(Art Lien)
Posted on 03/26/2014 2:25:40 PM PDT by NYer
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.
(Art Lien)
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.
Paul Clement arguing for Hobby Lobby and Conestoga (Art Lien)
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.
Solicitor General Donald Verrilli, Jr. (Art Lien)
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.
FYI ping!
They should have filed the original suit against Kagan as well. She helped author the law and this might have helped to get her to recuse herself. Not likely, but possible.
The rule does not force the employees (workers is such a Communist word) to pay for their employers to keep a baby...
The Roberts court is full of crooked Kangaroos.
The real can of worms is what right does the government have to mandate any product?
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.
When and where did the government get the authority to stick a needle in you and tell you have no choice but to like it.
We are slaves! Some people are just to stupid to understand that.
ROFL. Oxymoron much?
A "moderate" liberal? Isn't that the same thing as a moderate Muslim?
For those trying to understand this whole thing, this is the most important quote. Notice Justice Scalia rejecting the interests of "third-parties"? Do you understand that those "third-parties" are YOU? Non-corporate human beings, people with rights, including religious rights, are the third-parties Scalia is saying have NO interests in this matter.
That's because this is a CORPORATE POLICY MATTER, between the government and its corporations. And the ONLY criteria is the best interests of the STATE - not human beings with rights, and not even the interests of corporations per se. Rather, ONLY the interests of the State in how it will be best served by what it allows and commands corporations to do.
That's it - that's ALL of it. I'm not saying it's right, I'm not saying that there aren't a huge number of objections to this system - moral, religious, Constitutional, etc. I'm just saying that's how it actually IS. Thatls what Hobby Lobby's own attorney is trying to convince the Court - that it is in the best interests of the STATE to let Hobby Lobby have the "privilege" (because corporations have no rights) to claim a religious exemption.
You can't fight what you don't understand. So FIRST understand this corporate legal-sleight-of-hand. THEN you can fight it and get real changes in the system.
SCOTUS ping.
Can the court just send it back to Congress for an actual vote?
FReepmail me to subscribe to or unsubscribe from the SCOTUS ping list.
That's incorrect. Scalia was pointing out that the Religious Freedom Restoration Act does not consider third parties at all. RFRA applies only to the party claiming religious freedom and the federal government (not the States, just the feds.).
Verrilli asserted that SCOTUS must consider the negative impacts upon third parties who are not claiming religious freedom and who are not the federal government. Scalia called BS on that.
**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.**
BTTT!
Verrilli asserted that SCOTUS must consider the negative impacts upon third parties who are not claiming religious freedom and who are not the federal government. Scalia called BS on that.
LOL, I would remind you that most people in the country - and apparently on FR, too - believe that what the SCOTUS is ruling on is whether Christians (actual human people) working for business have to pay for abortions through Obamacare.
They do NOT understand that this is a corporation privilege issue.
So from their point of view, they are inculded as one of the "third parties" Scalia indicated that have no standing. Again, this is important because these people believe their interests are the focus of this case.
You’re confused. Corporations are made up of people.
Regardless, the “third parties” to which Verrilli and Scalia were both referring are entities outside of either the federal government or the party who claims their constitutional rights are being violated.
Regardless, the “third parties” to which Verrilli and Scalia were both referring are entities outside of either the federal government or the party who claims their constitutional rights are being violated.
These issues are not a matter of debate - they are matters of legal fact. Corporations are NOT "made up" of "peopl"e - corporations are legal fictions created wholly by the government under and treated are limited persons by the courts. PEOPLE can choose to work for corporations, but they do not "make it up." All the workers may die, and a trust may be used to pay for the legal representation and taxes paid by this PAPER entity, and the courts will treat it just the same. That is a fact.
And that is also why the "third parties" referenced by Verrilli and Scalia are outside of these proceedings - because those people, in and of themselves without corporate status, have no standing in a corporate proceeding (which this is).
I'm not trying to belligerent here - these are legal definitions. And they explain why this hearing can take place at all.
I bet you also believe that corporations actually pay taxes instead of human beings.
All the workers may die,
This case is not brought by workers. It is brought by owners of a corporation, who are human beings.
Again, the question before the court is whether or not the Religious Freedom Restoration Act (RFRA) permits a corporation to refuse to pay for contraceptives because the corporation's owners (who are human beings) have a right to exercise their religion without being substantially burdened by the federal government.
In case you're still confused, the corporation's owners claim that they, as human beings, are exercising their religion by objecting to contraceptives.
Verrilli argued that in order to answer the question presented, the court must consider the negative impacts upon "third parties." Scalia rightly pointed out that the wording of RFRA does not mention the concept of a third party. Under RFRA, there is the federal government (doing the burdening) and the person claiming to be burdened. There are no other parties to consider in answering the specific question before the court.
I’m “confused” - but you think a corporation is NOT a separate entity under the law from the people who work for it.
It’s not that I care that you’re wrong, but you don’t have to add your confusion to those reading your posts.
Unless, of course, that’s the point of your posts.
I’m done wasting my time with your fantasies about the law.
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