I'm done with misinformation and ignorance shouted so loudly and without logical coherence. No, I cannot hold back the firestorm of stupid on the internet, but if this post informs just one person, if it encourages just one person to question the emotional appeal of oversimplification from here on out, then I'll be happy. If it makes just one person do a little research with primary sources the next time this happens, then I'll be so thrilled. No, I am not trying to "fix stupid" on the internet or forever correct misleading over-generalizations or blatantly false reporting, but I can respond to the requests I've gotten for "my thoughts" about the Hobby Lobby case. Here they are. Yes there are many, but remember I've been holding this in for a while now.
Your personal educational level does NOT mean your argument is flawless. I need to start with this because everyone needs to separate their work from themselves, their training from their product. Just because you graduated with honors from a good school does not mean you are immune to logical fallacies. I'm not immune. I own that. I ask for feedback. I seek out the weaknesses in my arguments and make them stronger. I do not believe my advanced education automatically makes my arguments or opinions flawless, and you don't honestly believe it does either. Think about it: all of the Supreme Court justices are highly educated individuals. They all completed strenuous undergraduate and graduate work. They became accomplished in their fields. They are the final arbiters of the American justice system. And yet, I guarantee there is a justice or two you think is nuts. If not, replace this with any American president, and you'll understand what I'm saying. This is a logical fallacy known as appeal to authority. Even if that person is a renowned expert in what s/he is asserting, it is still a formal logical fallacy to say "because I say X, X." Neither my qualifications nor your qualifications make our arguments stronger--so let's start with just putting our egos to the side and agreeing to have a rational, intellectual discussion where we challenge ideas, point out fallacies, and correct factual inaccuracies in order to be the informed public the Founders expected us to be.
"Hobby Lobby" likely does NOT say what you think it says unless you've personally read the majority opinion. There is so much misinformation circling out there about this case (reporting what's been reported and summarized). So many blatant lies (hi there, Facebook). So many lies by omission (everywhere). Sometimes it's just inaccurate reporting, just reporting someone else's summary of the case or using a general term because you don't know what the specific one means and you're on a deadline. Trust me, I get it. I understand that journalists are expected to be experts in whatever they cover, and that's just not realistic. I've been there. But even though I love Minnesota Public Radio (seriously, I listen to it every day at least twice), even MPR's reporters got it wrong, at the best, or were intentionally misleading, at the worst. I still hear inaccurate references to the opinion when reporters and political activists comment talk about tangential political issues.
Either way, as much as it pains me to say it, my beloved MPR is not infallible. There. I said it. I've always known it, but I've never said it. Yet, refusing to admit this would be to commit the logical fallacy I just discussed--I would be relying upon the name of MPR and accepting, without question, anything MPR puts its name on. So, no, I am not a crazy conspiracy-theorist who doubts the mainstream media. But neither am I willing to accept something hook-line-and-sinker just because it comes from a trusted source, and you shouldn't either.
The Hobby Lobby case was NOT about the First Amendment--it was Congress and President Clinton's idea. The Supreme Court did not rest its opinion on the rights of religious freedoms. Indirectly, yes the case related to religious freedom, but only because the law at issue, the Religious Freedom Restoration Act, was passed by Congress in a reaction to a Supreme Court case that completely changed how First Amendment cases were analyzed (i.e., it was a case about interpreting a LAW, passed by a nearly unanimous congress and signed by president Clinton, with broad public support. That law was reacting to a controversial Supreme Court decision, and attempted to "overrule" that decision. That particular decision was about the First Amendment).
Basic appellate law: most cases on appeal will be resolved by either the burden of proof or the legal standard of scrutiny. The burden of proof is who has to prove something. (So, if I go to court saying you owe me $50, I have the burden of proof to establish you are guilty of owing me the money, otherwise you don't. It's applicable in many other formats, but return to "innocent until proven guilty" if you get confused later.) The legal standard of scrutiny has to do with how sure a court has to be about something in order to make a decision a certain way. It relates to how much proof the person/party with the burden of proof has to put forward in order to "prove" their case and get the desired outcome. So, if you have a little proof and a low standard, you could win. If you have a little proof and a high standard, you'll lose. It might seem initially wrong to have different required levels of proof for different things, given the whole "innocent until proven guilty" thing, but it makes sense. Certain explicit guarantees of the constitution make laws that regulate those rights subject to "strict scrutiny." Other areas of regulation only require a "rational basis." Now, on to why this wasn't a First Amendment issue.
For a long time, the Supreme Court applied what was known as the "Sherbert Test," after Sherbert v. Verner and Wisconsin v. Yoder, two cases that required courts to use the highest level of scrutiny, strict scrutiny, when analyzing claims of violations of the First Amendment's Free Exercise clause (religion). Strict scrutiny required that a government's action be made (1) in furtherance of a compelling government interest, and (2) in the least restrictive method possible to further the interest. This is a sort of two-step standard: the government interest must be "compelling," or relatively narrow and specific, in addition to being a regulation that's the least restrictive method to achieve this "compelling" goal as possible. (So, even if an interest is "compelling", the law could fail the analysis on the second prong--and be unconstitutional--if the law applied to more people than were necessary to achieve the goal). The least restrictive method is key to this discussion. Remember that. Strict scrutiny = high interest and narrow, narrow regulation.
In 1990, the Supreme Court ruled that First Amendment claims could use a lower standard than strict scrutiny and that a generally applicable law does not have to make exemptions for explicit constitutional guarantees of religion. Essentially, a state may make religious accommodations, but it does not have to do so. In this case, Employment Division v. Smith, the Supreme Court held that the state could deny unemployment benefits to a person fired for violating a state prohibition on the use of peyote, even though the use of the drug was part of a native American religious ritual. What you or I think about Employment Division decision is irrelevant to this analysis, but the fact that it happened is fundamental.
In 1993, a unanimous U.S. House, nearly unanimous U.S. Senate (97-3), and President Bill Clinton responded with the Religious Freedom Restoration Act. The Act reasoned that a religiously neutral law could burden a person's Free Exercise of religion (guaranteed by the First Amendment) just as much as a law that was targeted at a religion could do so. Congress and President Clinton reimposed strict scrutiny: “Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person . . . is the least restrictive means of furthering [a] compelling governmental interest.”
I repeat that: Congress and President Clinton passed a law requiring courts to use strict scrutiny. The entire fight in Hobby Lobby was about interpreting that law. IF the law applied, the courts were to use strict scrutiny. If not, rational basis. It all depended on how "person" was defined within this Act. I'll explain the disagreement about defining "person" below, but yes, it does include at least some corporations (to confuse you more: both parties agreed it applied to at least some corporations).
To pull a quote from the case syllabus (summary of the opinion put out as part of the opinion document, right before the actual opinion): "Held: As applied to closely held corporations, the HHS regulations imposing the contraceptive mandate violate RFRA [not the constitution]" Further, the Court stated: "As we have seen, RFRA was designed to provide very broad protection for religious liberty. By enacting RFRA, Congress went far beyond what this Court has held is constitutionally required." Further, the RFRA was later amended to provide that the exercise of religion “shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.”
The Hobby Lobby case was NOT about "birth control." Yes, this case involved birth control, but Hobby Lobby had no problem with providing nearly all forms of birth control. In fact, even after winning at the Supreme Court, Hobby Lobby happily provides most forms of birth control. This case involved certain forms of birth control that would prevent the implantation of an already-fertilized egg (such as IUDs and the morning-after pill). The conception and pregnancy process is well-researched, but there are varying perspectives about when to consider a woman "pregnant." Hobby Lobby's view is that a woman is pregnant when her egg is fertilized. Thus, preventing the implantation of an already-fertilized egg terminates a pregnancy. [One more step.... drugs preventing the implantation of an already-fertilized egg = abortifacient (abortion-inducing drug).] Thus, since the IUD and morning-after pill work because they stop this implantation, Hobby Lobby didn't want to pay for them. They're totally fine with paying for contraceptives, but the loose use of terms creates the confusion. Check out this article for more explanation about the importance of words surrounding reproduction and birth control.
The moral of the story: The case is not about banning birth control any more than a restriction against under-age drinking is a "ban on alcohol." Yes, the category technically includes the subset, but it is so overbroad that it is imprecise and misleading. It's so broad that it's sensationalistic and inaccurate.
The Hobby Lobby case was NOT about "companies" or even "corporations." Yes, companies were involved in the case, but it's a gross generalization, just like "birth control." The case only involves corporations (not all companies), only for-profit corporations (not non-profit corporations), and only closely-held, for-profit corporations. This seems nit-picky, but isn't. Both sides on this case argued that corporations were persons under RFRA.
Companies are not always corporations. "Corporation" is a term of art referring to a company that has been incorporated in a state. Other forms of companies include, in California, for example, limited or general partnerships, sole proprietorships, and limited liability companies. Within the Corporate form, there are various forms as well--all with different legal implications. There are C-corps, S-corps, professional service corporations, and non-profit corporations. Double take: there are many corporate forms, including both for-profit and non-profit corporations within the term "corporation" and yet again within the term "company." The Court acknowledged this: "Congress provided protection for people like the Hahns and Greens by employing a familiar legal fiction: It included corporations within RFRA’s definition of 'persons.'"
Remember: Both sides on this case argued that corporations were persons under RFRA. Where they differed, however, is whether some or all corporations are persons under RFRA.
So, Hobby Lobby is pretty far down in subsets of "company," but we still have to add "closely-held." To be closely held, a corporation must have more than half of its outstanding stock owned by five or fewer people, and it cannot be a service corporation. That means that the company can be entirely run with an alliance of five or fewer people. That means the corporation cannot be publicly traded (at least regularly). This means the corporate heads value their ability to control their company over making money--potentially lots of money-- in stocks. That's a huge trade off. (Note: Hobby Lobby is actually an S-corp with slightly different rules, but because one family owns Hobby Lobby, the family is treated as one shareholder. The same concept applies, however.)
There was NO debate about whether or not a corporation could be a "person" under RFRA. Both sides on this case said corporations are people under the RFRA. The debate was much more specific than that. The government argued only non-profit corporations could qualify as people under RFRA, while Hobby Lobby argued that distinction was not necessary and, given legal rules of construction, should not be added after-the-fact by a court. Here's why:
The Dictionary Act, which was also passed by Congress and signed into law, codified the definitions for words not defined through out U.S. laws "unless the context indicates otherwise" (which I'll get to). This is section one of the chapter one of title one of the U.S. Code, where all the laws are "codified" or kept in one handy location. In other words, it's the "introduction" of the book, the first chapter, the "you should know what we're talking about when we say these words" section. This year, it was actually given the short title of "table of contents."
The Dictionary Act defined "person" to "include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals." Minnesota limited liability corporate law defines "person" as: "an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity." Minn. Stat. 322C.0102, subd. 20 (2014).
"Person" cannot be limited to only natural persons because Congress "chose" to not use natural person. Thus, it must include some corporate forms. Further, both sides in this case admitted at least some types of corporations were persons. The government's argument claims "context" should indicate that religious beliefs for for-profit corporations don't make sense, whereas religious beliefs for non-profit corporations do make sense. Thus, the context should imply that the RFRA may only apply to non-profit corporations. The flaw in this argument, though it is the most persuasive, is that it reads into a statute something that is not there, in complete contradiction to several legal rules of construction.
The Court's response to this claim is particularly articulate:
"This argument flies in the face of modern corporate law. 'Each American jurisdiction today either expressly or by implication authorizes corporations to be formed under its general corporation act for any lawful purpose or business.' While it is certainly true that a central objective of for-profit corporations is to make money, modern corporate law does not require for-profit corporations to pursue profit at the expense of everything else, and many do not do so. For-profit corporations, with ownership approval, support a wide variety of charitable causes, and it is not at all uncommon for such corporations to further humanitarian and other altruistic objectives. Many examples come readily to mind. So long as its owners agree, a for-profit corporation may take costly pollution-control and energy conservation measures that go beyond what the law requires." (internal citations omitted) In fact, there is such a thing as a "public benefit corporation" that completely destroys the argument the corporations cannot have a conscience or a non-business goal. Under the government's logic, even a public benefit corporation with an express value not related to commerce at all would not be able to follow those beliefs because corporations can't have values. Thus, while not all corporations embody morals or seek goals other than money-making, some can and do.
If ever there is a corporation that could embody values, which there are, it's Hobby Lobby. They're closely held, they exchanged the opportunity for extra profits in order to maintain a particular moral/religious direction of the company, and Hobby's Lobby's statement of purpose is "[h]onoring the Lord in all [they] do by operating the company in a manner consistent with Biblical principles." The single family that owns Hobby Lobby also owns a Christian Bookstore, which was also part of the lawsuit.
Hobby Lobby did NOT "open the floodgates" to all sorts of religious exemptions to neutral laws. Before I even say anything, I want you to read a few direct quotes from the majority opinion.
"Our decision should not be understood to hold that an insurance coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs.”
"[O]ur holding is very specific. We do not hold, as the principal dissent alleges, that for-profit corporations and other commercial enterprises can 'opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.' Nor do we hold, as the dissent implies, that such corporations have free rein to take steps that impose 'disadvantages . . . on others' or that require 'the general public [to] pick up the tab.' And we certainly do not hold or suggest that 'RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on . . . thousands of women employed by Hobby Lobby.' The effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero. Under that accommodation, these women would still be entitled to all FDA-approved contraceptives without cost sharing." (internal citations omitted)
"Under RFRA, a Government action that imposes a substantial burden on religious exercise must serve a compelling government interest, and we assume that the HHS regulations satisfy this requirement. But in order for the HHS mandate to be sustained, it must also constitute the least restrictive means of serving that interest, and the mandate plainly fails that test. There are other ways in which Congress or HHS could equally ensure that every woman has cost-free access to the particular contraceptives at issue here and, indeed, to all FDA-approved contraceptives."
"HHS and the principal dissent argue that a ruling in favor of the objecting parties in these cases will lead to a flood of religious objections regarding a wide variety of medical procedures and drugs, such as vaccinations and blood transfusions, but HHS has made no effort to substantiate this prediction... It is HHS’s apparent belief that no insurance-coverage mandate would violate RFRA—no matter how significantly it impinges on the religious liberties of employers—that would lead to intolerable consequences. Under HHS’s view, RFRA would permit the Government to require all employers to provide coverage for any medical procedure allowed by law in the jurisdiction in question—for instance, third-trimester abortions or assisted suicide. The owners of many closely held corporations could not in good conscience provide such coverage, and thus HHS would effectively exclude these people from full participation in the economic life of the Nation. RFRA was enacted to prevent such an outcome. In any event, our decision in these cases is concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them."
"The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. See post, at 32–33. Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal."
"Lee [involved religious objections to war and taxes to fund it, and it] was a free-exercise, not a RFRA, case, but if the issue in Lee were analyzed under the RFRA framework, the fundamental point would be that there simply is no less restrictive alternative [the second element of RFRA] to the categorical requirement to pay taxes."
The majority opinion clearly articulates that it does not open the floodgates (though even if it did, the floodgates would not discredit the underlying logic but would rather point to Congress' and President Clinton's poor law-making). The dissenting opinion, however, could open the floodgates. This has happened before--quite recently, actually. Scalia's dissent in Windsor (DOMA case) criticized the Court's majority for reaching the merits, or for striving to reach the merits, even though the majority opinion stated that they were not holding state bans on gay marriage unconstitutional. And, in an ironic turn of events, judges wishing to strike down the bans rely on Scalia's dissent to claim the decision did find the bans unconstitutional. Let me rephrase that: the majority says " We are not holding X," but a dissenter says "well, you basically are holding X," so people who want to hold X rely on the dissent to find that the majority held X (thus disregarding the express statements of the majority limiting the decision). Dissents like Scalia's and Ginsburg's often backfire,
Brief responses to other issues (because, let's face it, I'm not writing a thesis here):
Femal Hobby Lobby employees can still get all forms of contraceptives, including those not subsidized by Hobby Lobby.
There's a whole bypass system set up for the huge number of religious exemptions to the ACA. Basically, the women still get the coverage but the objecting employer doesn't subsidize it. Read the actual opinion for more information, but women Hobby Lobby can still get all forms of contraceptives.
Women are not one homogeneous group of beings with uniform opinions.
Are you one of those people who are outraged by this opinion because the women on the Supreme Court were all on the dissenting side of this case? Get over yourself. Women are not one homogeneous group of things defined by plumbing. We have diverse life experiences and beliefs. The dissents in this case are poorly argued, rely on bad logic, and miss the point. Also, if reminding you that sexism is behind such a belief is not enough to shake you up, here's a realization: President Obama appointed two of the women on the Supreme Court. Presidents identify justices who, as much as they can tell, agree with their own political and constitutional ideologies. That is not to fault the Presidents. They believe their beliefs are correct (duh), so they want to make sure the people they appoint are "correct." However, who appointed these women here indicates their political leanings, evidenced in many of their other rulings, far more than their gender.
Justice Ginsburg's dissent, while full of wonderful pull quotes and inspiring platitudes, is just disappointing.
Yes, Ginsburg is a spitfire of a woman, and she has been around for a long time. I respect her. I watch her. I appreciate the work she has to break sexist stereotypes. That doesn't mean her dissent made sense. Instead of supposing that my young, curious mind is superior to that of an esteemed Justice of the Supreme Court of the United States, I will instead point you to some relatively well-articulated responses to the dissent (though, by now, you should be able to spot many of the holes yourself). Check out this response to the Mother Jones "8 Best Lines from Ginsburg's Dissent."
Check out this PolitiFact article where Hillary Clinton's statement "A salesclerk at Hobby Lobby who needs contraception … is not going to get that service through her employer’s health care plan because her employer doesn’t think she should be using contraception." was rated 'mostly false' for use of such overgeneralizations. PolitiFact later updated the article to state that even though Clinton accurately relied upon Justice Ginsberg's dissenting opinion, the claim was still mostly false.
A good thing and a constitutionally guaranteed thing are not the same.
Obviously affordable healthcare is a good thing. Everyone wants affordable care for everyone else. The difference is that some "good things" are explicitly protected in the constitution and some are just good things that would be good... for the sake of goodness. For example, access to affordable housing and clean water is a good thing. It is undoubtedly a good thing, and while it might be a basic need, or even a basic "human right," that does not mean the American Constitution explicitly guarantees it. Contrarily, the right to bear arms (have personal guns) is explicitly protected by the Constitution. Thus, this meme has it all wrong, because it's not a "priorities" issue or a moral statement about what is more important. It's a legal issue of what actually is an express right in the Bill of Rights and what is a good thing that all people, by there simple existence as a human, morally should have access to.
Take your hand at pointing out what's wrong with the following memes (and pictures and presidential posts):
2.)
3.)
6.)
7.)
8.)
Hopefully I've written this post well enough that you'll now be able to realize the creator/poster of each and every picture above was misinformed, at the very best. Hopefully, you won't succumb to the emotional appeal but will stand up for education and accuracy.
#rantover
