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Justice Kagan, You Gotta Serve Somebody (SCOTUS on the HHS mandate)
The Catholic Thing ^ | March 28, 2014 | Francis J. Beckwith

Posted on 03/28/2014 3:57:18 PM PDT by NYer

No man can serve two masters: for either he will hate the one, and love the other; or else he will hold to one, and despise the other. Ye cannot serve God and mammon. (Matthew 6:24 – ERV)
 
But you’re gonna have to serve somebody, yes indeed

You’re gonna have to serve somebody

Well, it may be the devil or it may be the Lord

But you’re gonna have to serve somebody
--Bob Dylan, “Gotta Serve Somebody” (1979)
 

Reading the transcript of Tuesday’s oral arguments before the Supreme Court in the Hobby Lobby and Conestoga cases, I came across this exchange between Justice Elena Kagan and the attorney for Hobby Lobby, Paul Clement:

 
MR. CLEMENT: Well, just to put this in concrete terms, for Hobby Lobby, for example, the choice is between paying a 500 – a $475 million per year penalty and paying a $26 million per year coverage.
 
JUSTICE KAGAN: No, I don’t think that that's the same thing, Mr. Clement. There’s one penalty that is if the employer continues to provide health insurance without this part of the coverage, but Hobby Lobby could choose not to provide health insurance at all. And in that case Hobby Lobby would pay $2,000 per employee, which is less than Hobby Lobby probably pays to provide insurance to its employees. So there is a choice here. It’s not even a penalty by – in the language of the statute. It’s a payment or a tax. There’s a choice. And so the question is, why is there a substantial burden at all?
 
MR. CLEMENT: Well, just to be clear, we were talking about the same thing. So the option, the choice, is between paying a $475 million a year penalty and a $26 million a year penalty. That’s what Hobby Lobby faces. So $2,000 per person.
 
JUSTICE KAGAN: No, between paying $2,000 per employee per year if Hobby Lobby does not provide.
 
MR. CLEMENT: That’s $26 million.
 
JUSTICE KAGAN: You know, Hobby Lobby is paying something right now for the – for the coverage. It’s less than what Hobby Lobby is paying for the coverage. There are employers all over the United States that are doing this voluntarily because they think that it’s less.

So, according to Justice Kagan, the way that the Green family, the owners of Hobby Lobby, can avoid this “substantial burden” is to simply not offer to their employees health insurance of any kind.  Consequently, they not only do not have to provide to their employees pharmaceuticals that are used to end nascent human life (which is what the Greens object to in the HHS mandate),  they are financially in a better position than they were before. How can one not like this deal? Thus, reasons Kagan, if the Greens have the right under the Affordable Care Act to choose to relieve themselves of this substantial burden and do not exercise that right, it is the Greens, and not the government, that is placing a substantial burden on the Greens.


              Elena Kagan

Although it is the sort of argument that has a lot of cachet in some legal circles – for it seeks to reduce religion, as with just about everything else, to non-religious categories (e.g., economics, personal desire, etc.) – it fails precisely because of its eliminative nature. Since it cannot take the Christian theology of the Greens seriously – as an independent knowledge tradition with its own categories, concepts, and methods of inquiry – it cannot possibly provide grounds for rejecting their substantial burden claim.

To provide an example: an atheist citizen subpoenaed to testify about what his friend had told him about a robbery the friend may have committed is not as serious a constraint on the atheist’s liberty in comparison to the case of a Catholic priest subpoenaed to testify about what a penitent told him in the confessional about a robbery the penitent may have committed.  For the atheist, revealing this secret, though perhaps emotionally painful, is not a mortal sin that he believes results in the loss of sanctifying grace and automatic excommunication from the Catholic Church.  But it is for the Catholic priest. 

Because of her eliminative analysis, Justice Kagan cannot see the real nature of the choice the Greens actually face. It is not between two different sorts of economic transactions, one of which is cheaper and avoids the government coercion they loathe. Rather, when placed in its appropriate context, the Greens’ Christian faith, the choice they have been offered by the government is a Hobbseian one.

Either they must acquiesce to the HHS mandate and materially cooperate with the termination of nascent human life, and thus violate their conscience and what they believe is a clear command of God (Psalm 127:3), or they must cease offering health benefits to their employees, and thus violate their conscience and what they believe is a clear command of God: “But if anyone has the world’s goods and sees his brother in need, yet closes his heart against him, how does God’s love abide in him? Little children, let us not love in word or talk but in deed and in truth.” (2 John 3:17-18)

The religion that the Greens, and many Americans, practice, having deep and sophisticated historical roots and finding its expression in such diverse believers as St. Paul, St. Augustine, St. Teresa of Avila, John Calvin, Pope John Paul II, and Billy Graham, is about who one is going serve. The attempt to capture it in the categories of law and economics, as Justice Kagan tries to do, simply distorts that reality. 


TOPICS: Business/Economy; Constitution/Conservatism; Extended News; Philosophy
KEYWORDS: conscience; hobbylobby; obamacare
Francis J. Beckwith is Professor of Philosophy & Church-State Studies, Baylor University.


1 posted on 03/28/2014 3:57:18 PM PDT by NYer
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To: Tax-chick; GregB; Berlin_Freeper; SumProVita; narses; bboop; SevenofNine; Ronaldus Magnus; tiki; ...
Either they must acquiesce to the HHS mandate and materially cooperate with the termination of nascent human life, and thus violate their conscience and what they believe is a clear command of God (Psalm 127:3), or they must cease offering health benefits to their employees, and thus violate their conscience and what they believe is a clear command of God: “But if anyone has the world’s goods and sees his brother in need, yet closes his heart against him, how does God’s love abide in him? Little children, let us not love in word or talk but in deed and in truth.” (2 John 3:17-18)

Catholic ping!

2 posted on 03/28/2014 3:58:01 PM PDT by NYer ("You are a puff of smoke that appears briefly and then disappears." James 4:14)
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To: NYer

Justice Elena Kagan is an atheist.


3 posted on 03/28/2014 4:02:59 PM PDT by SatinDoll (A NATURAL BORN CITIZEN IS BORN IN THE USA OF USA CITIZEN PARENTS)
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To: SatinDoll
Judge Kagan is the Dean of the Harvard Law School that instituted the Sharia Institute of Study at that university. She's another sell out.
4 posted on 03/28/2014 4:04:41 PM PDT by vetvetdoug
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To: NYer

There’s one penalty that is if the employer continues to ~~~~~~ It’s not even a penalty by~~~~~~~~~ in the language of the statute. It’s a payment or a tax~~~~~~~~

Even this stupid woman doesn’t know what to call it but you can bet she decided it was constitutional!!!!


5 posted on 03/28/2014 4:05:12 PM PDT by Thank You Rush
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To: NYer

This Bull Dyke doesn’t know anymore about religion than she does about the Constitution., which is practically nothing!


6 posted on 03/28/2014 4:06:28 PM PDT by Jim from C-Town (The government is rarely benevolent, often malevolent and never benign!)
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To: SatinDoll

Who is this Kagan you speak of...

is it the Honorable former-Solicitor General Supreme Court Justice Elana “Never Heard of Recuse” Kagan?


7 posted on 03/28/2014 4:11:54 PM PDT by C210N (When people fear government there is tyranny; when government fears people there is liberty)
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To: NYer

The Religion Tax.


8 posted on 03/28/2014 4:12:29 PM PDT by TigersEye (Stupid is a Progressive disease.)
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To: BuckeyeTexan

Of possible interest to your list, ping!


9 posted on 03/28/2014 4:12:37 PM PDT by NYer ("You are a puff of smoke that appears briefly and then disappears." James 4:14)
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To: NYer

Satan.

She serves Satan.

Just my opinion.


10 posted on 03/28/2014 4:14:01 PM PDT by BenLurkin (This is not a statement of fact. It is either opinion or satire; or both.)
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To: NYer
This attitude is frankly characteristic of the radical tradition of her parents and brother, which Kagan has largely hidden successfully throughout her career, and has little, if anything to do with religion and everything to do with the fact that our compassionate liberals care only about ideological purity and for all their posturing care nothing for people at all.

For Elena Kagan would rather Hobby Lobby be forced to bend the knee to her worldview than anything else. So much so in fact that she advocates and even encourages Hobby Lobby to provide NO BENEFIT TO THEIR EMPLOYEES at all rather than accept an imperfect implementation of the dictats of her cause.

11 posted on 03/28/2014 4:18:06 PM PDT by FredZarguna (Das ist nicht nur nicht richtig, es ist nicht einmal falsch!)
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To: NYer

You’re supposed to serve the Constitution/law, Ellen, not the naked emperor.


12 posted on 03/28/2014 4:21:47 PM PDT by E. Pluribus Unum ("The man who damns money has obtained it dishonorably; the man who respects it has earned it.")
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To: SatinDoll

Also a clam-diver


13 posted on 03/28/2014 4:22:17 PM PDT by Viennacon
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To: SatinDoll

No. I think she worships the dark lord satan.


14 posted on 03/28/2014 4:36:33 PM PDT by spudville
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To: C210N; SatinDoll
C210N:" Who is this Kagan you speak of...
is it the Honorable former-Solicitor General Supreme Court Justice Elana “Never Heard of Recuse” Kagan? "

I thought Kagan previously recused herself from the mis-named ACA (Affordable Care Act) as she was instrumental in drawing up the document.
Am I incorrect ?

15 posted on 03/28/2014 4:44:07 PM PDT by Tilted Irish Kilt (Enlightened statesmen will not always be at the helm. -- James Madison)
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To: Tilted Irish Kilt
If she recused, it was in an alternate universe.


16 posted on 03/28/2014 4:53:04 PM PDT by C210N (When people fear government there is tyranny; when government fears people there is liberty)
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To: C210N

Too chunkie FUNNEY !!!


17 posted on 03/28/2014 4:55:46 PM PDT by Tilted Irish Kilt (Enlightened statesmen will not always be at the helm. -- James Madison)
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To: NYer
Video of Bob Dylan singing the song here
18 posted on 03/28/2014 4:55:57 PM PDT by chajin ("There is no other name under heaven given among people by which we must be saved." Acts 4:12)
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To: Tilted Irish Kilt

She did recuse for a case later on... the Arizona immigration case, I believe? Probably did that thinking the recusal uproar would die down, as the cases merged together over time...

I know I won’t let it go. Evah.


19 posted on 03/28/2014 4:58:23 PM PDT by C210N (When people fear government there is tyranny; when government fears people there is liberty)
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To: NYer

The United States Government - Enacting laws to drive you away from religion.


20 posted on 03/28/2014 5:12:13 PM PDT by Bryan24 (When in doubt, move to the right..........)
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To: FredZarguna

Yes, I suspected she was basically from a family who never assimilated. It’s a pity they were let in to begin with.


21 posted on 03/28/2014 5:22:22 PM PDT by MSF BU (n)
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To: NYer

Using simple numbers. Hobby Lobby HC cost per employee $10,000. Eliminate coverage, pay the $2000 fine, add the other $8000 they save to the employees wages. The employee now has $8000 in increased wages to replace a $10,000 policy. Who gets screwed in this scenario? Why didn’t the lawyer explain this to the lesbian hippo?


22 posted on 03/28/2014 6:25:25 PM PDT by Joshua (Jimmy is the reason for this)
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Everyone’s master should be freedom.


23 posted on 03/28/2014 6:48:23 PM PDT by USCG SimTech (Honored to serve since '71)
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To: NYer; Lurking Libertarian; Perdogg; JDW11235; Clairity; Spacetrucker; Art in Idaho; GregNH; ...

FReepmail me to subscribe to or unsubscribe from the SCOTUS ping list.

24 posted on 03/28/2014 7:12:35 PM PDT by BuckeyeTexan (There are those that break and bend. I'm the other kind. ~Steve Earle)
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To: NYer

Can someone remind me again why “Justice” Kagan hasn’t recused herself from this case due to her clear conflict of interest?

Oh, yeah.


25 posted on 03/28/2014 7:32:45 PM PDT by Colonel_Flagg (Some people meet their heroes. I raised mine. Go Army.)
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To: C210N
Supreme Court Justice Elana “Never Heard of Recuse” Kagan?

She recused herself in literally dozens of cases-- every one where she had signed a brief as Solicitor General.

26 posted on 03/28/2014 8:38:26 PM PDT by Lurking Libertarian (Non sub homine, sed sub Deo et lege)
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To: BuckeyeTexan

Can you explain to me how Kagan can sit in judgment over a law she helped write?


27 posted on 03/28/2014 9:12:16 PM PDT by Hoodat (Democrats - Opposing Equal Protection since 1828)
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To: NYer

Elections matter. She’ll be ruining decisions for decades.


28 posted on 03/29/2014 9:54:34 AM PDT by 1010RD (First, Do No Harm)
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