There have been some excellent editorial opinions on the Hobby Lobby case argued in the U.S. Supreme Court today.

The New York Times: Crying Wolf on Religious Liberty – The Supreme Court should reject the claim of religious infringement in the health care law’s contraception mandate.


The Washington Post: A ‘compelling’ interest – The government has reason to protect contraceptive coverage.

The Los Angeles Times: Hobby Lobby case: Defenders of religious freedom should be careful what they pray for – The Supreme Court should reject the argument of some for-profit firms that they be allowed to opt out of Obamacare’s mandate on contraception coverage.

corplogoflag-copyBut the five conservative activist Justices of the U.S. Supreme Court, who live in the epistemic closure of the conservative media entertainment complex feedback loop, appear to be unmoved.

We are on the verge of a conservative activist court introducing a radical revolutionary change in American law: that fictional legal entities such as corporations, partnerships and associations enjoy superior “religious liberty” rights in the commercial sphere, and can impose the fictional entity’s religious beliefs  on its employees of other religious faiths, or no religious belief. The logical extension of this radical doctrine is that fictional legal entities may also discriminate against members of  the public in the commercial sphere based upon the entity’s religious beliefs.

Religious liberty has always been understood as an individual liberty right. It is a shield against government encroachment, not a sword by which an individual can impose his or her religious beliefs on others through the force of government law. That would undermine the very purpose of First Amendment religious liberty rights.

The legal fiction of “corporate personhood” has now reached its most extreme and absurd conclusion. This court-created concept must be brought to an end.


The New York Times reports, Justices Seem Divided on Contraceptive Rule:

In an argument that touched on medical science and moral philosophy, the Supreme Court on Tuesday wrestled with whether corporations may refuse to provide insurance coverage for contraception to their workers based on the religious beliefs of the corporations’ owners.

The court seemed ready to accept that at least some for-profit corporations may advance claims based on religious freedom. But the justices appeared divided along ideological lines over whether the objections before it, based on a requirement in President Obama’s health care law, should succeed.

Justice Anthony M. Kennedy, who probably holds the decisive vote, asked questions helpful to both sides. He appeared skeptical that the two family-controlled companies that objected to the contraception coverage requirement were burdened by the law, as they could cease providing health insurance at all. He also expressed solicitude for “the rights of the employees.”

But Justice Kennedy also had reservations about whether the government could require the companies in the case to provide coverage in light of the many exemptions and accommodations it has offered to other groups.

The lower courts are divided over whether corporations may object to generally applicable laws on religious liberty grounds.

In June, the United States Court of Appeals for the 10th Circuit, in Denver, ruled for Hobby Lobby, a corporation owned by a family whose members have said they try to run the business on Christian principles. A five-judge majority of an eight-judge panel of the Tenth Circuit, in the Hobby Lobby case, said that “the First Amendment logic of Citizens United” extended to religious freedom. A dissenting member of the court, Chief Judge Mary Beck Briscoe, wrote that the majority’s approach was “nothing short of a radical revision of First Amendment law.”

In July, the United States Court of Appeals for the Third Circuit, in Philadelphia, ruled against the Conestoga Wood Specialties Corporation, which makes wood cabinets and is owned by a Mennonite family that had similar objections to the law. The Third Circuit concluded that “for-profit, secular corporations cannot engage in religious exercise.” The Third Circuit rejected an analogy to the Supreme Court’s 2010 decision in Citizens United, which said corporations have a First Amendment right to free speech.

The Washington Post reports, Justices seem to be siding with firms on birth control:

A divided Supreme Court seemed inclined to agree Tuesday that the religious beliefs of business owners may trump a requirement in President Obama’s Affordable Care Act that they provide their employees with insurance coverage for all types of contraceptives.

But a majority of the justices seemed to agree that the family-owned businesses that objected to the requirement were covered by a federal statute that gives great protection to the exercise of religion. That would mean the government must show the requirement is not a substantial burden on their religious expression, and that there was no less intrusive way to provide contraceptive coverage to female workers.

As is often the case, Justice Anthony M. Kennedy — who voted two years ago to find Obamacare unconstitutional — seemed to hold the balance. Some of his remarks and questions favored the government-. He was concerned about workers being denied coverage to which they were entitled by law because of their employers’ objections.

But Kennedy also worried that the government’s reasoning would mean there was little employers could object to funding.

* * *

The three liberal and female justices were the most vocal in questioning Paul D. Clement, the Washington lawyer representing two companies who object to providing coverage for emergency contraception and IUDs.

Justices Sonia Sotomayor and Elena Kagan continually pressed Clement on whether his argument could be extended to employers refusing to pay for blood transfusions or vaccines because of religious objections.

“The entire U.S. code” as it applies to corporations would have to be held to the highest constitutional scrutiny, Kagan said.

“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,” Kagan said.

Clement said courts could decide whether such claims had merit. [Here’s my card. I got rich litigating these cases.]

* * *

It could have long-term implications for what other legal requirements companies could decline because of religious convictions. And it asks a question the court has never confronted: whether the Constitution or the Religious Freedom Restoration Act (RFRA), which protects an individual’s exercise of religion, extends to secular, for-profit corporations and their owners.

The 1993 religious-freedom law prohibits the federal government from imposing a “substantial burden” on a person’s exercise of religion unless there is a “compelling governmental interest” and the measure is the least-restrictive means of achieving the interest.

* * *

The Obama administration responded in its briefs that the challengers could not point to “a single case in this nation’s history” that exempted a corporation from a neutral law that regulated commercial activities.

It contends that the RFRA was intended to protect individuals, not corporations, but that even if corporations are covered, there is no substantial burden on the company’s owners. It is the companies, not the owners, who provide the insurance, the government contends, and it is the employees, not the owners, who decide what services they will use.

The Court has never recognized the right sought by the corporations in these cases. It would be a radical revolutionary departure from almost 225 years of settled constitutional law and Supreme Court precedents. This unelected Court would be engaging in revisionist history and writing law to suit its own conservative view of the world, which for the Roberts Court has always been in service to the corporations.

UPDATE: Jeffrey Rosen at The New Republic also makes my point about the logical extension of this radical doctrine is that fictional legal entities may also discriminate against members of  the public in the commercial sphere based upon the entity’s religious beliefs. The End of Anti-Discrimination The stakes in Tuesday’s Hobby Lobby arguments couldn’t be higher:

Although there are technical differences between the two cases, both will force the justices to confront the future balance between the First Amendment on one hand and anti-discrimination laws on the other. In particular, the justices will have to decide whether the logic of Citizens United—that individuals who organize themselves as for-profit corporations have the same First Amendment rights as natural persons—includes rights of religious freedom as well as free speech. The justices may find narrower grounds to decide all three cases, but taken to their logical conclusion, the claims of the religious business owners in all of them would mean the end of anti-discrimination laws as we know them.