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Green Crayons posted:Professor Volokh is using this week to write about the various legal issues implicated in the upcoming Hobby Lobby cases. Apart from knowing a whole bunch about the applicable area of law (First Amendment and the Religious Freedom Restoration Act statute), I find his writing to be clear, easy to read, and enlightening on a rather dense subject area. Thanks for the links. Reading through these I'm wondering what abstract, out of left-field basis is going to be used for a ruling in the Hobby Lobby case in an attempt to minimize the aftershocks. edit: it seems there is going to be a lot of wiggle room for ruling in regards to the Burden in the RFRA, and i'm interested in seeing his discussion on the effect of the establishment clause w/r/t the Burden And The Warszawa, I could read the first post of this thread a thousand times and still enjoy every minute of it. esto es malo fucked around with this message at 23:35 on Dec 2, 2013 |
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Dec 2, 2013 23:22
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The Warszawa posted:I can't see any of the NFIB Four voting to uphold this mandate and I feel like Roberts is going to swing with them this time, that infinite fucker - I don't see him siding against the nebulous soundbyte of "religious freedom." Then again, my analysis may be clouded by my complete and utter hatred of him. I wonder if Mormons will be able to fire racial minorities since our inferiority is part of their sincerely held religious belief, and us gays are super hosed even in the few states that have passed anti-discrimination laws.
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Dec 3, 2013 00:31
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evilweasel posted:The issue is that this isn't actually a constitutional case. The Supreme Court has already held that the 1st Amendment gives you very few rights to challenge a generally applicable law on the basis that as applied to you it violates your 1st Amendment rights. The test case was a peyote ban: the drug wasn't banned to interfere in Native American religious ceremonies and was just a general drug ban, they argued that it violated their religious freedom to ban a drug they needed for their religion, and lost. The issue I have with the Circuit Court's reasoning is, of course, that even assuming that a closely-held company blah blah blah owners' rights under RFRA, I don't think they met the substantial burden required. Like, yeah, sure, it's burdensome, but it's surely not substantial due to the numerous ways the owners can still express their religious disapproval of whatever.
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Dec 3, 2013 00:32
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Hasters posted:I wonder if Mormons will be able to fire racial minorities since our inferiority is part of their sincerely held religious belief, and us gays are super hosed even in the few states that have passed anti-discrimination laws. IIRC the Mormons erased the codified racism back in the 70's. Gays are still hosed though.
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Dec 3, 2013 00:40
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WhiskeyJuvenile posted:Like, yeah, sure, it's burdensome, but it's surely not substantial due to the numerous ways the owners can still express their religious disapproval of whatever. I'm fine with allowing them to express their disapproval of their employees' life choices in exchange for enforcing the mandate. I can see it now...  "Good morning, Eileen. How's that abortion? I'm going to need you to fill out this sinner's abortion leave request if you want time off to get your sinful abortion" "It's not an abortion. It's a birth control pill and I don't need leave to--" "You know I'm paying for all your sex-having and abortions, so if MY MONEY is going to your lady parts then I get to take them for a spin, get in on all your sex-having." "I have ovarian cysts, it's not even--" "Oh hey Ted, how's your new sportscar you bought with MY MONEY. I'm gonna go take it out for a spin after lunch." "What? No, you can't drive my--" "MY MONEY!!!!  We may sacrifice some professionalism in the workplace, but I think we can all agree it'd be worth it. VitalSigns fucked around with this message at 01:20 on Dec 3, 2013 |
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Dec 3, 2013 01:13
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Zeroisanumber posted:We're going to be cleaning up after this court for a very long time. Maybe all five of the conservatives will split an order of salmon mousse and give us a chance to create something decent. I'm alright with Clarence Thomas writing his parallel-universe dissents against an eight-justice communist majority, personally.
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Dec 3, 2013 01:19
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Has SCOTUS already addressed concerns in previous cases about the federal government wielding "compelling interest" for the RFRA in a blunt fashion analogous to the Commerce Clause? That was a big deal during the individual mandate case, and I don't know enough case history to know if compelling government interest has been marked with the slippery slope broccoli stamp before or if I should look forward to Scalia's arguments.
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Dec 3, 2013 01:24
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Zeroisanumber posted:IIRC the Mormons erased the codified racism back in the 70's. Gays are still hosed though. Basically this. And even the LDS Church is saying "okay, non-discrimination policies are fine" in a collection of cities in the most populous county in Utah. They've even gotten close to supporting a statewide nondiscrimination law in Utah, but they didn't feel like it exempted them enough. Utahns support non-discrimination policies by something like 70% (which obviously includes a bunch of Mormons), and a Republican from St. George, Utah's version of Florida (in that it has a lot of old white people) is going to introduce the non-discrimination legislation for the second time. It's not like the LDS Church likes LGBT people, and they won't be touting civil unions or marriage equality any time soon, but even they are all "maybe we shouldn't be so 1950s on this".
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Dec 3, 2013 01:50
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VitalSigns posted:I'm fine with allowing them to express their disapproval of their employees' life choices in exchange for enforcing the mandate. I can see it now... "Hey, VitalSigns, did you write this? It's very good. I showed it to the principal and he really enjoyed it."
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Dec 3, 2013 02:09
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Just wanted to say about the birth control thing, it's obvious the people against the birth control don't actually care if forms of contraception prevent implantation or not, but IUDs, hormonal pills, hormonal shots, all have the possibility to prevent implantation. The exact mechanisms of action for each one is complex and for them the substantial form of action is the prevention of ovulation or fertilization. And by substantial form, this is in the 99% range of how it works. No matter how you slice it, birth control prevents more abortions than you could possibly say it causes via the 'it prevents implantation!' argument and clearly the objection to it is about not wanting people to have sex. As it relates to what the SCOTUS will rule, I really hope it upholds the mandate, if for no other reason than medical privacy. Really this just speaks to the United States needing UHC, though to be honest, the idea of Republicans controlling my health care even more directly than they do is terrifying.
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Dec 3, 2013 11:27
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I'm trying to find the phrase that I think Scalia used, saying that the strength of one's convictions can be determined by their actions. What he seems to have gotten across was that Obama should have acted as though something was unconsitutional and ignored it, rather than followed the letter of the law and waiting for a SCOTUS ruling.
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Dec 3, 2013 16:37
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If SCOTUS rules in favor of Hobby Lobby in the Hobby Lobby case, wouldn't that open up all kinds of problems with employers dictating what their employees can and cannot use their compensation for? I'd expect a very narrow ruling from them or telling Hobby Lobby to get hosed but this court has, with the exception of the ACA ruling, proved to not give a drat what the consequences of their major rulings are.
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Dec 3, 2013 17:10
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axeil posted:If SCOTUS rules in favor of Hobby Lobby in the Hobby Lobby case, wouldn't that open up all kinds of problems with employers dictating what their employees can and cannot use their compensation for? I'd expect a very narrow ruling from them or telling Hobby Lobby to get hosed but this court has, with the exception of the ACA ruling, proved to not give a drat what the consequences of their major rulings are. Not if they tell everyone it doesn't set a precedent a la Bush v Gore. E: because seriously the precedent that would have been set by Bush, if I recall was that recounts violate equal protection or some poo poo, which is some major black is white scalia is reasonable cats and dogs living together horseshit when you consider the purpose of a recount is to precisely tally the vote and ensure all eligible ballots are counted. FAUXTON fucked around with this message at 17:29 on Dec 3, 2013 |
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Dec 3, 2013 17:24
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The Entire Universe posted:Not if they tell everyone it doesn't set a precedent a la Bush v Gore. Oh god I forgot about Bush v. Gore. What was the actual rationale they gave for that one beyond "the recount needs to stop because this is silly." Or if you're more cynical "the recount needs to stop because we have 5 Republican-appointed justices and stopping it allows a Republican to win the White House."
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Dec 3, 2013 17:41
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axeil posted:If SCOTUS rules in favor of Hobby Lobby in the Hobby Lobby case, wouldn't that open up all kinds of problems with employers dictating what their employees can and cannot use their compensation for? I'd expect a very narrow ruling from them or telling Hobby Lobby to get hosed but this court has, with the exception of the ACA ruling, proved to not give a drat what the consequences of their major rulings are. No, because "you can't use your compensation for this" is not an accurate description of Hobby Lobby's actions. Employees are still allowed to buy birth control, and if they have a health savings account they are still allowed to spend that money on birth control. What would happen in that a small number of "non-religious" employers would choose to not cover birth control on their company plans.
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Dec 3, 2013 17:43
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axeil posted:Oh god I forgot about Bush v. Gore. What was the actual rationale they gave for that one beyond "the recount needs to stop because this is silly." Or if you're more cynical "the recount needs to stop because we have 5 Republican-appointed justices and stopping it allows a Republican to win the White House." e: oh god I didn't mean to hit post Amarkov fucked around with this message at 17:55 on Dec 3, 2013 |
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Dec 3, 2013 17:51
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Cheekio posted:I'm trying to find the phrase that I think Scalia used, saying that the strength of one's convictions can be determined by their actions. So since Hobby Lobby didn't drop contraceptive coverage from their plans until after the ACA mandate, can we discount their actions as indicating partisan spite against the law rather than a sincerely held belief?
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Dec 3, 2013 17:52
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VitalSigns posted:So since Hobby Lobby didn't drop contraceptive coverage from their plans until after the ACA mandate, can we discount their actions as indicating partisan spite against the law rather than a sincerely held belief? I've never heard this. Do you have a source that supports your claim that they offered contraceptive coverage before the ACA mandate?
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Dec 3, 2013 17:55
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esquilax posted:I've never heard this. Do you have a source that supports your claim that they offered contraceptive coverage before the ACA mandate? http://www.theguardian.com/commentisfree/2013/nov/27/obamacare-contraception-supreme-court-religious-freedom The Guardian posted:
edit: The source is a column so, ya know, might be total bullshit axeil fucked around with this message at 18:14 on Dec 3, 2013 |
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Dec 3, 2013 18:09
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axeil posted:http://www.theguardian.com/commentisfree/2013/nov/27/obamacare-contraception-supreme-court-religious-freedom A source that isn't an op-ed, which often get facts wrong. This is an extremely relevant fact and I would expect it to be mentioned in the court opinions. My understanding is that they added it to the plan to comply with the mandate and sued to get it removed.
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Dec 3, 2013 18:11
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esquilax posted:A source that isn't an op-ed, which often get facts wrong. This is an extremely relevant fact and I would expect it to be mentioned in the court opinions. My understanding is that they added it to the plan to comply with the mandate and sued to get it removed. Yeah I just noticed that was an op-ed. My bad. This is why I shouldn't just see links in the GOP thread and assume they say what they're reported to say.
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Dec 3, 2013 18:12
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esquilax posted:A source that isn't an op-ed, which often get facts wrong. This is an extremely relevant fact and I would expect it to be mentioned in the court opinions. My understanding is that they added it to the plan to comply with the mandate and sued to get it removed. It was some stupid phrase like "Courage of Conviction", and it was a backhanded slap at the POTUS when they awarded him the ruling anyway, if I remember correctly. Yeap: http://www.nytimes.com/2013/03/28/us/supreme-court-defense-of-marriage-act.html?pagewanted=all Page searching for 'courage' will get you to the line. Apparently when it comes to disagreeing branches of state, you're supposed to shoot first and just cross your fingers the eventual ruling doesn't get you impeached later. Edit: Fixed a link. The more I think about it the more insane this court seems. I hate to muck up old derails but is their refusal to give advisory opinions a constitutional thing or is it a precedent thing? Pythagoras a trois fucked around with this message at 18:35 on Dec 3, 2013 |
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Dec 3, 2013 18:26
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http://www.prnewswire.com/news-releases/us-supreme-court-to-hear-landmark-hobby-lobby-case-233481131.htmlquote:The Greens and their family businesses – who have no moral objection to providing 16 of the 20 FDA-approved contraceptives required under the HHS mandate and do so at no additional cost to employees under their self-insured health plan – then took the unusual step in October of joining the government in asking the U.S. Supreme Court to review the case, despite the family's victory in the U.S. Tenth Circuit Court of Appeals. So, apparently it is 4 specific drugs or devices they are citing moral objections to providing, but still providing 16 others. Which would presume their objections are based on the merit of the claims that the drugs or devices terminate a pregnancy, rather than prevent it. Would evidence supporting that no such termination occurs in a common patient render their argument null, or is the science and facts irrelevant as long as their belief is such, as people have postulated in this and other threads?
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Dec 3, 2013 18:27
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joeburz posted:http://www.prnewswire.com/news-releases/us-supreme-court-to-hear-landmark-hobby-lobby-case-233481131.html I don't think the science is really against them. IUDs and emergency contraception pills can prevent implantation of a fertilized egg. If they believe that human life starts precisely at conception then they are being consistent in their beliefs. Not that I think they're right, but I don't see how you could use science to get around what is essentially a religious argument.
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Dec 3, 2013 18:50
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axeil posted:Oh god I forgot about Bush v. Gore. What was the actual rationale they gave for that one beyond "the recount needs to stop because this is silly." Or if you're more cynical "the recount needs to stop because we have 5 Republican-appointed justices and stopping it allows a Republican to win the White House." Cheekio posted:Page searching for 'courage' will get you to the line. Apparently when it comes to disagreeing branches of state, you're supposed to shoot first and just cross your fingers the eventual ruling doesn't get you impeached later. quote:The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
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Dec 3, 2013 19:00
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Florida Betty posted:I don't think the science is really against them. IUDs and emergency contraception pills can prevent implantation of a fertilized egg. If they believe that human life starts precisely at conception then they are being consistent in their beliefs. Not that I think they're right, but I don't see how you could use science to get around what is essentially a religious argument. A lot of things can prevent implantation of a fertilized egg. I think there's definitely a question of mechanism or intent at hand regarding the drugs/devices they are denying. Is it a microscopic chance kind of thing due to the mechanism of the drug/device? Or is it that the drug/device specifically was designed not to prevent conception but to prevent implantation? If the former I don't think they have much of a case, but the latter might float if they have the evidence to support it. It'd be a hard argument to say they can refuse coverage of drugs that (under exceedingly rare circumstances) allow fertilization but not implantation, but also allow coverage for procedures or drugs that have a similar (inadvertent and exceedingly rare but documented) effect. Might as well put a clause banning fertile women from driving while employed if that's the case, since you never know what an accident might do to a woman's uterus.
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Dec 3, 2013 19:10
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axeil posted:Oh god I forgot about Bush v. Gore. What was the actual rationale they gave for that one beyond "the recount needs to stop because this is silly." Or if you're more cynical "the recount needs to stop because we have 5 Republican-appointed justices and stopping it allows a Republican to win the White House." Seven of the justices in that case were Republican-appointed.
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Dec 3, 2013 19:15
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The Warszawa posted:Haha, I read some of this in the Stephanopoulos memoir, do you have any recommendations on the topic? Jeffrey Toobin's "The Nine" talks about it a little bit, but I'm not sure if any book goes in depth on it. The Entire Universe posted:A lot of things can prevent implantation of a fertilized egg. I think there's definitely a question of mechanism or intent at hand regarding the drugs/devices they are denying. Is it a microscopic chance kind of thing due to the mechanism of the drug/device? Or is it that the drug/device specifically was designed not to prevent conception but to prevent implantation? If the former I don't think they have much of a case, but the latter might float if they have the evidence to support it. It'd be a hard argument to say they can refuse coverage of drugs that (under exceedingly rare circumstances) allow fertilization but not implantation, but also allow coverage for procedures or drugs that have a similar (inadvertent and exceedingly rare but documented) effect. Might as well put a clause banning fertile women from driving while employed if that's the case, since you never know what an accident might do to a woman's uterus. Why should it matter if the plaintiffs can't prove the scientific accuracy of their religious objection? They wouldn't be able to prove God exists either, but that doesn't mean their religious objection isn't legitimate.
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Dec 3, 2013 19:17
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Emanuel Collective posted:Why should it matter if the plaintiffs can't prove the scientific accuracy of their religious objection? They wouldn't be able to prove God exists either, but that doesn't mean their religious objection isn't legitimate.
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Dec 3, 2013 19:25
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The Warszawa posted:Brown v. Plata, 131 S. Ct. 1910 (2011) (dissent). Dissenting from the judgment that the Eighth Amendment required that the courts intervene to mandate a population limit in California prisons (which were and are insanely overcrowded), Scalia wrote: I though you were joking, so I had to look it up and welp. There it is on page 63. http://www.supremecourt.gov/opinions/10pdf/09-1233.pdf
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Dec 3, 2013 19:32
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StarMagician posted:Seven of the justices in that case were Republican-appointed. And they were the 7 justices that ruled the same way on the 5-4 case, because oh my god that loving case. Broad overview (because I'm too lazy to effortpost right now): Every justice except Ginsburg and Stevens agreed that the Florida recounts were unconstitutional, because the lack of a clear statewide ballot standard violated the Equal Protection Clause. Breyer and Souter argued that, to remedy this, the case should be remanded to Florida with instructions to establish a uniform standard and apply it. But an old provision of federal law says that, if a state has made a "final determination" of its Electoral College representatives by six days before the meeting, those electors are locked in. The remaining five justices ruled that the Supreme Court of Florida had ruled that the Florida Legislature had intended pre-recount tallies in elections to be a "final determination". Since there was no time to complete a recount between the Supreme Court's decision on December 12 and the six day deadline on December 12, the original result had to be locked in as the final one.
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Dec 3, 2013 19:34
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esquilax posted:No, because "you can't use your compensation for this" is not an accurate description of Hobby Lobby's actions. Employees are still allowed to buy birth control, and if they have a health savings account they are still allowed to spend that money on birth control. Isn't the real potential impact of the case (besides for the obvious BC issue) going to be to what extent an incorporated business is actually separate from the people running it? I mean if at a certain point and under certain ownership arrangements a company is so fundamentally the same as its owners such that it takes on their religion, would the inverse not be true? You could end up with a really really nasty mess with regard to corporate veil piercing for criminal or civil liability. edit: I mean wouldn't it be the case that were a corporation found to be so closely linked to the person(s) owning it that many of the legal assumptions of it being a separate legal person become strained or broken? Shifty Pony fucked around with this message at 19:39 on Dec 3, 2013 |
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Dec 3, 2013 19:35
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Emanuel Collective posted:Jeffrey Toobin's "The Nine" talks about it a little bit, but I'm not sure if any book goes in depth on it. It should matter because proving the accuracy of one of those is feasible and has actually already happened. They just choose to consider the science to be inapplicable because it doesn't agree with their belief(assuming it isn't actually just malicious "ignorance" in order to push their inaccurate view).
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Dec 3, 2013 20:06
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Shifty Pony posted:Isn't the real potential impact of the case (besides for the obvious BC issue) going to be to what extent an incorporated business is actually separate from the people running it? I mean if at a certain point and under certain ownership arrangements a company is so fundamentally the same as its owners such that it takes on their religion, would the inverse not be true? You could end up with a really really nasty mess with regard to corporate veil piercing for criminal or civil liability. Well yes, it is an important case and it will have a big impact on that sort of thing, though I don't think it will completely undermine the concept of corporations as you are implying. What definitely won't happen is CEOs saying "well I'm an Amish convert now so we won't cover MRIs". It takes an autistic view of the law to think anything like that would occur. It's akin to saying "if they let indians smoke peyote then I'll just say my religion requires that I take heroin" and just as ridiculous. It would only really directly affect birth control because the other major procedures that companies would likely object to, like abortions or viagra, are not mandated.
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Dec 3, 2013 20:11
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esquilax posted:Well yes, it is an important case and it will have a big impact on that sort of thing, though I don't think it will completely undermine the concept of corporations as you are implying. I don't mean it would completely undermine it, just that we could look forward to years and years of lower courts trying to hash out where the line is and that means there could be some cases where the company exercising a religious BC objection could be the deciding factor in determining whether the company and the person are truly separate. It has the potential to really rattle corporate law in an unpredictable way and that's generally not something that the money likes.
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Dec 3, 2013 20:28
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joeburz posted:It should matter because proving the accuracy of one of those is feasible and has actually already happened. They just choose to consider the science to be inapplicable because it doesn't agree with their belief(assuming it isn't actually just malicious "ignorance" in order to push their inaccurate view). Their scientific argument is entirely based on FDA statements about birth control.
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Dec 3, 2013 20:42
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Emanuel Collective posted:Jeffrey Toobin's "The Nine" talks about it a little bit, but I'm not sure if any book goes in depth on it. Because their objection is to abortion, not contraception. If a contraception method is not proven to cause abortions then mandating it isn't a substantial burden. Might as well argue that equal pay for women causes abortions and is a substantial burden if you're going to say that scientific evidence for physical consequences is irrelevant. Science can't prove whether their God exists or whether abortions make Him cry. It can prove whether this or that method of contraception can stop implantation or abort an implanted zygote. Free Exercise protects religious beliefs like the former, not scientific questions like the latter. That's the difference. VitalSigns fucked around with this message at 20:48 on Dec 3, 2013 |
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Dec 3, 2013 20:44
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Amarkov posted:And they were the 7 justices that ruled the same way on the 5-4 case, because oh my god that loving case. Broad overview (because I'm too lazy to effortpost right now):
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Dec 3, 2013 21:18
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Emanuel Collective posted:Jeffrey Toobin's "The Nine" talks about it a little bit, but I'm not sure if any book goes in depth on it. Their religious objection doesn't hinge on the existence of God, it hinges on whether the birth control methods they are denying are significantly more adept at 'abortion' (in the sense that they prevent implantation but not fertilization) than car crashes or sports accidents, because if their standard is "the possibility of a fertile egg being prevented from implanting" then they may as well have the freedom to write their employment contracts in unspeakably arcane ways to restrict pregnant women to bed rest within the store so that the chance of their body spontaneously miscarrying as a result of their actions (be it taking a pill, having an IUD in there, tripping down stairs, or just plain being highly stressed) is minimized. Seeing as though their wages might enable a possibly abortion-causing activity under their definition of it and your dismissal of any burden of scientific basis for it, it would follow that being entitled to deny those birth control methods would also allow confining expectant employees to the store.
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Dec 3, 2013 21:21
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Edit: Reading up on what the hell I'm talking about.
Pythagoras a trois fucked around with this message at 21:28 on Dec 3, 2013 |
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Dec 3, 2013 21:22
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