(Hobby Lobby) Argument recap: One hearing, two dramas

The Supreme Court, in a one-hour, twenty-eight-minute session Tuesday, staged something like a two-act play on a revolving stage: first the liberals had their chance and Justice Anthony M. Kennedy gave them some help, and then the scene shifted entirely, and the conservatives had their chance — and, again, Kennedy provided them with some support.

So went the argument in the combined cases of Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius. The “contraceptive mandate” in the new federal health care law, challenged under federal law and the Constitution, fared well in the first scene, and badly in the second.

But the ultimate outcome, it seemed, will depend upon how Justice Kennedy makes up his mind. There was very little doubt where the other eight Justices would wind up: split four to four.

In the first drama, Kennedy worried over the plight of female workers, and he suggested that their interests could be protected with little cost to their employers. In the second he worried over the plight of corporations owned by families opposed to abortion and he implied that forcing them to pay for it would be wrong.

The hearing could not have been a pleasant experience for two experienced advocates — Washington attorney and former U.S. Solicitor General Paul D. Clement, and current Solicitor General Donald B. Verrilli, Jr., making a return engagement from their encounter two years ago when the Affordable Care Act first came up for review in the Court — when each won something.

In the end, what made trouble for each of them Tuesday was the slippery slope: if we ruled for you, what would that mean for other factual scenarios or other laws that might impinge on religious beliefs?

Clement was badgered throughout his time at the lectern, especially by Justices Elena Kagan and Sonia Sotomayor, who suggested that if corporations gain an exemption from having to provide birth-control services for their female employees, then the next complaint would be about vaccinations, blood transfusions, and a whole host of other medical and non-medical services that a company or its owners might find religiously objectionable.

Early in the argument, Justice Kennedy asked non-committally how the Court could avoid the constitutional issue of the mandate’s impact on the right to freely exercise religion. Clement said it would be easy, and relying only on a federal law, the Religious Freedom Restoration Act, would clearly favor a corporate exemption to the mandate.

When Kagan and then Sotomayor said corporations could accommodate their female workers’ access to contraception at little financial cost, either by paying a penalty for not providing the service in the health plan or by giving up such a plan altogether, Kennedy chimed in to suggest that, financially, at least, it would be “a wash.”

When those two explored whether the government was letting too many businesses escape the mandate by “grandfathering” their health plans, Kennedy interrupted to say that the conversation was focusing only on the mandate from the perspective of the employers. What about the workers, who may not agree with their employers’ religious beliefs, Kennedy asked skeptically: ”Does religion just trump that?”

When it was Solicitor General Verrilli’s turn at the lectern, he found immediately that Chief Justice John G. Roberts, Jr., and Justices Antonin Scalia and Samuel A. Alito, Jr., were ready to pounce, disputing each of the government lawyer’s core points about the need for the contraceptive mandate in this context.

When Verrilli began putting heavy emphasis on his point that the Court, in weighing religious claims, must take full account of the negative impact that has on “third parties” who would be affected, Justice Scalia told him that the RFRA law makes no mention of third-party interests.

When Verrilli said the Court has never found a right to exercise religion for corporations, Alito wondered if there was something wrong with the corporate form that it would not be accorded religion freedom rights. Did Verrilli agree, Alito said, with a lower court’s view that the only reason for a corporation to exist was to “maximize profits?” Verrilli said no, but Alito had made his point.

Chief Justice Roberts wondered why, if a corporation could bring a claim of race discrimination, why couldn’t it bring a claim of religious discrimination? And, seeming to look for a way to rule narrowly for corporations, he suggested that the case might be decided by finding such protection only for corporations that are owned by a tightly limited group of shareholders. Verrilli tried to resist both thrusts.

As Verrilli’s situation worsened, Justice Kennedy moved in to wonder why it was that Congress would allow a government agency — the Health and Human Services Department — “the power to decide a First Amendment issue of this consequence…. That is for Congress, not for an agency.” Kennedy would repeat that criticism later in the argument.

Although the Solicitor General had to contend mostly with questions and comments by the conservative members of the Court, he also had some difficulty when one of the Court’s moderate liberals — Justice Stephen G. Breyer — finally moved into the argument to ask why the government couldn’t just pay for the services it wanted female workers to have.

Verrilli tried to answer by saying that, if the government did try a different way to assure such services for corporate employees, the religious owners of some companies would just challenge that, too. That did not satisfy Breyer, who wanted to know “how this case fits into the broader spectrum” of how courts and government accommodate religion.

Breyer did not seem to be lining up with the corporations, but instead looking for assurances that a ruling against them in this case might have broader implications that worried him.

The low point for Verrilli, however, came late in his argument, when Justice Kennedy told him bluntly: “Under your view, for-profit corporations can be forced to pay for abortion. Your reasoning would permit that…. You say that for-profit corporations have no standing to litigate what their shareholders believed.”

Wisely, and predictably, Clement would start his rebuttal with Kennedy’s comment about corporations being forced to pay for abortions. He obviously wanted that thought to linger as the Justices left the bench.

However, the courts have interpreted the word “person” to include a corporation many times because corporations are generally a group of owners, who are human beings. Owners do not have to work for a corporation that they own.

There is a legal construction principle called "ejusdem generis," which means "of the same kind, class, or nature." What it is used for is the construction and interpretation of lists and examples. And what it requires is that all of the things in any list or examples be the same.

As I said earlier, human beings under the original Constitution have God-given rights. While corporations ahve no rights, but State granted and limited privileges. These two powers - rights versus privileges - are fundamentally opposite in nature, and therefore are mutually exclusive. You cannot have rights and privileges in the same entity under the same conditions at the same time. It's either - or. You can be free, or you can be a slave, but you can't be both.

Whenever a statute lists it's application to corporations, it actually specifies a group of corporate types - usually including "individuals, partnerships, trusts, limited liability corporations and corporations." If you look up the definition of the word "individual" in the US Code, it says that it means "person."

However, under the principle of ejusdem generis, all of the things in that list have to be the same. So you can't have some entities having rights (persons and individuals), and other entities having privileges (partnerships, trusts, limited liability corporations and corporations). They ALL have to have EITHER rights OR privileges.

And corporations CANNOT have rights.

Therefore, statutory "persons" and "individuals" DO NOT have rights either.

This mystery is solved when you examine the detailed statutes, which are usually hidden, that go on to describe APPLICABLE "persons" and "individuals" as having CORPORATE REPRESENTATION AUTHORITY, as well as actually doing whatever it is the statute is addressing under that corporate authority.

So the only human people who are under corporate law are those who are representing that company, in other words, acting as its agents as a corporation. This DOES NOT include "employees" who work FOR the corporation, but not AS its representatives (such as the officers, board, etc.).

So you see why keeping this strictly narrow meaning of the words "person" or "individual" an open secret is so important. Because as it is, if a government agent asks you if you are a person or an individual, and you say yes, you are accepting the loss of your rights under the status of a corporately limited representative - and thus making yourself voluntarily liable to corporate statutes that otherwise simply would not otherwise apply to you.

And that is what "person" and "individual" REALLY mean.

Wrong. The Court has recognized that the First Amendment applies to corporations, e.g., First Nat. Bank of Boston v. Bellotti , 435 U. S. 765 , and extended this protection to the context of political speech, see, e.g., NAACP v. Button , 371 U. S. 415 .

First Amendment PRIVILEGES.

The Demise of the Right-Privilege Distinction in Constitutional Law is a discussion of the blurring of the use of the TERMS "rights" and "privileges" in the Harvard Law Review.

However, this article does not equate God-given rights with government granted privileges. What it does is follow court twistings and turnings to re-define "rights" as those privileges that are so crucial to the functional operations of corporate entities (as subject to 14th Amendment federal jurisdiction), that to deprive them would be equivalent to functionally destroying them, or ensuring their demise.

That is not the same as acknowledging something untouchable because it is God-given. In fact, it is because it is not the same, that judges and justices have slithered around the involved definitions for a hundred years, and articles like this one have been published to justify the slithering. Because the big problem has been the CLEAR distinction between the two jurisdictions. So equating the two as jurisidictionally equivalent "privileges" has occupied a LOT of effort by the legal system over many, many years.

Nevertherless, this effort has been in terminology ONLY - not ACTUAL jurisdiction. God-given rights are subject to Common Law jurisdiction, while privileges (whether they are called rights or not) are subject to Administrative Statutory, Regulatory or Admiralty Law jurisdiction (they all being the same jurisdiction applied to different situations). This has not changed a bit - NO administrative court will base itself on the Common Law, and so does NOT deal with God-given Constitutional rights.

And it was the 14th Amendment that codified this diverting of the Court into solely Administrative jurisdiction.

I've made a great deal of legal truths very plain to you and others in this thread. However they are not rare in themselves - just left unspoken by lawyers and judges. For these issues are made clear to first year law students as matters of simple fact. So your "arguments" are juvenile and tedious, not to mentions belligerently obstructionist denials of simple logic. For that reason, I don't believe that you don't understand the truth of what I am saying. Rather, I think you are... motivated... to prevent other readers from accepting their own understanding of it. And as this subject has to do directly with the freedoms understood and claimed by Americans, I'm afraid that doesn't sit you very well in my eyes - at all. So I won't be wasting my time with you again.

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