Here's a point about the Hobby Lobby case that no one is addressing . . .

[markpkessinger]

OK, so here's a point concerning the Hobby Lobby case that was argued yesterday before the Supreme Court that I've not seen addressed anywhere. Hobby Lobby is a privately held corporation (Hobby Lobby Stores, Inc.), whose shares are owned by founder David Green and members of his family. By virtue of incorporating his business, Mr. Green and his family enjoy the chief benefit of incorporation: the shielding of their personal assets from the debts and liabilities of the business. (Google "benefits of incorporating" and you will see that that freedom from personal liability is cited in virtually every article on the subject as being the primary reason to, and benefit of, incorporating a business. Once a business is incorporated, as a matter of law, the business is treated as a wholly separate entity from its individual shareholders, even where, as here, there may be only a handful of shareholders who are all members of the same family. The corporate entity, and not the shareholders, becomes solely responsible for the debts and liabilities of the business. And generally speaking, only the corporate entity can be sued over any disputes involving the business. (There is something called "piercing the corporate veil," where one can go after shareholders and officers individually, but that is only available under very exceedingly rare and narrow circumstances.) Owners of unincorporated business -- partnerships, sole proprietorships, etc., don't enjoiy these same protections.

So, given that Hobby Lobby is a completely separate entity from its owner-shareholders in every other respect, how is it that the owners, individually, can claim that their religious liberty is in any way infringed when the _corporate entity_ -- from whose interests they have legally and voluntarily separated themselves -- is required to comply with a regulation that requires it to do something the individual shareholder-owners have a religious objection to doing? Seems to me they are enjoying all he benefits of having legally separate interests, yet are seeking, in this one particular area, to claim those interests are one and the same. If they are going to enjoy the benefit of limited liability, should they not also be barred from imputing matters that are purelye a matter of individual conscience onto that separate corporate entity?

[jmowreader]

1. An interesting thought, thanks

We know legally, corporations are people. (Yes, it pisses me off too. But res ipsa loquitor, baby.) These people, however, are different from the kind with two legs in that they don't eat, don't breathe and don't go to church. As a corporate person is officially an atheist, how then can it claim we're fucking with its religion?

Someone already pointed out that allowing religious exemptions to any law that comes down the pike will eventually lead to someone demanding a religious exemption to the law against taking your daughter (you know, the one who dyes her hair purple and wears too much eyeshadow) down to the church and stoning her to death.

[SharonAnn]

65. I see it as a "reverse piercing of the corporate veil". Legal term for corporation being

separate from actual persons who own/control it.

[Warpy]

2. Let's hope the Opus Dei branch of the Supremes figures this one out, too.

Their case simply has no merit. If the weren't picking solely on women, it would never have gotten this far. A corporation with JWs as majority shareholders would never be issued a religious waiver against covering blood transfusions for their employees, because that could hurt men.

[cui bono]

3. Mike Papantonio talked about this on the Ed Show.

I just watched the video earlier here:
http://www.democraticunderground.com/1017183012


He said that SCOTUS has sided with corporations 93% of the time but that this time corporations are staying quiet on the issue because if they rule in favor of Hobby Lobby that opens the ceos/owners up to litigation. He said he will make it a point to go after them. You should watch the video since my paraphrasing leaves a lot to be desired.

[markpkessinger]

5. Thanks for the tip -- I will watch it now! n/t

[cui bono]

6. You're welcome!

Give it a rec so it gets on the greatest page!

[The Blue Flower]

55. He said the same thing to Thom Hartmann

I think it was on Monday. It's an excellent point, probably the most salient in this case. Their self-righteousness has blinded them to the consequences of winning. He said he can't wait to start suing heads of corporations if SCOTUS decides in favor of HL

[Roland99]

56. Imagine every corporate CEO, CFO, CIO, VP, etc. being *personally* liable for corporate products?

Imagine the CEO of GM being *personally* liable for deaths from problems from cars that were not recalled.

Imagine Duke Energy officers being *personally* liable for costs of cleaning up the coal ash spill (and any physical maladies arising from that).


Imagine....

[blkmusclmachine]

4. Here is SCOTUSblog:

http://www.scotusblog.com/2014/03/birth-control-business-and-religious-beliefs-in-plain-english/#more-206874

[Enthusiast]

8. And those conservative justices call themselves "strict constructionists".

[Fortinbras Armstrong]

12. Actually, I can prove that Scalia is not a "strict constructionist"

I direct you to the case of Gonzales v. Raich, 545 U.S. 1 (2005). Angel Raich was growing marijuana for her own medicinal use, which was legal under California law. The Supreme Court, in a 6-3 decision, held this to be illegal under Federal law. A concurring opinion was written by Scalia, who based the decision ultimately under the Interstate Commerce clause of the Constitution and the Necessary and Proper Clause, saying

Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As US v. Lopez, 514 U.S. 549 (1995) itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so “could ... undercut” its regulation of interstate commerce. ... This is not a power that threatens to obliterate the line between “what is truly national and what is truly local.

Interestingly enough, Justice O'Connor based her dissent on exactly the same case Scalia based his concurrance, Lopez. She said that Lopez placed limits on Federal use of the Interstate Commerce clause and Raich's use of marijuana came under those limits.

Clarence Thomas, of all people, said that the majority was wrong, saying that Raich grew and used

marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything--and the Federal government is no longer one of limited and enumerated powers. ... By holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution's limits on federal power.

Thomas wrote: "The Necessary and Proper Clause is not a warrant to Congress to enact any law that bears some conceivable connection to the exercise of an enumerated power". He went on to say "Congress presented no evidence in support of its conclusions, which are not so much findings of fact as assertions of power," and concluded: "Congress cannot define the scope of its own power merely by declaring the necessity of its enactments".

The gist of Thomas' dissent comes straight out of original intent:

Respondent's local cultivation and consumption of marijuana is not "Commerce ... among the several States". Certainly no evidence from the founding suggests that "commerce" included the mere possession of a good or some personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.

I believe that here, Thomas is quite right, and Scalia only really supports "original intent" when he agrees with it.

[Enthusiast]

17. Thank you, Fortinbras Armstrong. Scalia is a picker and chooser,

not a strict constructionist, as he would have us believe.

Imagine Thomas coming up with that. Amazing.

[passiveporcupine]

7. Corporations are people my friend

That means they can be religious too!

[Enthusiast]

9. This is a can of worms. Predatory worms.

Like the ones in the movie Tremors.

[Maraya1969]

10. YES!

[JDPriestly]

11. K&R. Same for some of the Koch's enterprises.

[Fortinbras Armstrong]

13. My real problem with the Hobby Lobby case

Is that the Greens are saying that not only do they want to live by what they see as their Christian values, they insist that their employees do so as well.

[markpkessinger]

16. i agree, but I think the conservative response to your point would be . . .

. . . that the owners' views should take precedence because they are the owners, and that employees are "free" to work elsewhere.

[Fortinbras Armstrong]

19. My eldest son works for a Muslim

Would said conservative say that my son should subject himself to Sharia Law because of his boss?

I once had a boss who was an Orthodox Jew. Should I have kept kashrut when I had lunch?

[oldhippie]

25. Employees are not slaves .....

They don't have to do ANYTHING their employer requires. They have the ability to just leave, and the employer cannot stop them. So, no, neither you nor your son had to do those things.

[Whiskeytide]

29. But that begs the question...

... which should be phrased "does an employee have to abide by a business owner's beliefs in order to keep his or her job"?

I agree that no one is shackled to a job. But fundamentally the question is how much control should an employer have over an employee's personal life simply by virtue of being the employer?

If I think cats are terrible animals, can I require my employees to get rid of their cats? What if I think TV is destroying the fabric of society? Can I tell employees they cannot watch TV? These are silly examples, but they make the point.

The HL case is draped in a religious cloak because the lawyers feel that gives it some faux constitutional standing, and because the Greens wear their religion on their sleeves and sought out some attention for it. But the real issue is simple control, imo.

[oldhippie]

34. One way to look at that question, ....

... is that most of us here on DU make a big point of the principle that relations between consenting adults should not be penalized or regulated by the State (except, obviously, for cases of personal or public safety.) We don't want the State regulating or restricting relations between consenting adults unless they would lead to injury or death.

Is not the employee/employer relationship an agreement between consenting adults? If the requirements and expectations of that relationship are made known upon the start of the relationship, isn't that an act between consenting adults? Unless and until employees are forced into employment by the employer I would have to say yes.

If the employer stipulates certain behavior that is not illegal under current law, and the employee agrees to that behavior as a condition of employment, do we want the State interfering with that agreement between consenting adults? ( And yes, I know what our real answer is.)

If the employer changes the requirements or expectations after the initial agreement, then that is another issue, but again, neither party is forced to continue the relationship between the consenting adults. Slavery has been abolished in the US.

Now, many will raise the argument that one HAS to have a job to live, and jobs are hard to find, and so work really is slavery, and thus the State MUST regulate THIS relationship between consenting adults. I reject that argument, so don't bother to bring it up.

Just my $0.02. Being an atheist, I hope Hobby Lobby loses for other reasons.

[gollygee]

39. That's a libertarian argument that is in complete opposition to any thought

of the rights of workers.

[Ikonoklast]

44. Not the first such position taken by that poster.

[Ilsa]

31. I think it was Helen Gurley Brown that said the same

thing about women suffering sexual harassment at work: they should just go find another job. Sure, let the boss just keep ruining lives.

I am hoping that the court realizes that quitting to find an employer that isn't a civil rights violator isn't really an option in our economy.

[Fred Sanders]

14. I have been wondering why Fox has been eerily downplaying the hearing, this

seems to be the reason. Winning would open up the entire corporate structure to lawsuits based on discrimination by the individual directors and the shareholders who hold weirdo religious beliefs they want to impose on employees, not even weirdo that much, beliefs that would clash with legislated laws like minimum wage, blood transfusions, no pork sandwiches at work, etc. etc., destroying the very purpose of incorporation.
Be careful what you wish for comes to mind.

[Ilsa]

32. bone marrow grafting for cancer treatment, also. nt

[Ikonoklast]

45. Ruling in favor of HL would definitely pierce the corporate veil.

Shareholders could now be held personally liable for actions taken by the corporation.

[DallasNE]

15. This Supreme Court Is Irrational

This decision simply expands the Citizens United decision. Justice Kennedy is attempting to say this is an abortion case but abortion is not involved so Kennedy is just attempting to mask this as an expansion of corporations are people, or more specifically, money is people. Citizens United said money is speech so in their irrational "best" why would money also not be people. That is just following the geometry theorem that states "things that are equal to the same thing are equal to each other" so money is people.

[Nuclear Unicorn]

18. DU is an LLC. Let's pass a law that says, in spite of Skinner's personal beliefs

all corporations must post signage supporting whatever war the US is currently engaged in as a contingency to continue its recognition by the US. After all DU is just a corporate entity -- dependent upon the legal protections of the US no less -- and Skinner is still personally allowed to disagree.

All hail the state!

[oldhippie]

26. Slightly wrong.

An LLC is a Limited Liability Company, not officially a corporation. Though an LLC can have many of the attributes of a corporation, it is not officially a corporate entity. And they are not "recognized" by the US. They are created by the States, not the feds. The feds tax the members of the LLC as individuals, not corporations.

While your legal definitions are flawed, I think your point remains valid.

[Nuclear Unicorn]

33. Noted and appreciated.

[The Magistrate]

20. That Is Indeed, Sir, A Camel's Nose In The Tent That is Widely Over-Looked

Or more precisely, a camel's nose under the veil.

Any decision that the owners and the corporation are indistinguishable in regards to expressed beliefs would certainly undermine the idea that they are distinguishable in regards to liabilities.

[randr]

21. Another unnoticed elephant in the room

is the fact that the owners of Hobby Lobby are not actually giving necessary health care to their employees.
The employees worked for it, earned it, and should have every right in the world to do with it as they chose.
I am sick and tired of hearing that employers "give" health care to their workers.
Health care is a part of an employees compensation package. It is owed to them for work performed.

[theHandpuppet]

28. Excellent point!

Thanks!

[oldhippie]

35. I'm not sure I want any employer giving me healthcare, whether earned or not ...

I don't want my employer, being Hobby Lobby or anyone else, (with the exception of maybe if a hospital is my employer) giving me healthcare, even if it is an earned benefit.

I don't think the vast majority of employers are qualified to provide healthcare, beyond the occasional Band-Aid for a paper cut.

I think the provision of healthcare insurance is a much better approach. Whether or not that benefit is an earned benefit or not is subject to the agreement between the employer and the employee.

[The Magistrate]

42. To Flesh That Out A Bit, Sir

This is roughly analogous to employer claiming an employee's spending some of their pay on alcohol, or on condoms, violates the employer's religious rights, since such spending puts the employer in the position of subsidizing behavior violating his or her religious beliefs.

[randr]

47. My point exactly

What I earn for my work belongs to me, no one has the right to tell me how to use my rewards

[RKP5637]

52. Thank you, exactly! n/t

[Roland99]

62. Is HL actually paying any part of the premiums for the health insurance?

If they aren't, then where is the injury to their alleged religious beliefs???

[markpkessinger]

22. Turns out there was an amicus brief filed in this case that fleshes out my point above . . .

I posted a version of my post above as a comment to an article on MotherJones.com, and another reader was kind enough to point me to an amicus brief filed with the court in this case, signed by 44 law professors, that essentially makes the argument I make above, only in much fuller detail. (I'm not a lawyer, but it's nice to know my legal instincts weren't too far afield!) Here is a link to the amicus brief:

http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs-v3/13-354-13-356_amcu_cclp.authcheckdam.pdf

[Roland99]

50. nice

[joeglow3]

23. Limited Liability Companies are check the box and offer limited liability

[spanone]

24. the 'supreme' court should have never allowed this case on their docket.

[PoliticAverse]

27. The Supreme Court needed to consider the case because different Circuit Courts have come to opposite

decisions on the matter.

From: http://www.msnbc.com/msnbc/does-corporation-have-religious-liberty

The Tenth Circuit Court of Appeals declared of Hobby Lobby that “such corporations can be ‘persons’ exercising religion.” In ruling on Conestoga’s bid for exemption from the requirement, the Third Circuit disagreed: “For-profit secular corporations cannot exercise in religious exercise.”

[lumpy]

37. You are right, although certain justices would disagree with you an me.

[COLGATE4]

30. I agree. By their actions they are seeking to

pierce the corporate veil and, accordingly should no longer have the legal protections afforded a corporation. The fiction of closely held corporations being fundamentally different from publicly traded corporations in this respect is a sham argument, designed by the fundies on the USSCt to make a distinction without a difference and rule in HL's favor.

[markpkessinger]

38. That was my impression as well . . .

, , , Whether or not a corporation is privately held or publicly traded strikes me as being utterly beside the point.

[COLGATE4]

40. It's a solution in search of a problem nt

[Kablooie]

36. Special cases are allowed as long as they damage Obamacare.

The law is flexible when it comes to hurting accomplishments of a black president.

[Rider3]

41. Good point

I'd like the Supreme Court to address that fact.

[TBF]

43. Very good - you are smarter

than several supreme court justices. And I think we all know which ones ...

Hints ..

[markpkessinger]

46. Here is the "Summary of Argument" from the amicus brief . . .

. . . that I mentioned in #22 above, which lays out the legal argument for the point I made in my OP. From the amicus brief:

SUMMARY OF ARGUMENT

Hobby Lobby and Conestoga each asserts that the religious values of its present controlling shareholders should pass through to the corporation itself. This Court should reject any such "values pass-through" concept. To do otherwise would run contrary to established principles of corporate law.

1. The essence of a corporation is its "separateness" from its shareholders. It is a distinct legal entity, with its own rights and obligations, different from the rights and obligations of its shareholders. This Court has repeatedly recognized this separateness.
   
   
2. Shareholders rely on the corporation's separate existence to shield them from personal liability. When they voluntarily choose to incorporate a business, shareholders cannot then decide to ignore, either directly or indirectly, the distinct legal existence of the corporation when it serves their personal interests.
   
   
3. The separateness between shareholders and the corporation that they own (or, in this case, own and control) is essential to promote investment, innovation, job generation, and the orderly conduct of business. This Court should not adopt a standard that chips away at, creates idiosyncratic exceptions to, or calls into question this legal separateness.
   
   
4. On the facts of these cases, there is no basis in law or in fact to disregard the separateness between shareholders and the corporations they control. Hobby Lobby's and Conestoga's attempt to "reverse veil pierce"—that is, to imbue the corporation, either by shareholder fiat or a board resolution, with the religious identity of certain of its shareholders—should be rejected. The concept of "reverse veil piercing" is wholly inapplicable on these facts.
   
   
5. Adoption by this Court of a "values pass- through" theory here would be disruptive to business and generate costly litigation. It would encourage intrafamilial and intergenerational disputes. It would also encourage subterfuge by corporations seeking to obtain a competitive advantage.
   
   
6. Adoption by this Court of a "values pass- through" theory would also have potentially dramatic and unintended consequences with respect to laws other than PPACA, such as the Public Accommodations and Employment Discrimination provisions of the Civil Rights Act of 1964. Rather than open up such a Pandora's box, the Court should simply follow well-established principles of corporate law and hold that a corporation cannot, through the expedient of a shareholder vote or a board resolution, take on the religious identity of its shareholders.

[Roland99]

51. So..."insider reverse veil piercing" is without precedent?

Why do I fear that's about to change?

[DebJ]

61. Thank you for posting that! n/t

[BlueStreak]

48. In other words, how can a corporation be religious?

A corporation is a legal entity -- a contract -- a piece of paper. it cannot hae any beliefs of any sort, and certainly can't worship a god.

The corollary to this argument is that if the SCOTUS upholds Hobby Lobby, then the new doctrine will be that corporations are not just people in the sense of free speech and ability to manipulate elections. Corporations are people in the fullest sense of the word, having feelings, emotions, and worshiping gods. This is really sick. And frankly that may be why Kennedy swings this for the Scalia Five.

[Swede Atlanta]

49. Completely accurate......

but we have a corporatist court who has said the corporations are people, they have 1st Amendment rights and can spend unlimited amounts of money on campaigns (read - into our pockets thank you).

[The Wizard]

53. My religious convictions

ban me from paying for immoral wars. Therefore, I will legally withhold a commensurate portion of my taxes that will be used to pay for said war.

[elleng]

54. YES!

[DrewFlorida]

58. Good point, I also have a point which I have not seen mentioned.

If the basis for Hobby Lobby's complaint is, their religious beliefs are at odds with the law, and their religious beliefs are based on the Bible, then they should be required to prove that abortion is at odds with the Bible. Yet the Bible specifically sets the moment of life begins at the moment that god breathes life into the newborn, or, in effect, when the baby takes his/her first breath.

In fact the Bible is at odds with the notion of life starting at conception, therefore, Hobby Lobby's claim that abortion and by extension birth-control is against their religion is a false claim.

In fact birth-control is not against the Christian religion, because the Bible does not recognize a fetus as a living being, that is something Christians have manufactured, not an actual part of their written religious basis.

[markpkessinger]

67. That is actually somewhat problematic . . .

. . . Different Christian sects invest varying degrees of authority in the Bible, and not all Christian sects invest the kind of legalism into the text your approach suggests. In addition, if you start down that path, you then have secular courts having to rule on what is authentically part of a religious faith and what is not. That opens up an enormous can of worms, and certainly would run afoul of the 1st Amendment.

[The Velveteen Ocelot]

59. This issue has been bothering me, too. I wonder if the attorneys briefed it?

Your analysis is spot on. Corporations exist as entities separate from their owners to ensure that the personal assets of the owners are not at risk in the event of claims against the corporation (and vice-versa). This protection is lost, however, if the owners of the corporation do not scrupulously preserve the separate existence of the corporation by maintaining proper books and records, not commingling corporate and personal funds, etc. The whole concept of "corporate personhood" arose in the 19th century from the realization that a corporation, as this separate entity, should be able to sue and be sued as if it was a natural person. I very much doubt that the courts at that time ever anticipated or intended that corporations should be given all the rights and attributes of their human owners, because then the separate existence created to protect the assets of the owners becomes a fiction.

Let's say you and your family are the sole shareholders of a corporation that makes doohickeys. You employ 100 people; your business is successful and you are maintaining all the necessary books, records and indicia of corporate separateness. But you and your family belong to a religious sect that believes any kind of surgery is sinful; your god prohibits any kind of invasive medical procedures because these procedures allow evil spirits to invade the body. So, while you are willing to offer health insurance to your employees, you do not want that insurance to cover surgery. That is, the religious beliefs of the owners of the corporation, which is otherwise maintained as a completely separate entity, are somehow being transferred to the corporation. How can a corporation, which is really just an abstraction, have religious beliefs at all without essentially merging the attributes of the human owners into the corporation, thereby in a sense piercing the corporate veil and ignoring the corporation's separate existence?

This has been bugging me and I hope the government's attorneys at least briefed it.

(Added): I just saw that this issue was raised in an amicus brief. Excellent.

[Auntie Bush]

60. Good point framed very well.

too bad that wasn't questioned during the hearing.

[Lefty Thinker]

63. It should depend on the unemployment rate

The relationship between an employer and employee is effectively involuntary (on the part of the employee) if the unemployment rate is too high. If I am unlikely to find another job, should I leave the one I have, I am involuntarily yoked to my employer.

This would also give the "owner" class a good reason to keep unemployment low: when it rises too high they would lose control over aspects of their employees' compensation packages since they are not, in the aggregate, serving the good of the country.

[MH1]

64. That's a good point

I wish we had some sort of moral imperative in this country for full employment ... such that the government would create jobs if the private sector weren't doing it ... CCC kind of thing, or funding more infrastructure repairs, hiring more people to keep public spaces cleaned up ... but NOooooo .... that's not the American Way.

If we followed a moral imperative towards full employment including the ability for people to move between jobs to find situations that suited them, than sure, a little more leeway might be given to a public company to run the business exactly how they wanted to ... because employees could easily go work somewhere else.

Since we don't have that in this country and probably never will, I think it's no more than an academic question whether we would want to allow that leeway.

[mountain grammy]

66. Exactly! The corporate SCOTUS know this all too well.

the whole case stinks.

[applegrove]

68. Exactly.

[YOHABLO]

69. Fundamentalist Religion will be the demise of this country .. Christian Fascism

Onward Christian soldiers, marching as to war
With the cross of Jesus going on before
Onward then, ye people, join our happy throng
Blend with ours your voices in a triumph song

Christ, the Royal Master, leads against the foe
Forward into battle, see His banners go, oh

Onward Christian soldiers, marching as to war
With the cross of Jesus going on before
Crowns and thrones may perish, kingdoms rise and wane
But the cross of Jesus constant will remain

Marching as to war
(Marching as to war)
Oh, we're marching as to war
(Marching as to war)

Oh, we're marching as to war
Onward then, ye people, join our happy throng
Blend with ours your voices in a triumph song
Onward Christian soldiers, marching as to war
With the cross of Jesus going on before

Marching as to war
(Marching as to war)
Oh, we're marching as to war
(Marching as to war)

[gtar100]

70. Typical of the greed in capitalism... they want their cake and to eat it too.

I think you raise a really good point. That veil seems very one-sided. Even without it, it does still remain that businesses are operating in the public sphere and because business owners feel this need to have control over our health care, the ACA rules rightly say that it should meet a minimal standard that is acceptable to a large, diverse population. They are not islands unto themselves.

In reality this case really makes employer-based health care look utterly ridiculous. It's a foolish, foolish system.