Super Lawyers
William C. Altreuter

Tuesday, July 01, 2014

I thought I'd take a look at the Hobby Lobby decision. Big mistake.
In holding that the HHS mandate is unlawful, we reject
HHS’s argument that the owners of the companies forfeited all RFRA protection when they decided to organizetheir businesses as corporations rather than sole proprietorships or general partnerships. The plain terms of
RFRA make it perfectly clear that Congress did not discriminate in this way against men and women who wish torun their businesses as for-profit corporations in the manner required by their religious beliefs.
I distrust statements like "perfectly clear".
The owners of the businesses have religious objections to
abortion, and according to their religious beliefs the four
contraceptive methods at issue are abortifacients. If the
owners comply with the HHS mandate, they believe they
will be facilitating abortions, and if they do not comply,
they will pay a very heavy price—as much as $1.3 million
per day, or about $475 million per year, in the case of one
of the companies. If these consequences do not amount to
a substantial burden, it is hard to see what would.
Two points. First, the matter of what sort of factual showing has to be made here. The science that says the contraceptive methods at issue are not, in fact, abotrifacients,  but apparently that doesn't matter because the superstitious beliefs of the plaintiffs trump science. I think that is bizarre. A second point: how can Alito say that something is or is not a substantial burden in a vacuum? Sure, it sounds like a ton of dough, but compared to what? Shouldn't this be measured against some objective number? Annual gross or something?

I can't bring myself to read 90 pages of this stuff. It is outcome determinative jurisprudence, and it makes me sad. Look, religious freedom means that the government shouldn't prevent you from believing what you want-- it shouldn't mean that anyone has a right to place their beliefs before anyone else's. On top of that, business entities are  not the same as the people who own the business-- business entities are specifically created to be different identities. The idea of a corporation is that it allows for the continuous accumulation of wealth in perpetuity, and that it shields the shareholders who benefit from that  accumulation from personal liability.

Happy Canada Day, everyone. There are days when I think it is the last sane place in the world.

| Comments:
What will stop your Jehovah's Witness bosses from denying you coverage for a blood transfusion, even when you yourself are not an adherent to that cult?
This ruling is one of those moments when I just sit and wonder if our country is too far gone to pull back.
Five white men, all past the age of procreating, have made a decision for the women of America. Congress has got to fix this! Maybe this is the straw that will break the camel's back. Surely, most women see this as a stupid decision even if they missed the earlier one about freedom of speech by Corporations. Surely, a fair number of conservative women should be convinced that they can vote for a Democrat with a Right to Choose platform.

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