, to which HHS has given an accommodation, often employ people from many different religious communities or from no religious community."

The NRO here is turning around Ginsburg's comments that are clearly meant to acknowledge the rights of workers who don't share their employers' faith to make a point about employers' rights to gain exemptions or accommodations. The NRO's objection here to Ginsburg's point then can be summed up as, screw them. Nice.

RBG: "Would the exemption…extend to employers with religiously grounded objections to blood transfusions (Jehovah's Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations[?]…Not much help there for the lower courts bound by today's decision."

NRO (responding to RBG's characterization of the opinion having "startling breadth," examples of that breadth she is inquiring about in this point): "FACT: This can’t be a decision of “startling breadth” because it only applies to closely-held corporations. Even Justice Kennedy said that “the Court’s opinion does not have the breadth and sweep ascribed to it by the respectful and powerful dissent.” If any opinion in his case has startling breadth, it is Justice Ginsburg’s own dissent, which, in denying religious freedom rights to owners of for-profit corporations, went too far even for two of her most liberal colleagues. "

First, the NRO's specific argument against startling breadth on the basis of the ruling applying to only closely-held corporations and family businesses is remarkably facetious, as if family-owned and closely-held corporations are somehow a negligible segment of the employment market. Check the numbers, jerks.

Anyways, the real issue with this ruling potentially having startling breadth is ...

RBG: "Approving some religious claims while deeming others unworthy of accommodation could be 'perceived as favoring one religion over another,' the very 'risk the [Constitution's] Establishment Clause was designed to preclude."

NRO: *crickets*

In the cynical attempt at gutting precedent by issuing an unprincipled opinion on supposedly narrow grounds (only closely-held corporations, only with regard to contraception) accompanied by obfuscatory hand-waving (where's the underlying legal principle that stops other religious corporations from having an argument about other medical practices?), it seems notable that the Court majority found Hobby Lobby to be sincere in their religious beliefs, yet didn't have a problem with the fact they deal with China to get low-priced goods, which means they pay money into a state-run economy where the state has policies which conflict with Hobby Lobby's professed beliefs to a much greater degree. So, if they were sincere, they wouldn't be doing business with a country that promotes not only contraception but forced abortion via their family planning policy.

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