Posts © 2011-2012 by Gerald G. Day







Tuesday, July 15, 2014

July 15, 2014
The Supreme Court continued its run of controversial decisions with Hobby Lobby,[1] which involved religious objections to the requirement, of regulations under the Affordable Care Act, that health insurance policies include all of the methods of contraception which have been approved by the FDA. The plaintiffs, corporations and their owners, claim that four specified methods of contraception involve destruction of a fertilized egg which is, in their view, equivalent to abortion, which they reject on religious grounds. They "have no objection to the other 16 FDA-approved methods of birth control."
  The majority opinion, by Justice Alito, is superficially less ideological than others in the recent series. It is based on a statute concerning the exercise of religion which arguably applies and, rather than merely declaring that corporations are legal persons, which has led to so much criticism, it cites another statute which so states. However, it still manages to get everything wrong. There are two issues, religion and corporate law, and other considerations.
 A. Religion
 The Religious Freedom Restoration Act (RFRA) was adopted by Congress in 1993. It was a reaction to a decision of the Supreme Court, Employment Division v. Smith,[2] which upheld a refusal by the State of Oregon to award unemployment benefits to two men discharged by their employer for ingesting peyote. That act took place in a ceremony of the Native American Church, which used peyote as part of its ritual. State law prohibited use of drugs, with no exception for religious use. The Court upheld the Oregon law, and the denial of benefits, on the ground that a law of general application, which makes no attempt to single out religion, is valid and does not violate the First Amendment guarantee of religious freedom, even though it has a collateral effect on religious practices.
RFRA was designed specifically to overturn Smith, and to mandate that such cases be measured against an earlier standard, which subjected any impact on religion to strict scrutiny. The operative section of RFRA reads as follows:  
(a) In general. Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.
(b) Exception. Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person— (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.[3]
Legal recourse is afforded for violation of RFRA: "A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government."[4]

The exercise of religion is defined[5] oddly, vaguely and circularly: "the term ‘exercise of religion’ means religious exercise, as defined in section 2000cc–5 of this title", which states that the "term ‘religious exercise’ includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief."[6] That fails to tell us what the exercise of religion is but, by decoupling it from a system of religious belief, makes it open-ended; virtually any assertion could be religious under that definition.
 Faced with a statute so sloppily drafted, a court might refuse to apply it, for the reason that there is no way to know what is covered. This Court especially might be so inclined, having little respect for the ability of Congress to draft statutes clearly. (McCutcheon v. Federal Election Commission provides an example of that attitude; see my note of May 13, item 11). However, this Court is nothing if not flexible; here the statute is a flawless statement of principle.
  Vague as the language is, it does include an implicit limit, by omission: it does not prohibit burdening religious belief, and does not provide judicial relief for such a burden. Those provisions are limited to religious exercise, or the exercise of religion. There is a savings clause which refers to belief: "Nothing in this chapter shall be construed to authorize any government to burden any religious belief."[7] However, the government isn’t attempting to use RFRA to burden belief, so that is irrelevant. Even ignoring that, the clause provides no affirmative relief, so cannot be the basis of this action. As we shall see, that did not bother Justice Alito.
 At no point does the opinion question whether the objection by the plaintiffs to providing the four types of contraception is an exercise of religion. It simply assumes that the statute controls. Here is Alito’s summary of the holding:
Since RFRA applies in these cases, we must decide whether the challenged HHS [Health and Human Services] regulations substantially burden the exercise of religion, and we hold that they do. The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients.
Buried in that conclusion is this formula: an objection, based on religious belief, to providing insurance which covers the use of a certain type of contraceptive is "an exercise of religion" which, by definition, is "a religious exercise," which in turn is "any exercise of religion." That is so inane that only a court focused on a result could avoid subjecting the claim and the statute to critical analysis. (Note that the reference here is to the owners; only later are the corporations brought into the picture).
 Alito, perhaps aware of the implications of his conclusion, rewrote the statute to avoid the religious exercise problem:
HHS and the dissent note that providing the coverage would not itself result in the destruction of an embryo; that would occur only if an employee chose to take advantage of the coverage and to use one of the four methods at issue. This argument dodges the question that RFRA presents (whether the HHS mandate imposes a substantial burden on the ability of the objecting parties to conduct business in accordance with their religious beliefs) and instead addresses a very different question that the federal courts have no business addressing (whether the religious belief asserted in a RFRA case is reasonable). [emphasis added]
This misreading of RFRA is not a momentary slip; at several points he either states the issue in terms of belief or runs together the concepts of belief and the exercise of religion.
 He also is mistaken in asserting that reasonableness is not a factor to be considered; it is the only protection against ridiculous, contrived "religious" claims and the only way to rescue the statute from absurdity.
 The Court did not make any determination as to whether the plaintiffs’ understanding of the effects of the four methods is factually sound. (Here again the statute helps the majority, for it too ignores the question of factual validity. However, that is just another reason to treat the statute with care, if not disdain: any assertion garbed in religious terms could be the basis for a claim, even if divorced from reality). The following is the information provided in the opinion as to whether the four methods amount to abortion; it simply describes a disagreement:
Although many of the required, FDA-approved methods of contraception work by preventing the fertilization of an egg, four of those methods (those specifically at issue in these cases) may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus.
[footnote to the above] The owners of the companies involved in these cases and others who believe that life begins at conception regard these four methods as causing abortions, but federal regulations, which define pregnancy as beginning at implantation, . . . do not so classify them.
The argument seems to come down to this: the plaintiffs’ exercise of religion is burdened because, if Hobby Lobby provides compliant insurance, some of its female employees probably will make use of the contraceptive coverage; some smaller number of those may use one of the four disapproved methods; those methods may in some cases prevent development of a fertilized egg, and that, according to plaintiffs’ belief, is the equivalent of abortion and therefore immoral. This is too tenuous a connection to take seriously. In addition, it assumes that the practice of religion includes controlling the behavior of others.
  The other half of the test is that the burden to the plaintiffs’ exercise must be "substantial." Justice Alito found that the penalties which HHS could impose for failure to have a conforming policy are very large and therefore a substantial burden. Assuming that the opinion is accurate in describing them, the possible penalties are onerous indeed. However (leaving aside the postponement of the enforcement of employer penalties) we can pass that, because Alito has fastened onto the wrong consequence of the plaintiffs’ action. Even assuming belief to equate to the exercise of religion, the burden imposed by the law is the plaintiffs’ unwilling, innocent, indirect, hypothetical complicity in what they believe to be immoral behavior. That is no more substantial a burden than one we all face: living in an imperfect society in which choices are made that we oppose or deplore.
  The potential monetary penalties would be the consequence of flouting the law, not of religious exercise so, apart from their being speculative at this point, they are not relevant.
   B. Corporations
 The Citizens United opinion stirred much comment about corporate personhood, including assertions that the Court had invented the concept. Alito attempted to silence that by citing a statute which provides as follows: "In determining the meaning of any Act of Congress, unless the context indicates otherwise . . . the words ‘person’ and ‘whoever’ include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals. . . .[8] He wasn’t altogether successful. For example, an e-mail from "The Pen" claims that "Alito says ‘corporation’ MEANS a natural ‘person,’ . . ." Alito didn’t say that, but the confusion is perhaps understandable. His attempt to find that corporations can have religious beliefs in effect merges, or confuses, the corporate entity and its human owners.
  As noted above, Alito’s summary refers to the religious exercise of "owners of the businesses." However, the desired result required finding that the corporations also were protected. This would require finding that corporations "exercise religion." However, Alito didn’t establish that.
 He began his analysis badly, by referring to legal personhood as a "fiction," not exactly the best way to defuse an argument. More accurately it is, as shown by the cited statute, a definition, which is in turn a matter of convenience in drafting. The effect is to include corporations in the rights granted to "persons," unless the context requires otherwise. The issue of whether a corporation can exercise religion certainly is one where the context should raise some doubt.
 Possibly because of that, Alito fudged:
But it is important to keep in mind that the purpose of this fiction is to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends. . . . When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people.
That isn’t altogether accurate, but it furthers his attempt to blur the line between people and corporations, and leads to this conclusion: "protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies." That assumes that corporations exercise religion, the very point he supposedly is establishing. In other words, corporations must have these rights so that owners may be protected.
 However, that won’t work because, in some closely held corporations there may be religious disagreement between owners. Then the corporation’s alleged exercise of religion, presumably an extension of the majority owners’ views, may offend the other owners. So much for the pass-through, protect-the-owners theory. This shows that the supposed special case of the closely-held corporation is just so much rhetoric: if the minority owners in a closely held corporation may be ignored, so may shareholders in widely-held corporations; perhaps they too can engage in the exercise of religion.
 The statutes offer no assistance on this point, and could be interpreted as covering all corporations, of whatever size and makeup. Justice Alito limited his analysis to "closely held" corporations, but how much of a limitation is that? We don’t know, as no definition was offered. In the case at hand, each corporation was owned by members of a single family, but that isn’t offered as a test. Depending on the definition (there are several), the number of closely held corporations, and the number of employees, could be huge.
 C. The government’s position
 The decision was made easier, if no more convincing, by positions taken by the government. The most disadvantageous to its argument is the exemption for contraception coverage given to religious organizations, which are defined as follows:
For purposes of this subsection, a “religious employer” is an organization that meets all of the following criteria: (1) The inculcation of religious values is the purpose of the organization. (2) The organization primarily employs persons who share the religious tenets of the organization. (3) The organization serves primarily persons who share the religious tenets of the organization. (4) The organization is a nonprofit organization as described in . . . the Internal Revenue Code . . . .[9]
The government argued that there is a legitimate distinction between a non-profit organization devoted to religious work and a profit-making corporation owned by religious people. The distinction is plausible and should have been upheld, but Mr. Obama made HHS’ task more onerous by granting that exemption, as Alito argued that it should apply to these plaintiffs.
  The other problem is the penalty schedule for non-compliance. It should not have been the measure of the burden, but the penalties are potentially so drastic as to make HHS look like a tyrant.
D. Scope of the decision
 Alito’s opinion is in part an exercise in duplicity. After referring repeatedly the four challenged methods of contraception, and noting that the plaintiffs had no objection to the others, he summarized the holding as follows: "Our responsibility is to enforce RFRA as written, and under the standard that RFRA prescribes, the HHS contraceptive mandate is unlawful. The contraceptive mandate, as applied to closely held corporations, violates RFRA." That could be read as abandoning the narrow focus of the opinion and calling all contraception into question, which is exactly what happened. The day following its decision, the Court issued orders in several cases in which all forms of contraception were challenged. Where the government had prevailed, the case was sent back with instructions to reconsider in accordance with Hobby Lobby; where the government had lost, its appeal was denied.[10]
  The obvious moral to the story is that we need an inclusive government health care program, such as Medicare for all. The employer-based system was past due for retirement even before this controversy.
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1. Burwell, Secretary of Health and Human Services, et al. v. Hobby Lobby Stores, Inc., et al.
2. 494 U. S. 872 (1990)
3. 42 U.S. Code § 2000bb-1 (a), (b)
4. 42 U.S. Code §2000bb-2 (4)
5. 42 U.S. Code § 2000cc–5 (7)(A)
6. 42 U.S. Code §2000bb-1 ( c)
7. 42 U.S. Code § 2000bb–3. The operative sections refer to religious exercise or exercise of religion eleven times, belief zero.
8. 1 U.S. Code §1
9. 1 U.S. Code §1
10. http://www.scotusblog.com/2014/07/wider-impact-of-hobby-lobby-ruling/

Tuesday, July 1, 2014

July 1, 2014
The eagerness by some conservatives to reenter the Iraq quagmire is yet another instance of rewriting history, of at least of convenient forgetting. What’s worse, the media seem as determined not to learn as the ideologues. On June 23, Brian Williams introduced a segment on ISIS with these words: "eleven years after this US invasion of Iraq which was meant to make that country safe for democracy. . . ." Perhaps he was indulging in irony, but it didn’t sound that way. In any case, the media hardly have distinguished themselves regarding Iraq, eleven years ago or now, when they turn to the same fools who led us into the mess, treating them as foreign-policy experts.
There is an opposing, if hardly mainstream, point of view: the architects of the invasion of Iraq are criminally liable. One expression of that point of view was offered by Katrina vanden Heuvel: "At best a fool=s errand, at worst a criminal act, this great blunder helped set the stage for Iraq=s chaos today."[37]  William Rivers Pitt was more emphatic: "Let me put it plainly: these people do not belong on my television. They belong in prison, for the crimes of theft, torture and murder."[38]  The second part of each formula is perhaps a bit much, but the first certainly is true. As Pitt said earlier in the same piece, "The worst part is that they're all on my television again, trying to blame President Obama for the circumstances created by their own . . . decisions."
Ms. vanden Heuvel also contributed the perfect put down, advising William Kristol that "[w]e don=t need armchair warriors, and if you feel so strongly, you should, with all due respect, enlist in the Iraqi army."[39]  I=d second that without respect; none is due.

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37. http://www.washingtonpost.com/opinions/katrina-vanden-heuvel-where-is-the-accountability- on-iraq/2014/06/16/eba0ff24-f597-11e3-a3a5-42be35962a52_story.html

38. http://www.truth-out.org/opinion/item/24490-william-rivers-pitt-they-belong-in-prison-not-on- tv; see also http://www.huffingtonpost.com/h-a-goodman/neocons-should-be-held-cr_b_ 5514337. html

39.http://www.thenation.com/blog/180459/vanden-heuvel-tells-kristol-if-he-wants-war-he-should- join-iraqi-army#