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VitalSigns posted:Does the argument that health insurance is compensation for work done, and thus the property of the employee and not the employer? The government is fully within its rights to regulate what employment contracts are appropriate and what are not, and religion is not an excuse to flout OSHA regulations. 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. Congress responded by passing the RFRA which essentially changes all past and future laws and regulations (at the time it included states, that part was held to be unconstitutional) to essentially create a religious exception: if a law substantially burdens a person's exercise of religion then it doesn't apply to them unless the law (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. This works for past laws because it simply amends them to comply, and for future laws it creates a presumption they have this silent exception unless they explicitly state they don't (because any future Congress can't be bound just by a law). So yes, the government is absolutely free to make this regulation under the Constitution. It's an issue of if they can do this under the RFRA, because Obamacare didn't exempt itself from the RFRA.
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# ¿ Dec 2, 2013 20:58 |
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# ¿ Mar 29, 2024 16:39 |
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The Warszawa posted:I mean if any phrase describes the Supreme Court, it'd be "an incestuous, ultraviolent fuckfest full of archaic gender and racial politics and also bizarre ideas on how language should work." Souter clearly was Jaime Lannister, both the conversion from evil to good and the apparent lack of interest in women not related to him.
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# ¿ Dec 2, 2013 21:55 |
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Zeroisanumber posted:I know that the Roberts Court is batshit, but a Hobby Lobby decision upholding the contraceptive mandate is a pretty sure thing, isn't it? We've barely touched on the can of worms that striking it down would open, and SCOTUS has to be aware of that, right? Right??? You need to figure out which one of the five conservatives are going to vote to uphold the mandate. Remember, Kennedy isn't really a swing vote on Obamacare, he was leading the charge to overturn the entire law. It's certainly not a sure thing.
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# ¿ Dec 2, 2013 22:45 |
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twodot posted:Morally, I understand why you might require your second test. What legal basis do you have for making the second requirement? A "substantial burden" to your religious rights is required. If you're being asked to do something you do all the time, clearly it's not a substantial burden.
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# ¿ Dec 5, 2013 14:57 |
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Korak posted:I don't think they'd rule in favor of a company that doesn't want any health care for their employees because the owners believe in healing prayer only. I don't think they're gonna rule in favor of Hobby Lobby's cert that women that work for them no matter the issue cannot get birth control. It's pure ignorance from a medical stand point that a 50 year old woman that is infertile but needs BC because of some issue should be denied it. It's easy to draw a distinction between the two: the RFRA allows a substantial burden on religious exercise if it's a "compelling governmental interest" and the "least restrictive means of furthering that compelling governmental interest". It is very easy to write a decision on the basis that health care is a compelling governmental interest, but contraceptive care specifically is not if that's how you want to rule.
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# ¿ Dec 5, 2013 16:42 |
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The Entire Universe posted:Would the systemic costs (fiscal and social) of unplanned/unwanted pregnancies be sufficient? There's plenty of legitimate ways to say this is a compelling governmental interest. I'm not saying the position I outlined is correct or that it is what will happen. What I'm saying is that Korak's argument - which I read as essentially saying "they can't rule for Hobby Lobby here because they'd have to make a ruling that would be completely insane as applied here" is wrong, because there's an easy way they can draw a line between the two. You cannot rely on them upholding the contraception mandate with the theory that striking it down would let any religious group object to any medical procedure being covered: the law gives them the wiggle room to draw distinctions that pass the laugh test.
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# ¿ Dec 5, 2013 19:10 |
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twodot posted:What's the legal basis for this? The standard of "something you do all the time" doesn't seem coherent to me, and generally, I don't see why being a lovely (or in this case, hypothetically unaware of science) Christian should allow the government to substantially burden sincere beliefs. Like I said, part of "substantial burden". The RFRA carves out exemptions for individuals, it doesn't overturn laws because they substantially burden one person's exercise of religion. You're assuming that substantial burden in the bolded part: I'm saying this is something that is evidence something is not a substantial burden (or the belief is not sincere). So if you go to court and tell them that it substantially burdens your exercise of religion for the government to compel you to do X, it is a reasonable inference that if you do X routinely then doing X does not, in fact, substantially burden your exercise of religion. To make a parallel to a similar sort of situation - if you say you're immune to the draft because you're a conscientious objector to the use of violence in all forms, if the government then provides evidence you get into brawls on a routine basis and have injured several people, that's a strong argument your supposed objection to the use of violence in all forms is bullshit. Likewise, if you go into court and tell them that paying for contraception is a substantial burden on your exercise of religion and a receipt showing you paying for birth control pills for yourself/your wife/whoever falls out of your pocket, that also strongly suggests your professed substantial burden is bullshit.
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# ¿ Dec 5, 2013 21:23 |
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VitalSigns posted:The arguments that the other circuits used to deny the suit are better arguments. I don't know why this one matters to you so much, because even if it prevailed against Hobby Lobby it would set a precedent that other employers who excluded treatments you're talking about could still get exemptions. I am making this argument because twodot is suggesting it's not a valid one. I have no idea where you got "this is the only argument that matters to me" from this discussion, it is the argument I'm discussing because it is the one someone is objecting to.
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# ¿ Dec 5, 2013 22:02 |
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KennyTheFish posted:Using metrics to justify compensation for anything except for simple repetitive tasks has been shown to not be effective, and in most cases counter productive, in almost every study done in the last 30 years. I'd like to see this data.
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# ¿ Jan 23, 2014 15:13 |
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mcmagic posted:... There is actually a decent argument that people should be able to smoke peyote for their religion since it doesn't effect anyone else. Yes, but you're evading the point: religious ideas can be sincerely held even when scientifically wrong. Another example is the mormon belief that Native Americans are a lost tribe of Israel (definitively disproven through DNA testing).
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# ¿ Mar 26, 2014 18:42 |
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mcmagic posted:I'm not sure that it would be all that much worse but it seems like something that would be ripe for abuse and wouldn't outweigh that with its benefits. Ripe how? I mean you've posted three times about it and can't come up with a single abuse.
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# ¿ Mar 26, 2014 22:19 |
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Chokes McGee posted:You are aware of the fact that Slippery Slope is a logical fallacy, yes? It's only a fallacy when the argument is unsupported. It is a perfectly reasonable logical device when you can draw causal links between the various parts of the slope. And when it's being used in the fallacious manner you attack it by attacking on the merits instead of labeling it and moving on because you need to demonstrate that B doesn't flow from A.
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# ¿ Mar 27, 2014 15:27 |
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Crows Turn Off posted:Even if their beliefs are sincerely held, they are factually wrong about how those birth control methods work, so it shouldn't matter. As a practical matter, we simply don't want courts getting into the business of deciding what religious beliefs are provably incorrect and which are not. One of the reasons for religious protection and freedom of religion is essentially a truce, everyone agrees to leave each other's religious beliefs alone no matter how nutty they may be. There is absolutely zero benefit to ending that truce. What's at issue here is not the scientific validity of their beliefs. It's the extent that "religious freedom" should cover interactions between them and third parties. That's the real issue here and trying to avoid it by arguing Hobby Lobby is insincere or factually wrong simply postpones it, and it's a serious issue that needs to be addressed given the increasing use of religious freedom as an offensive weapon against gays, women, etc.
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# ¿ Mar 27, 2014 17:22 |
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Unzip and Attack posted:Can someone explain/outline for me how corporate health coverage for employees works in terms of how it financially benefits the company? I thought compensation given to employees in the form of healthcare counted as a tax write off - is that not the case? Also do companies face a fine if they don't offer insurance as a part of their compensation? It benefits employers because (before Obamacare) employees could only get good health coverage through an employer and so an employer could pay less overall by paying for health coverage and giving a lower salary than paying the salary that would make an employee equally happy to work there without health coverage. Tax issues also factor into this as well, but the primary reason really was that you simply needed employer-provided health coverage to have good insurance so employers that offered it were considerably more attractive than those that didn't.
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# ¿ Mar 27, 2014 17:25 |
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piscesbobbie posted:Does Hobby Lobby not have an issue with the companies they deal with in China? China with the one child only rule, where women terminate pregnancies all the time? People need to stop trying to post "gotchas" because they're all wrong. Hobby Lobby is objecting to paying for contraceptive care directly. It is not, for example, trying to prohibit its employees from taking their pay and spending it on contraceptive care. All of these "gotchas" are trivial for anyone to blow out of the water by looking at the actual facts and make Hobby Lobby's case look much stronger (because it looks like their opponents have to grasp at straws like this). This case comes down to the actual issue: if "religious freedom" should override the government's interest in regulating mandatory contraceptive care and the place where Hobby Lobby's religious freedom ends and the freedoms of their employees begin. You can't get around dealing with that issue, and it's the only issue to deal with.
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# ¿ Mar 28, 2014 15:28 |
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Radish posted:Let me see if I have this right. The employees through their plan should be able to use the bargained price that the insurance company has access to via a co-pay which would mean that Hobby Lobby does not actually "pay" for their birth control. However Hobby Lobby wants that option TOTALLY removed so that their employees now have to get the open market price which is much higher. No. Hobby Lobby is self-insured and required to cover contraceptive care under the contraceptive mandate so that it costs their employees nothing out of pocket. It is not an option to have employees cover the actual cost via co-pay: what he is describing is a separate issue.
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# ¿ Mar 28, 2014 15:45 |
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DeusExMachinima posted:I was cruising the Wiki on the Hobby Lobby case and ran across this gem: The RFRA was passed in response to that case in order to overturn it.
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# ¿ Mar 29, 2014 18:22 |
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hobbesmaster posted:This shouldn't be an unexpected outcome and directly follows from Citizens United logic. If money is speech then obviously they can't limit it. Its not like you can only spend so many minutes per election cycle talking about a specific candidate. The Court has historically drawn a distinction on spending independent of candidates and giving candidates a big fat check directly, and been more willing to uphold restrictions on the latter. It is worrying they're weakening that and this is another step in the direction of abolishing campaign financing regulations entirely.
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# ¿ Apr 2, 2014 16:12 |
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axeil posted:Is Congress able to write legislation they know is going against a court ruling to specifically attempt to get a new ruling on an issue? Yes, they are. But the Supreme Court doesn't have to take it.
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# ¿ Apr 2, 2014 16:57 |
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Teddybear posted:Also, the Supreme Court is only effective because the rest of the country abides by its rulings. Undercutting that may not be a good thing. Passing a new law specifically to prompt a new ruling because you think the Court has changed its mind isn't really a problem though. It's only a problem if you start claiming you're going to just repass it anyway, Supreme Court be damned you don't care what they think.
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# ¿ Apr 2, 2014 17:03 |
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The GOP would be justified in going nuclear, them going nuclear in 2014 would be great (because it abolishes the filibuster without any practical effects since Obama is still in office) because it would end the filibuster. The filibuster needs to go, and with its blood on everyone's hands it will probably stay dead. And nobody cares about procedural issues, even if Obama tried to make an issue of it voters wouldn't care.
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# ¿ Apr 3, 2014 18:53 |
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CheesyDog posted:I realized as I submitted I phrased that in a very stupid way. Can a SuperPAC now seek to compel a CANDIDATE to take a specific action not related to the actual duties of their office? For example - could a hypothetical Third Party PAC state "any candidate who refuses to debate at least one third party candidate will have $x in ads directed against them"? You always could.
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# ¿ Apr 4, 2014 22:06 |
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The commerce clause stuff was just a way to get around a number of post-reconstruction Supreme Court decisions gutting the Civil Rights Amendments rather than force the Supreme Court to overturn them. The Supreme Court basically gutted those amendments once the popular support for reconstruction was gone. While there's cases to argue over if the commerce clause is being stretched too far, in this case it shouldn't have even been needed.
evilweasel fucked around with this message at 14:24 on Apr 14, 2014 |
# ¿ Apr 14, 2014 14:22 |
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Ghost of Reagan Past posted:While I know stare decisis is really important, why can't/won't the Supreme Court overturn those post-reconstruction decisions? That seems like a no-brainer to me. It's never come up, really. When the Civil Rights Act was originally passed, naturally Congress stuffed in the commerce clause so they maximized the chance the Act was upheld: it was far more important to pass the Civil Rights Act and have it enforced than overturn those old decisions. Since then, what court cases would come up that would really challenge those old decisions on Congress's power to ban racial discrimination? Every so often there's a case that comes up that gives an opening to reconsider another one of those, the decision on the Privileges and Immunities Clause. However in those cases we've been pretending everything that should be protected under that clause is actually protected under the due process clause that there's no real reason to overturn all of that precedent. Plus, it would potentially open up new cans of worms on what else should be protected under the P&I clause that nobody's really eager to do it besides Justice Thomas. There's just no reason to rewrite all of those decisions to try to get the same results. This happens in other cases as well: Korematsu v. United States is still technically good precedent, even though everyone recognizes that it's a dead letter constitutionally. The Justice Department published a notice that the Solicitor General had lied to the Supreme Court in 2011 and filed a formal notice of error that effectively erases the decision as precedent, Korematsu's conviction itself was overturned on the same basis in 1983, and both Justice Scalia and Roberts have openly said it was an error. But nobody's actually given the Supreme Court an opening to declare the case a dead letter, so it remains. evilweasel fucked around with this message at 16:52 on Apr 14, 2014 |
# ¿ Apr 14, 2014 16:46 |
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mdemone posted:Are they allowed to mention that it is dead, for example, in a majority opinion for another case altogether? Would that erase the precedent, or does that kind of reference not bear the weight of law? There's nothing that actually stops them, but the Supreme Court is not supposed to issue advisory opinions or decide matters not before the court. It would be a bad precedent to set because it could be abused in the future. There's been incidents like that though: a footnote in a case about milk included this footnote, basically a "here is how to present cases on racial discrimination to the Supreme Court and the rules you should ask us to apply": quote:There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth. . . . That's a footnote laying out that the Court was going to be subjecting racial discrimination to strict scrutiny... in a case that dealt with a federal law that prohibited filled milk (skimmed milk compounded with any fat or oil other than milk fat, so as to resemble milk or cream) from being shipped in interstate commerce. But even there they made no actual decision, just heavy hinting.
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# ¿ Apr 14, 2014 17:08 |
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mdemone posted:Every day I grow more befuddled at Roberts having joined the majority in the PPACA decision, given that he's obviously a loving animal. He originally didn't. But overturning Obamacare in its entirety was just too far for him and he pulled back. Remember, the dissent was going to overturn every single word of Obamacare because of the mandate. Had they been able to restrain themselves somewhat they might have kept him.
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# ¿ Apr 22, 2014 17:54 |
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Thwomp posted:Do rabbit-ear/Mohu Leaf/VHS manufacturers pay for retransmission fees? Have they ever? Basically, if you view this as like having your own antenna, or like trying to use a legal loophole involving a hardware workaround. It's actually sort of a hard case where the rules were all set with absolutely no idea that something like this was possible (the language at issue, what a "public performance" is, was written in 1909 and then clarified in 1976). evilweasel fucked around with this message at 18:57 on Apr 22, 2014 |
# ¿ Apr 22, 2014 18:52 |
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hobbesmaster posted:You don't have to have your own antenna though. Retransmission within the local area is explicitly legal. Retransmission over a different medium is not. It's definitely an infringement for me to put up a single antenna and stream that over the internet to anyone who wants to see. Aereo is saying that because they have multiple antennas, it is not illegal.
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# ¿ Apr 22, 2014 18:58 |
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Thwomp posted:And it sounds like the justices asked a lot about the differences between private and public performances. Reports coming out now say that they questioned Aereo's purpose for using so many antennas but were also really concerned about going too broad. Right. It's really easy to characterize this as merely an improvement over your own rabbit ears, or merely as a cynical workaround of obvious existing law. But whichever you pick it's surprisingly hard to write a rule that works.
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# ¿ Apr 22, 2014 19:01 |
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Mo_Steel posted:Being as I haven't watched over-the-air television in maybe a decade this might seem like a dumb question, but is it legal to rent an antenna to receive OTA broadcasts currently? For example, could an apartment complex have a dozen antennas installed on it's rooftop made available for tenants to rent and then charge them $5 each month for the service? Probably, but nobody's ever done it on a scale big enough to get a decision...until now.
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# ¿ Apr 22, 2014 21:13 |
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ulmont posted:Extremely unlikely. Aereo is a business issue that won't have a natural left/right wing split, so it is the exact sort of thing that could actually get through congress. Its one business interest against another.
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# ¿ Apr 22, 2014 22:48 |
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Cocoa Ninja posted:I didn't understand that this is how Aero operated, thanks for this. I believe you can only sign up for your own city. I think I had to have a credit card with a New York billing zip code to sign up for NY aereo.
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# ¿ Apr 22, 2014 23:12 |
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KernelSlanders posted:That the (individual) plaintiff in a major civil suit against a billion-dollar institution wouldn't have to testify. Why would they have to testify? What issue do you think their testimony would be relevant for?
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# ¿ Apr 23, 2014 16:38 |
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KernelSlanders posted:Foundation for all the application materials to be admitted, especially the essay. Also I'd think the university would want to question him/her about qualifications since he/she alleges she would have been admitted but for her race. Maybe for UT they can get all the admission policies from FOIA, but against Harvard they'll need discovery. Once that happens how do you not depose the plaintiff. You'd stipulate to the accuracy of the application materials and essay as they'd be uncontested. As for what the college would get by their testimony, that they're a terrible person or something is irrelevant to the university's decision to deny admission if the university didn't know about it at the time. Depositions aren't testimony though so while the plaintiff might need to be deposed that doesn't mean they'll testify. The point of the case is arguing the plaintiff wasn't admitted because of their race. All the relevant testimony will be university officials who made the decisions, not the plaintiff. The defense has nothing obvious to gain by calling the plaintiff as a witness.
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# ¿ Apr 23, 2014 17:19 |
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With the recent abolition of the judicial filibuster you'll see appeals courts move left as Obama fills vacancies (the DC Circuit in particular), but with a conservative Supreme Court there's not really much to do except hope that Hillary wins in 2016 and one of the conservative justices croaks. However Breyer and Ginsburg are both getting up there as well so there's no guarantee that the next vacancy is one of the conservatives. That said replacing Stevens and Souter (though he could have lasted decades longer) with younger liberals is a significant win: it keeps it possible that the next President can erase the conservative majority. Had Obama not been elected you'd have been looking at decades of Republican dominance on the Supreme Court. Chait had a good column where he argued that if the Democrats lose the Senate in 2014 and a Republican justice dies (low chance of this: 16% or so by actuarial tables but you've gotta assume as they're wealthy they live longer than average since they get much better medical care), he expects Republicans will simply refuse to confirm anyone at all. They might even if a liberal justice dies, but that's less likely because there won't be the terror that they'll have lost the Supreme Court. So that'll be interesting, low chance of it actually happening though.
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# ¿ Apr 25, 2014 13:30 |
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Chokes McGee posted:Pardon my ignorance, but is this something written into the constitution that X amount of the Senate must confirm the appointment or is it one more part of the filibuster that'll eventually be strung up? If the Republicans hold the Senate, they can just vote down anyone (or refuse to hold a vote on them). The Constitution does require the consent of the Senate and so it's not like the filibuster issue where you can argue you're violating the spirit of the Constitution: the Senate absolutely has the right to vote down a nominee. The more interesting part is there's no requirement for nine justices. It used to be standard that Congress monkeyed with the amount of justices on the bench when they hated or loved the President: that basically ended with the collapse of FDR's court-packing scheme but it could always return. Of course, the issue is there's very obvious practical problems with a 8 person Supreme Court split 4-4 Green Crayons posted:Kennedy is probably the best person to have replaced by a Democrat president, if we're selecting between Scalia (78 years old), Kennedy (77 years old), and Thomas (65 years old). Scalia is absolutely the best person to have replaced by a Democrat: Kennedy leans conservative, but he's not a sure conservative vote. Scalia is. You get much more milage out of replacing Scalia: you have a solid 6-3 majority for abortion rights and gay rights, for example.
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# ¿ Apr 25, 2014 16:04 |
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hobbesmaster posted:Thomas would be better. I mean you'd ideally want Thomas because he's the youngest so you're getting a replacement ahead of schedule, but I'd rather get rid of Scalia because Thomas actually has a legal philosophy, just one I profoundly disagree with. Scalia has a political philosophy, and the right legal answer is always what is in line with that legal philosophy. Thomas will bite the bullet and vote for something he politically disagrees with: Scalia will not. The best example is where Scalia suddenly realized although the commerce clause is the devil, when it comes to the Devil's Weed then it's suddenly ok for the Federal Government to regulate it - but not anything Scalia doesn't want regulated. Also, Thomas's lone dissents, while occasionally nutty, are sometimes useful for pointing out stagnant areas of the law that have just been the way they are because they're old but really should be rethought (like his crusade to resurrect the privileges and immunities clause).
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# ¿ Apr 25, 2014 16:17 |
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mdemone posted:I think we have to consider the possibility that whenever the One True Gay Case comes before SCOTUS, during opinion delivery Scalia might actually pop something loose in his head. Among the bits that haven't already popped loose, that is. That already happened in his Lawrence dissent, when the nationwide gay marriage legalization case comes up his opinion will just be a bitter "told you all they were lying in the prop 8 case and in windsor that they weren't making a decision on gay marriage yet".
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# ¿ Apr 25, 2014 16:32 |
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Ron Jeremy posted:Username post combo. People have been pushing for her to retire for that reason and she's having none of it.
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# ¿ Apr 25, 2014 23:09 |
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# ¿ Mar 29, 2024 16:39 |
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FlamingLiberal posted:Replacing Kennedy would end the 5-4 decisions giving corporations more rights. He has continuously sided with 'corporate rights' since Roberts took over So would replacing Scalia.
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# ¿ Apr 26, 2014 01:23 |