Women Justices Rock the Hobby Lobby Argument

[babylonsister]

March 25, 2014
Women Justices Rock the Hobby Lobby Argument
Posted by Jeffrey Toobin




There were two lessons from Tuesday’s argument in the Hobby Lobby case in the Supreme Court. First, it’s very important that there are now three women Justices. Second, it’s even more important that it takes five votes to win.

The issue in the case is straightforward. The Affordable Care Act requires employers who provide health insurance to their employees to include coverage for contraception. The owners of Hobby Lobby, a large (thirteen-thousand-employee), privately held chain of stores, regard certain kinds of birth control (like the I.U.D. and morning-after pills) as forms of abortion, which is against their religious principles. Does the employees’ right to choose and obtain birth control trump the employer’s right to religious freedom?

There was little doubt where the Court’s three female Justices stood. After Paul Clement, the lawyer for Hobby Lobby, began his argument, twenty-eight of the first thirty-two questions to him came from Ruth Bader Ginsburg (four questions), Sonia Sotomayor (eleven), and Elena Kagan (thirteen). The queries varied, of course, but they were all variations on a theme. The trio saw the case from the perspective of the women employees. They regarded the employer as the party in the case with the money and the power. Sotomayor asked, “Is your claim limited to sensitive materials like contraceptives, or does it include items like blood transfusion, vaccines? For some religions, products made of pork? Is any claim under your theory that has a religious basis, could an employer preclude the use of those items as well?” Clement hedged in response. When Clement asserted that Hobby Lobby’s owners, because of their Christian values, did care about making sure that their employees had health insurance, Kagan shot back:

I’m sure they want to be good employers. But again, that’s a different thing than saying that their religious beliefs mandate them to provide health insurance, because here Congress has said that the health insurance that they’re providing is not adequate, it’s not the full package.

Indeed, Kagan recognized that Clement’s argument took on much of the Affordable Care Act, not just the contraception provision. “Isn’t that just a way of saying that you think that this isn’t a good statute, because it asks one person to subsidize another person?” she asked. “But Congress has made a judgment and Congress has given a statutory entitlement and that entitlement is to women and includes contraceptive coverage. And when the employer says, ‘No, I don’t want to give that,’ that woman is quite directly, quite tangibly harmed.”

more...

http://www.newyorker.com/online/blogs/newsdesk/2014/03/women-supreme-court-justices-hobby-lobby-birth-control.html?utm_source=tny&utm_campaign=generalsocial&utm_medium=facebook&mbid=social_facebook

[Deep13]

1. So Breyer will likely join them...

we need one more.

It figures that the pro-patriarchy side will be all male.

[JDPriestly]

36. Because of his decision in Smith v. Unemployment Division,

Scalia will look like a fool in the legal community if he sides with Hobby Lobby on this.

http://www.law.cornell.edu/supremecourt/text/494/872

It will look like he is prejudiced in favor of the idiosyncrasies and beliefs of the Catholic religion.

[Deep13]

38. He is prejudiced. nt

[NickB79]

40. Scalia has no problem looking the fool

None at all.

He probably wears it as a badge of honor.

[dsc]

44. In fairness he could argue, though it appears he isn't

that Congress passing the Religious Freedom Restoration Act changed the law and was intended to change the law from what it was when Scalia ruled in Smith.

[JDPriestly]

47. The Religious Freedom Restoration Act cuts both ways.

As I pointed out, various religions have very different views on birth control, specifically the morning after pill. Hobby Lobby owners have a very conservative, not mainstream view. Actually, Hobby Lobby should not be able to interfere in the religious freedom of its employees, and that is what it would do if it imposed their religious restrictions on employees who may belong to religions with different views on the birth control, abortion and the morning after pill. After all, Hobby Lobby is not allowed to discriminate against employees based on religion.

[dsc]

51. I certainly don't agree that Hobby Lobby, or any other corporation for that matter

should be permitted to take advantage of the law but I think the law change did overturn Scalia's decision in Smith in regards to people.

[SunSeeker]

52. Only if you think denying women birth control coverage is not a burden on women.

And making a soulless corporation pay for health coverage is a huge burden to its religious fanatic owners. It comes down to a weighing of burdens. And the conservative SCOTUS majority has their thumb on the scale in favor of the Christian evangelical wingnuts.

[dsc]

53. smith had nothing to do with birth control

it was about peyote. I have no idea why your reply would be to my post.

[SunSeeker]

54. My point was it still comes down to a weighing of burdens, even with the new law.

It still comes down to whether you (i.e. whoever is deciding the case) think the burden on the religious adherent is greater than the burden on society should you let the religious adherent have their way. The peyote decision by Scalia was just him thinking letting peyote smoking adherents have their way would ruin society, cause "chaos."  He had to put it rather dramatically since he was in essence denying the peyote smoker the right to practice a central tenet of his religion, smoking peyote. Of course, if the case had been about whether Catholics can do some otherwise illegal thing as part of their communion ceremony, I think his decision would have been different. Despite all those statues you see, Lady Justice does not wear a blindfold, and certainly Scalia doesn't. I find SCOTUS decisions to be results driven.

Now look at the "burden" on Hobby Lobby. All they're being asked to do is provide health insurance to their employees, insurance their employees earn through the sweat of their brow. What Hobby Lobby is saying is that it is such a huge "burden" to require them to provide funding for birth control methods they disagree with. But isn't this burden for them just part of living in a pluralistic society where its citizens have freedom of religion? Even if Hobby Lobby didn't cover contraception, their workers would undeniably still get paid and could undeniably still used "Hobby Lobby money" to go out and get birth control, or even, gasp, an abortion.

The argument that there is a special burden on Hobby Lobby's practice of religion is pure sophistry, even putting aside for a moment the ridiculous concept that a soulless corporation can have a religion. Hobby Lobby itself is not being asked to use birth control. The burden on Hobby Lobby really is tiny, if it exists at all.

So how does SCOTUS tip the scale in this balance in favor of Hobby Lobby? By disingenuously suggesting the burden on women and society of not covering legal birth control is not much of a burden at all. Of course they are factually incorrect. Denying medical coverage of birth control for low wage workers is basically denying them birth control decisions they would otherwise be free to make. More of them will have unplanned pregnancies, precisely in households that can least afford it. This is terrible for society. But Clement was there playing right along with the conservative SCOTUS majority saying it is no burden on women nor society. It really was a sickening spectacle.

My point was no new law made this argument suddenly possible. It was just the same old outcome determinative song and dance, discounting the interests of those the conservative SCOTUS majority does not like, and putting their thumb on the scale in favor of those they do.

Now do you get what I am saying?

[dsc]

55. yes that is clearer

now I see what you are saying. The one thing I will say is that while the burden on women here is great, there are other ways for the government to accomplish the goal of getting women contraception. That is why I think for actual religious organizations such as churches and charities, an exemption should be granted, as one was. For businesses, even closely held ones, it is absurd.

[SunSeeker]

56. What is the burden for religious organizations such as churches and charities?

How are they burdened by being required to provide the same sort of health coverage that other employers provide?

[dsc]

58. if it is agains their religion it is a moral burden

I also think churches shouldn't be required, and generally aren't required, to abide by other laws such as non discrimination. I do think charities should get less leeway than churches in that regard but churches are quite different.

[SunSeeker]

60. How can some hypothetical "moral burden" of an entity outweigh the burden on women?

These entities already have this supposed moral burden. They pay their employees money. That money can undeniably be spent on anything. Are you suggesting churches and charities can follow their employees around and make sure they don't spend it on stuff that could "offend" the church? If they have no right to know what their employees spend their money on, how come they get to know what legal, medical services their employees use their health coverage for?

How does a church or a charity, or any other non-human entity, suffer a "moral burden"?

How can that possibly outweigh the moral and PHYSICAL and financial burdens of an unwanted pregnancy, both to the woman and society?

BTW, almost all of these entities, including Hobby Lobby, and Notre Dame, provided health insurance to their employees that covered contraception in the past. Suddenly, with the right wing political propaganda campaign against the ACA, and anything Obama does, did they suddenly discover this "moral burden." If it wasn't a moral burden under Bush, it's not a moral burden under Obama.

[dsc]

63. I wouldn't give the exemption either Hobby Lobby or Notre Dame

but I would to a Catholic Church. Just like I think both of the above should have to hire Jews while the Catholic Church shouldn't.

[SunSeeker]

64. I agree that Catholic churches should be free to hire only Catholic priests/nuns

...just like law firms have a right to only hire licensed lawyers.  It's part of the job description.

But what burden is it to the Catholic church to provide the same medical coverage as any other employer? Or for that matter, what burden is it for them to hire a Buddhist gardener?

[freshwest]

2. Excellent and true to the spirit of equality. Well done, may they prevail in all of these cases. n/t

[sheshe2]

3. The Lady Justices

of SCOTUS rock!

Thank you Justice's Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

[CTyankee]

59. And this is exactly why we need to have gender equality on the Supreme Court!

Please let Obama's next SC pick be another WOMAN!

[Takket]

4. There is only one question...

these ladies need to ask. "If we rule in favor on the Government, will you (Hobby Lobby) close your doors forever to prevent yourselves from possibly paying for contraception?"

The answer of course will be no, in the end, the money will mean more to them to their beliefs, and that makes their argument null and void in my opinion.

[Glitterati]

6. Excellent point!

And, we can hope that will happen.

[Kber]

42. Hmm

Hadn't considered that, but you are, of course, correct.

[SunSeeker]

62. Exactly. And they wouldn't be selling cheap crap made in China, land of forced abortions.

If they have a "religion, " then it must involve worship of the Golden Calf...or Mammon.

[Glitterati]

5. They deserve credit for more than being women jurists!

Intelligent, well researched jurists!

Because, history shows that women like Sandra Day O'Conner sure as hell wouldn't have asked those questions!

[La Lioness Priyanka]

41. o'conner was pro-choice. nt

[llmart]

7. Another reason we need more women on the SC....

and in Congress. And another reason that having a Democrat for President is extremely important. For all those on here who are already wringing their hands over the possibility of Hillary for President, just think about Supreme Court appointees if a Repuke is elected.

[Glitterati]

8. To support your point, we need more DEMOCRATIC women

on the Supreme Court.

Because women like Sandra Day O'Conner sure as hell wouldn't have asked those questions.

[llmart]

9. Well, I guess I didn't say "Democratic women in Congress" either....

but I sort of thought that goes without saying since this is a Democratic forum. I certainly don't think we need any more crazy ass Bachmans in Congress.

[Glitterati]

10. ROFL

or that crazy lady from Tennessee - Marsha Blackburn! I think she's the "new" Bachman.

We're working on replacing some crazy ones from GA too - Paul Broun, Phil Gingrey, Jack Kingston. Only a few this go round, but maybe we can get more of them out of Congress during the next election. All these fools are running for the Senate (current congressmen) and will be up against Michelle Nunn - daughter of former Senator Sam Nunn.

And, yeah, Nathan Deal. Crazy former Congressman, now Governor of GA - we're working on replacing him with a descendant of Jimmy Carter - his grandson, Jason Carter.

Paul Broun is the fool who said that evolution and the big bang theory are "lies straight from the pit of Hell." And, Phil Gingrey (who is an OB/GYN) defended the fool who said women who are raped won't get pregnant because their bodies......who remembers the crazy.......something stupid.

[Mr.Bill]

11. Exactly.

Two terms of Hillary Clinton (or almost any Democrat) and we could own the Supreme Court for decades.

[Glitterati]

13. I can't think of any Democrats

who wouldn't make choices like Elena Kagan and Sonia Sotomayor.

[Hekate]

34. Sandra Day O'Connor was reliably pro-choice and a critical vote on the High Court

It's a safe bet that she sure as hell WOULD have asked those questions.

[1StrongBlackMan]

12. It's great that these women are on the Court; ...

however, this case, at it's core, is not about Birth Control ... this case is really about growing the constitutional protections for non-people people, e.i., corporations.

[Glitterati]

14. Of course it is

But that doesn't take away from the excellent questions the women of the SC asked today - and the arguments they supported which point that out.

If you read any of the articles about the hearing today, you realize it was the WOMEN of the SC who asked the difficult questions.

They deserve credit where credit is due.

[1StrongBlackMan]

15. Didn't I start my post by saying ...

It's great these women are on the Court?

[Glitterati]

17. You did

but, to this untrained ear, the remainder of your post seemed to diminish the work done by these women today.

I apologize if I misunderstood, but I'm just saying how it came across to me.

[1StrongBlackMan]

25. I would NEVER diminish the work of women ...

doing good.

[Sarah Ibarruri]

16. The female justices were clearly supportive of the contraception mandate, while the male justices

were skeptical.

http://www.npr.org/2014/03/25/294385167/birth-control-mandate-goes-under-high-court-microscope

That definitely says something.

[Glitterati]

18. Of course it does

Just like the sign outside the SC today that said "If men could get pregnant, birth control would come from gumball machines and they would be bacon flavored."

[Mr.Bill]

20. That's a good one. I also like this one:

If men could get pregnant abortion would be a sacrament in the Catholic church.

[Sarah Ibarruri]

23. LOL! nt

[Vattel]

19. I hate to say it, but I think the law is on the side of the religious nuts this time.

[Glitterati]

22. I think you're wrong for one reason

They would be opening a door to corporations like Walmart to bring a case to the SC for every law they disagree with.

The right wing Supremes, if nothing else, do NOT want more cases to hear. They're whining already about budget cuts.

They open that door, and those "poor" Supremes will never get another day off!

That door just swings too wide......

[DebJ]

27. The Supreme Court can and does decline to hear any case they don't want to hear,

and no reason need be given at all. They only hear a very, very small portion of the cases that are sent to them.

http://www.supremecourt.gov/faq.aspx
"How many cases are appealed to the Court each year and how many cases does the Court hear?
The Court receives approximately 10,000 petitions for a writ of certiorari each year. The Court grants and hears oral argument in about 75-80 cases."


How they decide which cases to review:
http://supremecourt.c-span.org/Video/JusticeOwnWords.aspx

[Glitterati]

28. However, they only SUBMIT the cases like Hobby Lobby

BECAUSE the lower courts ruled against Hobby Lobby.

Denying cert means the lower court ruling STANDS.

[DebJ]

29. Excellent point.

[Glitterati]

30. Another point which just dawned on me

The government could ALSO request a SC ruling if they lose the case.

BOTH sides can submit to the SC.

[pacalo]

32. Not if you pay attention to the questions being asked...

Sotomayor asked, “Is your claim limited to sensitive materials like contraceptives, or does it include items like blood transfusion, vaccines? For some religions, products made of pork? Is any claim under your theory that has a religious basis, could an employer preclude the use of those items as well?” Clement hedged in response.

And, edited to add this from Talking Points Memo:

"Your understanding of this law, your interpretation of it, would essentially subject the entire U.S. Code to the highest test in constitutional law, to a compelling interest standard," she told Paul Clement, the lawyer arguing against the mandate for Hobby Lobby and Conestoga Wood. "So another employer comes in and that employer says, I have a religious objection to sex discrimination laws; and then another employer comes in, I have a religious objection to minimum wage laws; and then another, family leave; and then another, child labor laws. And all of that is subject to the exact same test which you say is this unbelievably high test, the compelling interest standard with the least restrictive alternative."

These points illustrate why religious beliefs should be not be interwoven into lawmaking.

[LeftyMom]

33. Insurance is part of the employee's compensation for their labor.

Once the labor is provided the company has no more say over how the employee uses their health insurance than over how they spend their paycheck. The labor for compensation exchange was already made.

HL has the option of paying their employees purely in paychecks and not in health coverage, but there are tax consequences for doing so. Of course employees would still have the option of using their compensation for their labor to buy birth control or Satanic Bibles or high quality fabric and yarn or any other thing that offends the owners at HL.

Finally HL's assertion that some contraceptives are causing abortions is contrary to the facts. While I realize that's true of many religious beliefs it's especially offensive to damage their female employees based on complete nonsense.

[Vattel]

35. You make some very good points.

I think the best argument for ruling against HL is to say that ACA does not "substantially burden" HL's "free exercise of religion" for some of the reasons you state. If it is conceded that it does, then because the Religious Freedom Restoration Act requires "strict scrutiny" for any law that does substantially burden the free exercise of religion, and that the the government must achieve its end in the way least restrictive to religious expression, the ACA birth control requirement will go down in flames.

[JDPriestly]

37. I strongly disagree with you.

Scalia decided years ago that a religious belief, in that case, the Native American smoking of peyote as a part of their religious ritual, does not excuse you from complying with a generally applicable law. Christians assume that everyone agrees with them that abortion is immoral and wrong. But not everyone does.

Different religions have different theories about when life begins. I have not been able to figure out why Catholics especially but other conservative Christians think life begins at conception. The Bible talks many times about "the breath of life" which would in my view place the beginning of life at the moment a baby takes its first breath.

In Europe in the Middle Ages, life was considered to begin at the quickening or about in the 5th month when babies' movements in the womb are normally felt by the mother. (I felt my babies move in the third month, and due to other medical problems with one of my pregnancies, that was when I was first realized that I might be pregnant.

The Jewish religion has yet another view on when life begins.

If freedom of religion is to be PROTECTED, then Hobby Lobby must lose.

If freedom of religion is to become freedom for religious Catholics and fundamentalist Christians to impose their beliefs on their employees and who knows who else, the Hobby Lobby wins.

Take your choice.

[tarheelsunc]

65. Exactly, it's hard to understand how the Bible would lead one to believe life begins at conception

Besides the "breath of life" being mentioned multiple times, the Bible also prescribes a much lighter punishment for causing a miscarriage than for murdering someone. If life in a Biblical sense begins at conception, this wouldn't be necessary because it would qualify as murder.

[LanternWaste]

39. What specifically leads you to this conclusion?

What specifically leads you to this conclusion?

[Vattel]

43. Without going into too much detail, I see it like this:

The Restoration of Religious Freedom Act requires laws that substantially burden the free exercise of religion to pass a strict scrutiny test. There might be a case to be made that ACA does not substantially burden HL's free exercise of religion, but I am inclined to think that because the folks at HL sincerely believe that God regards taking the life of a fertilized ovum as murder, forcing them to provide insurance plans that cover things like a morning after pill does substantially burden their free exercise of religion. Because there is no way that the government's interest in forcing HL to provide insurance that covers contraception methods that destroy fertilized ovums is compelling enough to pass a strict scrutiny test, HL should win their case.

[Beartracks]

45. Then wouldn't it also be true that forcing them to provide a SALARY...

... that could pay for things like a morning after pill substantially burdens their free exercise of religion?



=====================

[Vattel]

46. I appreciate your argument, but I think there is a big difference there.

If my benefits package has to include free access to Satanic Bibles (maybe with a co-pay), that is very different from being required to pay a salary that might be used to buy a Satanic Bible.

[Beartracks]

48. But both the salary and the benefits are part of the same compensation package.

I'm not seeing the difference between:

1) being required to offer benefits that might be used to buy a Satanic Bible.

2) being required to pay a salary that might be used to buy a Satanic Bible.


Is it because the undesirable book might be obtained "free" with the benefits?

======================

[Vattel]

49. Okay, good question.

compare these two cases:

1. being required to pay a salary that could be used to buy a Satanic bible.

2. being required to provide a Satanic bible if one is requested.

I think that the second case would substantially burden the free exercise of religion. I also think that the HLA case is relevantly similar to the second case. Hence my conclusion. But maybe I am wrong. I am certainly open to arguments on the other side.

[Skittles]

21. thanking President Obama again

I really like his picks

[Glitterati]

24. Me too!

Awesome job, President Obama!

[SheilaT]

26. I just wish that for the next couple of decades

or whatever it takes, every single retiring Supreme Court Justice is replaced by a woman. Until all nine justices are women. And for anyone out there thinking that's outrageous, keep in mind that for the first nearly two hundred years there were men and only men on the Supreme Court. And almost as long no African Americans.

[Cha]

31. Thank you Justices Ginsburg, Sotomayor, and Kagan!

[IrishAyes]

50. Our three best Supremes!

[AngryAmish]

57. Who wrote that headline?

It seems like buzzfeed, not the newyorker.

[SunSeeker]

61. It was the rockin' New Yorker.

And yes, I checked the link in the OP. LOL