Still too much to say about too little....

I told you I had too much to say about this.  I left some of what is below with NTodd, then decided to post it here, too (with further emendations and elaboration because, why not?).

From what I can tell, no court has ever ruled on the validity of Hobby Lobby's opinion about the contraceptives in question: that is, does the sincerity of their belief depend on the validity of their factual claim (that IUD's, Plan B, and Ella are abortifacients?). Or is sincerity of belief a magic shield that stops further inquiry?

The 10th Circuit remanded to the trial court on issues related to a preliminary injunction, which means no final determination of Hobby Lobby's position on the facts was made by a trial court. So all the Supremes are deciding right now is whether or not Hobby Lobby can take this case to trial; or, more accurately, I think all they are really ruling on is whether or not Hobby Lobby has standing on these facts to seek injunctive relief.

I don't think, IOW, there are enough facts here for the Supremes to grant relief. All they can do is remand to the trial court in accordance with the 10th Cir. opinion, which remanded for more work on the injunction issue consistent with the appellate opinion; or overrule the 10th Cir. and say Hobby Lobby can't sue under RFRA, and is barred by the 1st Amendment from bringing a claim; or that the 10th Cir. erred in part, and remand to them for further consideration (this is the least likely outcome, I have to say).

I don't see the Court granting Hobby Lobby the relief they seek, in other words, because the facts are not all in, and no court has yet ruled on whether Hobby Lobby's sincere belief outweighs their mistaken opinion about contraceptives (Kennedy's bewilderment notwithstanding).

Anyway, it explains why the case is before the Supremes on what seems to be a strange set of facts (or, rather, non-facts). And, ultimately, I think that's where the decision really has to turn: is a sincerely held religious belief that is contrary to scientific fact still to be held superior to the science when the determination affects third parties adversely? I mean, it's fine if the Green family wants to declare the earth flat based on sincerely held religious beliefs; but if that clearly erroneous factual belief affects their employees adversely, are they still entitled to impose it on them?

Hobby Lobby included the contraceptives it now objects to in its insurance coverage until the ACA mandate came along.  So there is a factual question of the sincerity of their beliefs that has yet to be tried in the court.  The government at the trial level accepted the validity of Hobby Lobby's beliefs because it was seeking to have the case thrown out on other grounds.  It can still go back and challenge the validity of those beliefs by challenging their factual validity.  After all, if it is my sincere religious belief that prayer will heal my child, am I guilty of child abuse when my child dies from lack of proper health care?  And if I have a sincerely held religious belief but it doesn't affect my conduct until I decide later that, you know what, it really should; just how sincerely held is that belief?

As Michael Dorf pointed out, the question before the Court now is whether RFRA provides corporations like Hobby Lobby (hence the objection of Sotomayor and Kagen) an exemption from the contraception requirements of the ACA.  That determination has broad implications (which is what everyone is exercised about) but it is really a very narrow legal question.  Yes, there are plenty of amicus briefs that want to make this decision about the free exercise of religion in all its manifestations, but that doesn't mean the Court is considering so fundamental an issue as that.  It is also, however, a legal question that doesn't turn on the particular facts of this case.  And there's the rub:  there are, as yet, no particular facts in this case.  There is no statement of facts from the trial court for the 10th Circuit or the Supreme Court to consider.  There are some large legal principles; but those principles will not determine the final outcome of this case; the facts of the case will finally determine what legal principles must apply, and why.

So the Court's opinion will not determine Hobby Lobby's burdens under the ACA once and for all.  If the Court rules Hobby Lobby can bring a RFRA claim, and sets out the legal framework in which it can do so, the case still needs to establish a set of facts in the trial court on the claim that what Hobby Lobby is being required to do is a violation of their sincere religious beliefs because the contraceptives in question are in fact abortifacients.  I think the far more interesting question lies there:  does my sincere religious belief trump clearly valid scientific findings, in a situation where that belief will significantly impact others who don't necessarily share it?

Because in every court case, if you change the facts, you change the outcome.  Even STARK (Scalia, Thomas, Roberts, Alito, Kennedy) can't change that fundamental principle of law.  And so far, legally speaking anyway, this case doesn't have any facts.

Handicapping the race....

It's not easy bein' green....

I made the mistake of first reading Charlie Pierce on this (well, not first first; I'd read a bit earlier about these appeals, so I wasn't surprised or dismayed the Supremes had taken them).  Better, as always, to go to Scotusblog and find out what's really going on.  Charlie tends to swing before the pitch is even thrown.


First:  there are three cases involved here:  Conestoga Wood Specialties Corp. v. Sebelius; Sebelius v. Hobby Lobby Stores, Inc.; and Autocam Corp. v. Sebelius.

Conestoga involved a RFRA claim and a 1st Amendment (free exercise) claim.  The appellate court rejected both claims:

General business corporations do not, separate and apart from the actions or belief systems of their individual owners or employees, exercise religion. They do not pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors.
....
Our conclusion that a for-profit, secular corporation cannot assert a claim under the Free Exercise Clause necessitates the conclusion that a for-profit, secular corporation cannot engage in the exercise of religion. Since Conestoga cannot exercise religion, it cannot assert a RFRA claim. We thus need not decide whether such a corporation is a "person" under the RFRA. 

The Hobby Lobby case is appealed by the government.   It also presents a RFRA claim on behalf of the corporation and two of the corporate owners (as in the Conestoga case, where individuals and the corporation both asserted a RFRA claim.  In Conestoga the court specifically held that the individuals had no RFRA claim through their ownership of the corporation).  The holding of the appellate court is really on the preliminary injunction which the district court denied; as a holding it is, as you will see, something of a mess:

As to jurisdictional matters, the court unanimously holds that Hobby Lobby and Mardel have Article III standing to sue and that the Anti-Injunction Act does not apply to this case. Three judges (Kelly, Tymkovich, and Gorsuch, JJ.) would also find that the Anti-Injunction Act is not jurisdictional and the government has forfeited reliance on this statute. These three judges would also hold that the Greens have standing to bring RFRA and Free Exercise claims and that a preliminary injunction should be granted on their RFRA claim. A fourth judge (Matheson, J.) would hold that the Greens have standing and would remand for further consideration of their request for a preliminary injunction on their RFRA claim.

Concerning the merits, a majority of five judges (Kelly, Hartz, Tymkovich, Gorsuch, and Bacharach, JJ.) holds that the district court erred in concluding Hobby Lobby and Mardel had not demonstrated a likelihood of success on their RFRA claim. Three judges (Briscoe, C.J., and Lucero and Matheson, JJ.) disagree and would affirm the district court on this question.

A majority of five judges (Kelly, Hartz, Tymkovich, Gorsuch, and Bacharach, JJ.) further holds that Hobby Lobby and Mardel satisfy the irreparable harm prong of the preliminary injunction standard. A four-judge plurality (Kelly, Hartz, Tymkovich, Gorsuch, JJ.) would resolve the other two preliminary injunction factors (balance of equities and public interest) in Hobby Lobby and Mardel's favor and remand with instructions to enter a preliminary injunction, but the court lacks a majority to do so. Instead, the court remands to the district court for further evaluation of the two remaining preliminary injunction factors.[fn1]

One judge (Matheson, J.) reaches the merits of the plaintiffs' constitutional claim under the Free Exercise Clause, concluding that it does not entitle the plaintiffs to preliminary injunctive relief.[fn2]

Accordingly, for the reasons set forth below and exercising jurisdiction under 28 U.S.C. § 1292(a)(1), we reverse the district court's denial of the plaintiffs' motion for a [*1122] preliminary injunction and remand with instructions [**4] that the district court address the remaining two preliminary injunction factors and then assess whether to grant or deny the plaintiffs' motion. 

What that all means is no majority of judges ruled on the substantive law of the case, although a plurality ruled that the injunction should be reviewed on different grounds than the trial court used.  It isn't, in other words, a holding that Hobby Lobby, or its owners, can use RFRA in this case, although the court wants to go that way.

Autocam also involves RFRA claims, for both the corporation and the individual owners.  The court remanded on the issue of individual RFRA claims through the corporation, directing the lower court to dismiss the individual claims.  The Court also rejects the claim that a corporation is a "person" under RFRA.

The connections between these cases is obvious, and most of them cite the others in their rulings.  The Hobby Lobby case stands as the outlier, where the Court indicates it is almost at a majority to give Hobby Lobby RFRA if not 1st Amendment protection.  Which explains why the government appealed the case.

How will the Supremes rule on this?  I dunno.  It could be the Court will, once again, in the name of judicial restraint, cast all restraint to the winds and rule however the hell a majority wants to.  They've pretty much been doing that since Bush v. Gore, and they've pegged the accelerator to the floor more recently, racing straight towards the cliff of stare decisis as if they were Thelma and Louise.  I recognize this.  I still think they had no business deciding Bush v. Gore, especially in a per curiam opinion (that was basically a summary "Because we can, that's why!" piece of reasoning) , and I've lost all confidence the Court will act as it should:  bound by precedent and the legal arguments set out in two of these three opinions (I don't even want to know how the plurality in Hobby Lobby thinks a corporation can have religious protections). 

But there is some conflict between the circuits revealed here:  two say RFRA (and the 1st Amendment, in Conestoga) have no application here; one  strongly implies that it certainly does.  The Court could have accepted these appeals so it could clearly settle the issues across three circuits where it is a live controversy (and thus direct the other circuits accordingly).

Or Pierce could be right, and they are (even the non-Catholics) ultramontane lunatics who want to purify our souls, corporate and individual, and protect our precious money from those dirty, dirty lady parts and how pregnant they can (or cannot) get with them.

But I kinda doubt it; at least until I hear what they say at oral argument.

The Anxiety Of Influence

NEW: A former anti-abortion leader says that the recent Supreme Court leak was *not* the only recent breach.

He obtained word of the 2014 Hobby Lobby ruling after years of using faith & favors to gain access to the Court, he says.

By me & Jo Becker https://t.co/g7iNpvOofz

— Jodi Kantor (@jodikantor) November 19, 2022

One of the many things that stood out to me in this stunning @Jo_Becker / @jodikantor piece is the length and depth of Justice Alito’s response.

It’s revealing to me both that he felt impelled to do it, and that there certainly appears to be evidence supporting Schenck’s claims. https://t.co/XP3M5f3y1R

— Steve Vladeck (@steve_vladeck) November 19, 2022

Alito and Thomas in a furious race to the bottom. https://t.co/NSpseqPDBF

— RSchooley@socel.net (@Rschooley) November 19, 2022

Here’s Schenk’s letter:

A letter to Chief Justice Roberts that the NYT has had for months accuses Justice Alito of leaking the outcome of the Hobby Lobby decision to anti-abortion donors who dined at his house. Contemporaneous emails corroborate the story; Alito denies it. https://t.co/KoA7q6XN5l pic.twitter.com/PgBzoTcWpW

— southpaw (@nycsouthpaw) November 19, 2022

To say this is a problem for the Court is an understatement:

This. The Hobby Lobby leak (by itself) isn’t the story. https://t.co/KrfWo2xZnw

— Steve Vladeck (@steve_vladeck) November 19, 2022

Takes two to tango; or be improperly influenced.

The @nytimes headline really buries the lede. ⁦@jodikantor⁩ & ⁦⁦@Jo_Becker⁩'s reporting reveals a highly coordinated effort to influence SCOTUS justices. THAT is the story. Also, why is this breaking on SATURDAY morning, @nytimes? https://t.co/kNECT5SXhD

— Melissa Murray (@ProfMMurray) November 19, 2022

Impeachment and removal are never going to happen. The only recourse is to increase the size of the Court in the next Biden administration. How many more KJB’s can we find?

I read this one segment three times before moving on. https://t.co/ygpbcsB2xf pic.twitter.com/diJBYkUrvL

— Sherrilyn Ifill (@SIfill_) November 19, 2022

Supreme Court accused of leaking 2014 anti-choice ruling to religious leaders weeks before it was made public: report https://t.co/RIcyARNpvO

— Raw Story (@RawStory) November 19, 2022

"Mr. Schenck said Mrs. Wright told him that the decision would be favorable to Hobby Lobby, and that Justice Alito had written the majority opinion. Three weeks later, that’s exactly what happened. The court ruled, in a 5-4 vote, that requiring family-owned corporations to pay for insurance covering contraception violated their religious freedoms," the report states with Alito issuing a statement saying that "he and his wife shared a 'casual and purely social relationship' with the Wrights, and did not dispute that the two couples ate together on June 3, 2014. But the justice said that the 'allegation that the Wrights were told the outcome of the decision in the Hobby Lobby case, or the authorship of the opinion of the Court, by me or my wife, is completely false.'"

Which would be credible, except:

"Schenck said he was told the outcome of the 2014 case weeks before it was announced. He used that information to prepare a public relations push, records show, and he said that at the last minute he tipped off the president of Hobby Lobby, the craft store chain owned by Christian evangelicals that was the winning party in the case."

Schenk got it from somebody.

Having nothing to say about Sebelius v. Hobby Lobby, I manage to say too much

I'm not as exercised by the oral arguments in the Hobby Lobby/Conestoga cases before the Supreme Court yesterday as most of the internet seems to be.  Predicting outcomes from oral arguments is a mug's game.  Scalia will have to distinguish these cases from Smith, especially after what Justice Kagan did to him yesterday.  Roberts can't really be expected to vote to allow something that pretty much obliterates the corporate veil, although I can see him coming up with some meaningless distinction between closely held corporations and public ones; but I don't really expect that (the 10th Cir. opinion rests in part on that distinction, but I don't think their opinion is all that persuasive overall, especially on the question of "person" under RFRA, and how a secular corporation can have sincere religious beliefs).  Scalia's argument in Smith is still too cogent for this set of facts, RFRA notwithstanding.  But basically, news reports that boil down 90 minutes of oral argument to a few quotes from each justice (except silent Clarence; maybe a lacuna should be included in each report to represent him) inevitably leaves out bits like the discussion of the Dictionary Act (whether or not a corporation is a "person" within the meaning of RFRA.)  Dahlia Lithwick gives the only account I've found of any reference in the arguments to this, but she doesn't linger on it, either.  That could be because justices didn't, but on such issues the Court could determine this entire case.  As Sotomayor asked in response to that reference:  "Who determines the corporate religion?  The majority of the shareholders?  The corporate officers?  Is it 51 percent?"

This question goes to the "closely held corporation" analysis I found at Volokh Conspiracy (which has the virtue of attempting to be a legal analysis rather than an  "OMIGAWD SCALIA!" and "What the hell is wrong with Kennedy?" analysis).

Still there are, as you might have expected, some problems.  I'm not sure this one actually is present before the Court, but we'll address it anyway:

The moral obligations of human beings, the argument goes — correctly, at that level of generality — do not stop when the legal fiction of the corporation intervenes. Corporate owners can’t say, “Hey, it wasn’t me who created these social harms, it was the corporation that I own.” The same, I think, applies when we analyze the religious burden on owners when a law prevents them from doing what they see as part of their religious social and moral responsibility.

Well, yes, but moral obligations and legal obligations are two distinctly different things.  The closest the law comes to imposing moral obligation is in cases of fraud or where equity applies.  Otherwise morality doesn't really enter into the legal analysis, at least not fundamentally.  And besides, corporate owners say all the time "Hey, you can't hold us accountable!  The corporation did it!"  After all, who paid the fines for the BP oil well blowout in the Gulf?  BP?  Or the executives and shareholders, personally?  Corporations create all manner of social harm which they either don't get held accountable for, or for which the corporation pays the fine.  The Occupy movement was the last attempt to shift that responsibility to actual persons; and most people still deride the "Occupiers" naiveté.

Now, to that question of the closely held corporation.  It's my understanding Hobby Lobby is owned by a trust which in turn is controlled by a family; so "closely held" pretty much applies here.

 The matter may also be more complicated when only a minority of shareholders believes that having the corporation obey a particular law causes them to violate their religious beliefs, though of course that problem arises not only for corporations but also for common-law partnerships. I’m inclined to say that the application of the law could indeed burden the minority shareholders’ religious views. (The majority shareholders’ voluntary decision to do the same thing, uncoerced by the law, would not constitute such a burden — the corporate bylaws or partnership agreement will likely constitute an agreement by the minority shareholders to let the majority shareholders take actions in the corporation’s or partnership’s interests.) But often, as in Hobby Lobby, the religious objections will be shared by all the shareholders in a closely held corporation, or at least by the majority shareholders.

But now we are back to Sotomayor's question, one based in no small part on the Smith decision that caused Congress to pass RFRA in the first place.  It is a question of sincerity of belief, and validity of belief.  Is the Hobby Lobby owners belief that Plan B and Ellas and IUD's are abortifacients valid?  Scientifically, no, it isn't valid at all.  All three forms of contraception work the way contraceptives they find acceptable work.  Neither induces an abortion by expelling an implanted fetus.  That the owners of Hobby Lobby believe otherwise is no more relevant than if they believe the earth is flat.  They are free to believe it, in other words, but they cannot use that belief as the basis for deciding they get a free pass on any law they don't like.

You'll notice in that analysis that "belief" has nothing to do with "religious belief."  Already we enter dark waters, because what is a "sincerely held religious belief"?  Is it accepting as true something you know isn't true?  Is it adherence to a traditional doctrine ascribed to by generations of believers across space and time?  Is it belief in the efficacy of "E-Meters"?  Which one do you want the courts to declare invalid, which valid, and why?  That you should be careful how you answer should be obvious to anyone.

So the courts do not answer these questions; that even attempting an answer would violate the 1st Amendment is clear.  It is, in fact, the refusal to answer this question that led Scalia to write the Smith decision, and which outraged Congress into passing RFRA.  We don't want this question answered; but we don't want this question ignored, either.  Congress determined that by refusing to answer it, the Court in Smith did in fact answer it; and Congress didn't like the answer.  And so now we have to decide if RFRA applies to corporations, and if so, which "sincere religious beliefs" are corporations entitled to?

At this point I'm reminded of the old joke Bill Moyers loves to tell:

One of my favorite stories is of the fellow who was about to jump off a bridge, when another fellow ran up to him crying, “Stop, stop, don’t do it.”

The man on the bridge looks down and asks, “Why not?”

“Well, there’s much to live for.”

“What for?”

“Well, your faith. Your religion.”

“Yes?”

“Are you religious?”

“Yes.”

“Me, too. Christian or Buddhist?”

“Christian.”

“Me, too. Are you Catholic or Protestant?”

“Protestant.”

“Me, too. Methodist, Baptist or Presbyterian?”

“Baptist.”

“Me, too. Are you Baptist Church of God or Baptist Church of the Savior?”

“Baptist Church of God.”

“Me, too. Are you Original Baptist Church of God or Reformed Baptist Church of God?”

“Reformed Baptist Church of God.”

“Me, too. Are you Reformed Baptist Church of God Reformation of 1879, or Reform Baptist Church of God Reformation of 1917?”

“1917.”

Whereupon, the second fellow turned red in the face and yelled, “Die, you heretic scum,” and pushed him off the bridge.

It's funny 'cause it's true.  Do we really want the courts entering into that arena?

 And even if the courts conclude otherwise, and say that the corporation cannot itself bring the religious exemption claim, the owners should be free to raise their own claims. If we see through the legal fiction of the corporation in concluding that corporations lack RFRA rights, then we should likewise see how obligations imposed on a closely-held corporation can oblige its owners to be complicit in what they see as sinful behavior.

The problem with this argument is that it doesn't get past the objections raised by Smith.  This argument means the employer can refuse to pay or hire employees who don't pledge to be teetotallers or fundamentalist Xians of the right denomination.  Because if requiring a corporation to provide certain coverage is an undue burden on the owners' religious beliefs, then so is forcing an employer to pay money to an employee who will spend that money in ways not in accordance with the owners' religious beliefs.  Employee provided insurance is compensation, not something provided by the employer as a gift.  It is earned as a matter of employment, just like payments to a 401(k) or just a paycheck.  If the owner is complicit in sinful  behavior by providing coverage for IUD's, he/she/they is/are equally complicit by hiring an employee in a store 50 states away who is an atheist or an alcoholic.

There are other issues here, issues I'm quite sure a corporate lawyer like Chief Justice Roberts is quite aware of.  If the religious opinions/beliefs of shareholders are attached to the corporation, then the corporation ceases to be a separate legal entity shielding the individual owners from direct liability for corporate actions:

As a a brief filed by corporate law scholars explains, “[t]he first principle of corporate law is that for-profit corporations are entities that possess legal interests and a legal identity of their own—one separate and distinct from their shareholders.”  In fact, as recounted in  the brief, this legal separateness is “the corporation’s most precious characteristic,” according to one early American treatise writer, because it creates “limited liability” for business founders and investors, shielding their personal assets.  If the Court were to accept attempts by Hobby Lobby and Conestoga Wood to blur the distinction between a corporation and its owners, it could  undermine key features of corporate law

That's a rather technical (sorry!) description of the "piercing the corporate veil" argument that's making the rounds.  Volokh's argument is that you can set aside that corporate distinction when it is convenient to the owners/shareholders.  The problem is, as Sotomayor and Kagan pointed out, to do so you also have to set the corporation distinctiveness aside when it isn't convenient.  That, or put the Court in the position of deciding who has legitimate and sincere religious beliefs, and who doesn't.  And to underline the importance of that distinction, and the weakness of Volokh's argument about the corporate entity:

But what about the individuals who own Hobby Lobby Stores and Conestoga Wood?  To be sure, the current owners of these companies have their own personal free exercise rights, but those rights are not implicated by the contraception coverage requirement because federal law does not require the individuals who own a company to  personally  provide health care coverage or to satisfy any other legal obligation of the corporation.  The law places requirements only on the corporate entities.  The individual corporate owners retain their rights under the First Amendment and RFRA, but those rights simply aren’t available when the claimed burden is placed on the corporation itself – just as Randy Braswell retained his personal right against self-incrimination, but could not use that right to shield his business when a subpoena was issued against the corporation he owned.  Individual business owners should not be given a green light to move freely between corporate and individual status to gain the advantages and avoid the disadvantages of the respective forms whenever it suits their purposes.

Funny how we keep coming back to the reasoning of the Smith opinion.  And that may or may not be a good thing.  According to Michael Dorf of the Cornell University School of Law, the Smith opinion may be ripe for reversal.  I didn't hear any indication of that in arguments yesterday, although to support the Hobby Lobby and Conestoga claims Smith has to be distinguished if not rejected (and overturned de facto if not de jure).  That would be a lot to pin on this case:  rejecting Smith, upholding completely RFRA, and deciding the Court should plunge wholesale into the balancing not just of legitimate government interests against legitimate individual interests, but the sincerity and validity of religious beliefs as proclaimed by the owners of a legal entity, and how and when those beliefs get to trump the laws.  Dorf doesn't address that issue, or how the courts would "balance" the issue of whose religious beliefs get to be declared "legitimate" as well as "sincere" (will the courts recognize Pastafarians?  And why not?).  I just don't think the Court is looking to make legal history on this set of facts or legal arguments.

But, of course, I could be wrong.

"....makes the world go around...."

Last in a series, I promise; at this point I'm just cleaning off the desk, so to speak.

I'm still ruminating on this, but it strikes me that the issue here (in Burwell) is the question of agency*:  at what point is my money no longer "my money," and the use of it no longer under my control, or even my responsibility?

An employer provides insurance as an employment benefit, which means it is no different than the agreed upon salary the employee accepts to do the job.  By offering insurance, the employer agrees to pay for that insurance as a part of the employee's compensation, just as the employer agrees to pay a wage on a set schedule.  Indeed, in Texas, if an employer does not pay on the agreed schedule that employer is in violation of state law.  The property interest of the employee in at least their wages is protected by law.  And, of course, the use of those wages by the employee (provided the use is legal) is left entirely to the employee.

The government says that the insurance policy so provided cannot be worthless, that it must make certain basic provisions.  It does not dictate the size of the deductible, for example, but it does dictate what will be covered so all have basic medical care available to them.  Of course, given the expense of healthcare it could legitimately be a moral issue as to whether an insurance deductible is fair, or not (because a high deductible can still effectively exclude you from some healthcare.  I just bought some relatively inexpensive drugs which, were it not for the program at my pharmacy reducing the cost to $20.00, would have cost me $140.00.  I have a deductible I never reach because aside from two minor chronic health issues controlled by generic drugs, I don't spend enough on healthcare in any one year.  If not for that pharmacy program, I might find my healthcare far more expensive, and if I were a bit poorer....)

Now comes Hobby Lobby, which objects that the insurance policy it buys means the insurance company must provide coverage for contraceptive care to the insured.  The money leaves Hobby Lobby, goes to the insurance company, and MAY be used to buy contraceptives (it doesn't have to be, of course), and Hobby Lobby says that's a violation of its religious feelings.

Okay, the money leaves the employers hands and goes directly to the employee, who uses it to buy alcohol, which may also be a violation of the employer's religious feelings.  Or, more to the point, the employee MAY buy alcohol with that money.  In either case we tell the employer:  tough.  It's no longer your money.

Why is it still the employer's money when it gets to the insurance company?**

*Not that the majority opinion wanted to address that issue in any way, shape, or form.  They clearly and tacitly left all questions of agency in the hands of the corporate owners, and allowed for no autonomy of the employees, who can make their own decisions about whether or not to use contraceptives.  The Court might as well have complained that Hobby Lobby exists in a world where contraceptives are available and where employees might purchase such things with the money Hobby Lobby "gives" them (because compensation belongs to the employer even after it is earned, in the logic of the majority opinion).

**The answer is:  because this case is not about contraceptives or religious beliefs, or even about money.  It is about opposition to the ACA.  If there is a moral issue with contraceptives, there isn't a valid legal one:

Today's opinion reflects not a principled judgment about the meaning of RFRA but the Republican majority's policy opposition to the ACA, and its failure to take the rights and interests of the women employees affected by its decision seriously. That these justices may not apply the same logic when the mandate is for something other than contraception isn't much of a defense of their holding.  

And that it isn't about "religious beliefs" is clear from the special privilege religious beliefs held by the owners of closely-held corporations suddenly get at law, a privilege offered to no other group in America:

I agree that on the question of whether there is any conflict between religious practice and a statute, the courts should be deferential to an individual’s characterization of their beliefs. The legal standard, however, is not whether there is “any” conflict. It’s whether there is a substantial conflict. Courts do not have to be deferential on this question, and indeed since the finding of a substantial burden triggers the rare use of heightened scrutiny they can’t be deferential.  And for the reasons Edwards explains, this is pretty much the definition of a de minimis burden: the Gilardis are not required to use contraception, required to promote the use of contraception, or denied the right to publicly oppose the use of contraception. Being required to offer insurance plans that cover contraception may constitute a burden, but it’s not the “substantial” one Sherbert requires. In Sherbert and Yoder, there was a clear, direct burden involved, not an incidental one.

The idea that an irrefutable bare assertion of conflict with religious belief, no matter how trivial, is sufficient to make any state action subject to strict scrutiny is absurd. It’s an obviously unworkable standard, it’s not what the Court said in Sherbert, and it’s not the policy enacted by Congress, which also requires a “substantial” burden. The backdoor attempt to subject all regulations to strict scrutiny does, however, show what’s going on here: this case is about opposition to the ACA, not religious freedom.

Riffin' on RFRA....(sorry)

Because, really, nothing else works here....

I was gonna put this in a comment, but it got too hard to read what I was saying in that tiny box.  So I'm moving it up here.

First, I'm responding (more or less) to Rick's comment.  I'm not arguing with it, mind; just using it to gather my own thoughts.  So here's Rick's comment first:

This is an issue that I've always been somewhat interested in because of my old involvement in a Peyote religion case. In my one trip to the Fifth Circuit they reversed the dismissal of my case on the basis that genuine religious conviction may, in the right circumstances, require even the setting aside of criminal drug laws.

Mr. Justice Scalia, in the Smith case, blew that old understanding of religious freedom out of the water, in an opinion so outrageous that Republicans and Democrats, in a rare show of near-unity, reinstated, by statute, the old standard in the Religious Freedom Restoration Act.

It now looks like Scalia has won the "progressives," and the Republicans seem not far behind. There are differences between the federal statute and the state "me-too's," but I don't see them as terribly material. The prospect of boycotting Indiana for passing a law substantially similar to current governing federal law--a law which essentially states the principle of religious liberty as I learned it at law school from Archibald Cox--compels me to repeat one of your favorite phrases: "I'll retire to Bedlam."

And of course corporations have religion; and we all know what they worship.

I'm gonna exercise some very old mental muscles and see if I can parse out Smith from Hobby Lobby (the connection being RFRA):

Pre-Smith cases rejected 1st Amendment protection for discrimination (NTodd has the links) pretty much on the basis of "compelling state interest" (I haven't read into the cases linked, but I remember the cases on racial covenants in deeds, from ConLaw.  And yes, that was many, many years ago.).

Smith was not a discrimination case (which the law generally does not allow, although it allows religious institutions to discriminate in who can be a clergy, for example), but a question of banned substances.  Well, that's not the legal distinction, but as I say, the muscles are weak.  Anyway, a question of what the law forbids, and should it be allowed under circumstances involving religious belief/practice.

And 6-3, the Court said:  "No."

Then comes RFRA, which came under scrutiny in the Boerne case, where the Court found that RFRA appeared to create a substantive change in constitutional protections, exceeding rulings of the Court on the 14th Amendment(the 14th because the 1st applies to states only through the 14th, and the case was brought under RFRA against a state agency, i.e., a city of Texas.)  So RFRA, in brief, went too far.

And that's where things get very complicated.  Boerne led to RLUIPA, a law for religious owners of land (I ain't goin' further there), an amendment to RFRA in 2003 which applied it only to the Federal government; and a law for peyote smoking Indians:  the Religious Freedom Act Amendments in 1994.  But RFRA still exists, and now the question is:  how did Hobby Lobby v. Burwell lead to the Indiana version of RFRA?

States passed their own versions of the law, which is a bit odd, since they didn't really need to.  I mean, it sounds like a protection of peyote smoking Native Americans and churches that want a building permit.  But the former involves federal law on controlled substances, and the latter involves state law which RLUIPA is meant to deal with.  I have an interest (I find) in RLUIPA because I'm familiar with the church involved in a RLUIPA case.

St. John's UCC was a very old church located near what became O'Hare Airport.  O'Hare expanded and took over the property of the church, removing the old building to a new location in Bensenville, IL, the city next to O'Hare (I used to live there).  What was left behind was the church cemetery which, I was told, Chicago promised to preserve in perpetuity.  Well, as long as grass grows and rivers run, as we once promised the natives here.

Then O'Hare wanted to extend some runways, and the graves were in the way.  At that point we get into legal arguments about eminent domain v. land use regulations, and which laws RLUIPA covers.  St. John's lost the case, and their graveyard; and while there is a contention that RLUIPA grants religious organizations special privileges not available to other landowners, a case making that point has yet to make it to the Supreme Court.  Sadly, all the St. John's case proves is that a group of old white people (dear people, I knew them well) can't fight Chicago; especially when they don't even live in Chicago.

The meek shall inherit the earth, but only after the not-meek are through with it, I guess.

Still not sure how this gets us to Hobby Lobby, but somehow the Court decided that RFRA gives closely-held corporations the same protections for religious practice as are allowed to individuals.  As I said before, the answer there is to refine the definition of "person" in that statute.  Does Hobby Lobby somehow allow Indiana's clearly anti-gay version of RFRA?

No.  Well, IMHLO, anyway.

It doesn't because religious practice doesn't allow an individual to discriminate against another individual in business, at least.  We settled that issue with the Civil Rights Act cases.*  Churches can't be compelled to sanction same-sex marriages, but individuals can't be allowed to refuse service based on race, creed, national origin, or sexual preference.  Well, at least not where there is a statute protecting sexual preference as we protect race, creed, national origin, or gender.  These are not constitutional matters but statutory ones.  Discrimination is barred by statutory law, not by constitutional jurisprudence.  Banning discrimination is a compelling state interest, which means it is generally upheld by the courts.  So Indiana's RFRA is bad law that may yet come to a swift end.

The State is at least going to have trouble defending discrimination against homosexuals as a compelling state interest.  Because, to put it bluntly, if your rights stop at the end of my nose, this language seems to push my nose to somewhere in the back of my head:

“A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.”

Per Hobby Lobby, the courts cannot examine the legitimacy of a religious exercise claim, which gives the person under this law the freedom to make almost any religious claim they like.  That's going to run into limitations already recognized by law, or already existent in statutes; but it's also going to create a great deal of mischief where "religious freedom" is going to be used as cover for small-mindedness and sheer bigotry.

And if that's a return to the state of the law as Archibald Cox taught it, then the law is a ass.

* Undoubtedly defendant Bessinger has a constitutional right to espouse the religious beliefs of his own choosing, however, he does not have the absolute right to exercise and practice such beliefs in utter disregard of the clear constitutional rights of other citizens. This court refuses to lend credence or support to his position that he has a constitutional right to refuse to serve members of the Negro race in his business establishments upon the ground that to do so would violate his sacred religious beliefs.

Newman v. Piggie Park Enterprises, Inc. 

Addendum:  turns out there's a bit more to this, so let me revise and extend my remarks:

“This Indiana law, unlike federal RFRA, codifies the notion that for-profit corporations may avail themselves of the religious freedom rights formerly only accorded to individuals and religious non-profits,” Rachel Laser, the group’s deputy director, said in a statement. “In fact, it goes even further than the Hobby Lobby decision because it extends this right beyond closely held corporations to all corporations.”

The statement comes from the Religious Action Center of Reform Judaism (via Religion Dispatches).  It makes my closing remark about Archibald Cox look glib (it was), because clearly this RFRA is not a return to the state of the law before Smith; this is an extension of the law after Hobby Lobby.  Which law never was, IMHO, very sound.

ONE LAST THING which makes my first conclusion extremely glib and frankly unsound:

When we talk about RFRA, we aren't talking about the law in Indiana:

Although the Supreme Court has held that the federal religious liberty law applies to some corporations, the statute itself applies only to people—and, as Justice Ruth Bader Ginsburg pointed out in dissent, extending it to for-profit companies strains the meaning of the text. There’s no such issue with the Indiana law, though: This measure was designed to apply to businesses, like florists who dislike gay people, as a straightforward reading of its text makes clear.

But it’s really the next provision that gives the Indiana law its startling and unique breadth. The federal religious freedom law was designed to protect individuals from government overreach, like a state law barring ritual drug use by American Indians. Indiana’s law, on the other hand, lets people (and businesses) cite their religious freedom as a defense in private lawsuits, even when they’re accused of violating a civil rights law. In practice, that means a baker who is required by a nondiscrimination ordinance to serve all customers may cite her religious opposition to homosexuality in order to refuse service to a gay couple. Here, then, is the true license to discriminate: A secular baker is still bound by the law; a Christian baker has a special religious right to kick out customers she dislikes due to her religion.

Which means, I think, the courts either have to allow discrimination of any kind under Indiana law; or it has to throw this law out wholesale, since it is unenforceable as written, because it so blatantly conflicts with so much settled law.

It certainly isn't the state of the law when Archibald Cox taught it, that's for sure. 

What rough, rude beast....

It's seems pertinent to just ask again....

I blame Hobby Lobby.

My parents were raised in Christian churches.  They got married in my aunt's living room.  As best I understand, this was quite a common practice.  The elaborate church wedding inspired by British royalty in the 20th century took a while to catch on.*

When I was a practicing pastor, I regularly performed wedding ceremonies for people who wanted a "church wedding," but who were not members of my church, nor particularly Christian.  So it wasn't particularly a religious function for them; they just liked the setting.

I've also attended weddings at churches where the participants weren't members, but the sanctuary/chapel/what have you, provided a nice backdrop for the photographs.

Protestants don't even consider marriage a religious ceremony; not officially, anyway.  My wedding was in a church, but that wasn't because I thought I wouldn't be married if the preacher didn't officiate in a building designated a "church."  (Which is another thing.  The Book of Common Prayer has an appendix volume for unusual services, which includes one for blessing, or deconsecrating, a worship space.  I know of no parallel to this in any other Protestant tradition.  It raises the question of whether the marriage must be conducted in a consecrated space, except really, it doesn't.  This whole argument isn't really about religion or marriage; it's about change, and how we have to adapt to it  The "holiness" of the service isn't even at issue; it's the fact that the state, which truly controls marriage in America, is making it possible. Yet there is no basis to claim that fact violates one's free exercise of religion.)  By the time I married, weddings in a church were the common practice.  We did it because that's what you did, not because the space or the pastor made it more acceptable to God.

There is a lot of concern now about "gay marriage," and the ability to object to it.  Legally, of course, it's a public accommodation argument:  you can't open your business to the public and then refuse to serve certain classes of people.  Well, you can refuse to serve LGBT persons, because there is no federal law (and few state laws) that prohibit discrimination against them.  But the objection now is settling on marriage, and whether or not you can be "forced" to participate in them.

And "participate" here is part of the skewed reasoning of Hobby Lobby v. Burwell, where providing insurance for one's employees as a benefit of their employment (literally as part of their compensation for their labor) is somehow a burden on the employer if it involves coverage of drugs or treatments the employer claims a moral/religious objection to.  Then again, as a society we've never allowed that argument to prevail in cases of discrimination, so even after Loving v. Virginia and now Hobby Lobby v. Burwell, no baker is demanding a right to refuse to cater a mixed race wedding.

Mostly because you wouldn't get very far with that argument in court, or in the court of public opinion. It was tried when the Civil Rights Act was passed.  In Newman v. Piggie Park Enterprises, Inc., the defendant claimed: "that the [Civil Rights] Act [of 1964] violates his freedom of religion under the First Amendment 'since his religious beliefs compel him to oppose any integration of the races whatever.' "   The court was not too impressed with that argument, and how you could distinguish it now on the basis of a Hobby Lobby v. Burwell claim of freedom from government imposition under the 1st Amendment is a bit beyond me.  I suppose you could make the libertarian argument that "the market" would work against such a position of discrimination, but I'm not sure it was "the market" that harassed Memories Pizza into taking a hiatus (or that raised a reported $800,000 in support of its owners.  You really have to stretch the idea of "the market" pretty far to hail that as a libertarian success story, on either side.).

This imbroglio will probably soon blow away.  If the Supreme Court decides there is no rational basis for disallowing same sex marriages, they will be as protected as mixed race marriages, and at that point I don't think RFRA laws in Indiana or Arkansas will be much protection to bakers and florists, if only because of the social pressure (an amendment to the Civil Rights Act of 1964 is still advisable, because a Supreme Court decision might still not make sexual orientation a protected class).  As I say, no one would think today to refuse to cater, say, a Protestant/Catholic wedding, or a Jewish/Gentile wedding.  It won't be such a large step to adding that for same sex marriages, in practice if not soon in law.

Eventually this, too, will fade; not as soon as the bad reasoning in Hobby Lobby v. Burwell, but soon enough.

*Of course the British monarch is the head of the church, so it is right and proper members of the royal family are wed in a church.  But it underlines the reason Protestants in this country wanted to keep church and state and weddings as separate as possible; because weddings were not essential to Christian practice, and were largely a matter of property rights (for the state) and social order for the community.

I still blame Hobby Lobby

I suppose I'm establishing something of a brief against the reasoning in the Hobby Lobby decision (and, by extension, the Supreme Court in general).  I can't quite make the leap from a government mandate (providing health insurance for employees) to a violation of one's religious principles as a closely-held corporation.  Can I cite Job ("Man is born to suffer as surely as sparks shoot") to defy government regulations that require I provide a safe workplace, or to allow women to work when they should be in their "time of confinement"? (Look it up, it's not worth it to me).  

At least both of those positions are tied to particular scripture.  I still can't find the scripture that says "Thou shalt not participate in a same-sex marriage, even unto letting your business sell the groom's cake!"  I do remember quite a few passages about "Who is this, that he consorts with prostitutes and tax collectors and wine-bibbers" (the latter seemed to be in the Baptist translation; or maybe it's just my bad memory).

I'm pretty sure I know who that was.....

Anyway, the reasoning in Hobby Lobby is dumb, and it's making us all dumber.  Lights, however, continue to be lit:

First, “bigotry” is not holding a belief, but denying someone else’s dignity as a result of that belief. For example, Christians for centuries believed that the Jews rejected Christ and should be punished. That belief, in itself, is not bigotry. But centuries of pogroms certainly is.

In the contemporary context, no one is saying a belief is bigotry. What is bigotry is opening a business and then denying some people service on the basis of their identities.

Second, as members of a minority religion, American Jews have long enjoyed constitutional protection from the Christian majority, which has sought to compel Jews to say Christian prayers, yield to Christian holy symbols in civic spaces, and conform to all sorts of Christian religious practices. To twist the meaning of “religious liberty,” from a shield against co-option of government by the majority religion, into a sword against minorities, would undo such protections.

What these writers are calling “religious liberty” is really Christian hegemony.

Hobby Lobby didn't really open this door, and as much as some will thrust against, it will never be opened.  But the efforts to redefine bigotry and discrimination are as ugly as they were in my childhood.  I had really imagined, at one point a few years ago, that we were finally beyond this.  Now I'm not sure we will ever be.

Niebuhr was right; and nothing from beyond us is going to save us from ourselves.  We can be saved, but we have to engage in the salvation, or nothing happens that is worth happening.*

*To which conversation I would add this post at Religion Dispatches.  My first thought was a line Dom Crossan concocted, trying to reconstruct what he thought was a more original version of the sayings of Jesus (a notable effort, but not one to be taken as scripture; more of a palate cleanser, really, a way of removing layers of varnish and dirt to restore the original):  "When you start a fire," he "quotes" Jesus of Nazareth, "You want it to burn."  It's his version of Luke 12:49.

Odd the Bishops are just now figuring that out.  And they call for calm even as they take up the vocabulary of "bigotry" and "discrimination" and claim themselves victims.  Now the piper wants to be paid for playing the music they danced to.  Now the fire wants to burn.

The Chief Justice is not amused....

I know Scalia is supposed to be the Court scold, but I think Roberts is just trolling us all here:

Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for religious practice. The majority’s decision imposing same-sex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. The First amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.

Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage – when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.”

For one thing, Rick Scarbrough and Ken Paxton and Greg Abbott need to take three deep breaths:  the reference to the candid acknowledgement of the Solicitor General was to whether an institution like Bob Jones University could lose its tax exempt status.  It was not a reference to taking away the tax exempt status of the Roman Catholic Church or the Southern Baptist Convention, either wholesale or one congregation at a time.

But the almost dog-whistle code in the Chief Justice's comment (or am I just hearing things because of the reaction in Texas?) is to Hobby Lobby v. Burwell, especially about the "exercise" of religion.  Because while the rest of us have always held with the doctrine that your freedom stops at the end of my nose (although threatening gestures can be an assault, or just knocking a tray with a plate of food out of someone's hand, which is a long way from the end of one's nose; so the aphorism is, like most, more apophatic than true), the Supreme Court dissent (and others) seem to think Hobby Lobby weighed in on the side of "exercising" religion against someone else.  In matters of religion, the Chief Justice seems to imply, you don't have a nose at all; at least, not one the Court need consider.

Which is pretty much what Hobby Lobby said; even if Kennedy didn't mean it that way.  It's not just Scalia who gets his opinions used against him, you see.  And it is more and more clear that we once had giants on the Supreme Court; and now we have minions and middle-brow thinkers.

Pity us.

But people of faith are not free to discriminate against mixed-race marriages in college campus housing, and haven't been since 1967, if not since 1964.  The arguments now really aren't any different than they were then.  So, again, I fail to see the relevance of the argument here; except for the handle Hobby Lobby v. Burwell gives to a club that is sure to soon be wielded; and at that point someone will have to learn the difference between a Constitutional right, and one granted by statute.

And then we'll see if the Supreme Court really understands what it did yesterday.

Don’t Say It Out Loud!

Republican John Cornyn complains that the Court's Obergefell decision conflicts with the sincere beliefs of some religious people. Judge Jackson: "That is the nature of a right."

— Kyle Griffin (@kylegriffin1) March 22, 2022

First, let me say Elie Mystal is right:

The argument that Cornyn is making here is THE SAME ONE conservatives used to make against interracial marriage. It's copy pasta from those days. People like Cornyn didn't like it then and don't like it now.

— Elie Mystal (@ElieNYC) March 22, 2022

See.. and Jackson says that SCOTUS justices are bound by precedent but then Cornyn DISAGREES and says "Thank God" Plessy was overturned.

So... which IS IT @JohnCornyn, do you want SCOTUS justices BOUND or NOT???

— Elie Mystal (@ElieNYC) March 22, 2022

SDP is a matter of precedent, you see. As Mr. Mystal says, unravel that, you unravel pretty much the entire legal framework we call know and count on. Be careful what you wish for.

Cornyn is bringing Obergefell back to Hobby Lobby, which effectively (not a legal/law review analysis, mind you) said the "sincere beliefs of some religious people" can trump other rights.  Or, to put it more plainly, all religious beliefs are equal under the law, but some religious beliefs are more equal than others.

Which I still contend IS the holding of Hobby Lobby. It's a bad holding.

Judge Jackson is right:  it is the nature of a legally recognized right to conflict with the sincere beliefs of some religious people.  It is not the place of the law (English common law, statutory law, constitutional law, what have you) to determine the authority of sincere religious beliefs.  I don't think the beliefs of the owners of Hobby Lobby have any authority over my sincere religious beliefs, which are not theirs.  If I was an employee of Hobby Lobby, the Supreme Court says the owners' sincere religious beliefs would override my sincere religious beliefs because their First Amendment is bigger than mine, or contract law, or employment law, or something.  But it is the nature of a right to apply to all people equally, and to conflict with the sincere religious beliefs of some people; such as those people who sincerely believe blacks bear the "Mark of Cain" or are children of a lesser god, or exist to serve the white people, who are God's chosen. Or that women shouldn’t get abortions because icky and/or “whores.”  How "sincere" and/or "religious" it has to be is not even a close question because, well, unless we're talking about peyote usage, we don't want to draw too clear a distinction between what is a "religious belief" and what's either illegal (use of controlled substances) or just crackpot (e.g., white supremacy).  Because pretty soon then we are clearly deciding your religious beliefs are crazy, and mine are sincere, and so yours don't count.  Better we do that sotto voce, eh?

Like racism, it's so ugly to say it out loud.

Sons of Hobby Lobby

The governor of Georgia vetoes a "religious freedom" bill which would have allowed pastors in Georgia to refuse to do same-sex marriages, and allowed other "believers" to discriminate against people based on religious beliefs.

Which apparently is okay if it means you can tell a gay couple to get out of your bakery, but probably wouldn't be so good if Muslims decided you were an infidel, or Jews decided you were Gentile and they couldn't take your filthy lucre.  No, I don't expect such things to happen, but why couldn't I discriminate against a Jew or a Muslim as a Christian in Georgia?*

Oh, yeah, the Civil Rights Act is why.  But at least I could discriminate against gays and lesbians and transgendered persons, and that's what religious belief is all about, right?

According to the Hobby Lobby decision, it is.  That's the Supreme Court ruling that unlocked this Pandora's Box which North Carolina has gleefully knocked the top off of, while Georgia has decided maybe that's not such a good idea.  And still the Supreme Court dithers.

The Court has taken the unusual step of acting like a legislative body:  they want more facts about insurance policies and what they cover before they can rule in Zubik v. Burwell.  Some see this as a sign Chief Justice Roberts or maybe Justice Kennedy want to rule in favor of the government, and need a fig leaf to cover them.  I wonder, however, if it isn't the male justices trying one last time to find evidence to support their fantasy about insurance and lady parts and delicate religious fee-fees.**

The only comfort I would draw from this discussion if it were happening in a legislative setting is that at least those involved were elected officials who could be removed from office in the next election.  True, incumbency is practically a life-time appointment, but it ain't necessarily so.  Being on the Supreme Court, as Justice Scalia just showed us, is forever.  Forever is turning into a very long time, indeed.

Ever since Hobby Lobby it has been open season on how far religious believers can go in extending their religious beliefs beyond the end of someone else's nose.  Now it is an offense to their delicate sensibilities (but never to God, interestingly enough) to not be able to discriminate against gay couples.  Of course, Georgia doesn't have a law banning discrimination on the basis of sexual preference, so Georgia bakers and dress makers and flower arrangers are free to say "NO!" to any couple they want to refuse, and pastors across the country, even in states with anti-discrimination laws, are free to refuse to conduct weddings.

Not because God tells them they must do so; but because they are delicate flowers who should not be forced to live in a world that includes people not just like them.  That's really what the argument is now.  It isn't religious at all:  it's selfish.

And if that doesn't go against the teachings of Christianity (and all these cases and laws are clearly aimed at "protecting" Christians first, not Muslims or Jews or Buddhists or Hindus, or what have you), then I don't know what does.

*Or, apparently, if I run Hobby Lobby.

**Just because it makes me look smart, I have to note that Dahlia Lithwick agrees with me:

Then, later in the day, the court handed down a truly baffling order in last week’s Zubik v. Burwell contraception mandate case asking the parties for further briefing. The order is one of the strangest things I have ever read. It demands the two parties comment on an imaginary workaround that would allow religious objectors to the Affordable Care Act’s contraception mandate to notify their insurers that they object to providing birth control, but in an even more subtle fashion than the workaround already given them. One can almost hear Anthony Kennedy hollering between the lines: “Give me a legislative FIX, stat,” through all the legalese.

Enjoying the day of Jubilee

I was in the car much of the day yesterday (road trip for peaches; it's a long story) and had to listen for almost an hour before I could confirm the Supreme Court's ruling yesterday; then I spent the rest of the day hearing more and more and more about it.

The funniest part was when Texas AG Ken Paxton told county clerks across Texas (all 256 of them, or so) not to issue any marriage licenses to same-sex couples except on his directive.  On Friday morning, after the opinion was announced, county clerks across Texas reminded Paxton "You're not the boss of me."  The Travis County clerk (Austin), said both that the AG had lots of lawyers, and he had lots of lawyers, and his lawyers could read the Kennedy opinion as well as the AG's lawyers could.  He also pointed out an AG opinion is not binding on a state agency in the face of a court ruling.

By late afternoon Travis County had issued 80 licenses, and was going to take anybody still in line at 6:00 p.m.

Harris County had originally said they'd wait; but they didn't.  Neither did Dallas County or Bexar County (San Antonio).  At this point I'd guess the clerks who didn't issue licenses weren't asked to.

"To be clear — the law in the state of Texas is that marriage is one man and one woman, and the position of this office is that the United States Constitution clearly does not speak to any right to marriage other than one man and one woman and that the First Amendment clearly protects religious liberty and the right to believe in traditional marriage without facing discrimination," Paxton wrote.

But I don't think anybody in Texas is paying attention.  That reference to the First Amendment is Paxton's real point:  he wants to go Hobby Lobby on this decision, and overrule it with RFRA*:

“Our guiding principle should be to protect people who want to live, work and raise their families in accordance with their religious faith. We should ensure that people and businesses are not discriminated against by state and local governments based on a person’s religious beliefs, including discrimination against people of faith in the distribution of grants, licenses, certification or accreditation; we should prevent harassing lawsuits against people of faith, their businesses and religious organizations; we should protect non-profits and churches from state and local taxes if the federal government penalizes them by removing their 501(c)(3) status; and we should protect religious adoption and foster care organizations and the children and families they serve. Shortly, my office will be addressing questions about the religious liberties of clerks of court and justices of the peace.

“Displays of hate and intolerance against people of faith should be denounced by all people of good will and spark concern among anyone who believes in religious liberty and freedom for all.

Although that last statement puts us through the looking glass, and into the land of Rick Scarborough (no, not that one; this one is a nutcase from Nacogdoches, Texas).  I heard him on NPR yesterday, and wept for the infamy he is bringing to a small town that deserves better.

Actually what I heard was a man who desperately wants to be arrested.  When asked the perfectly reasonable question about what he would do to engage in "civil disobedience" against this ruling, he said he'd do what he'd been doing:  preach against homosexuals as sinners.  Following this ruling he now expects the full force of the law to descend upon him for such opinions, and his church (and those pastors who agree with him) to lose their tax exempt status.

They want, in other words, to be that important.

It's sadly misguided, actually; and I feel sorry for him.  His legal analysis is equal parts paranoia and ignorance.  Even the Civil Rights Act of 1964 doesn't penalize discrimination with criminal charges, unless there is an underlying crime that can be linked to the discrimination.  Sermons against homosexuals are not criminal acts, and the Supreme Court did not just make them so.  Churches that choose not to conduct same sex marriages will suffer no more penalty than churches that decline to conduct marriages of people who are not members of that church.  But oh, Rick Scarborough wishes they would.

The irony here is that, in Texas, Mr. Scarborough is quite free to discriminate against gays and lesbians.  Any business in Nacogdoches, upon learning an employee has just married her same-sex partner (and in a small town like Nacogdoches, how could you hide that?), would be entirely free to fire said employee.  Is that oppressing someone's religious beliefs?  I think it is wrong, but to say a law banning such decisions traduces one's religious principles is to turn the Hobby Lobby decision into a club.

Wait; it is already.  On this the Supremes have made their bed; let them lie down in it.

That's where the fight is going, anyway:  RFRA and Hobby Lobby, and a perversion of the 1st Amendment it is going to be, too.  The Supremes will either have to accept this expansion of that bad decision, or immediately start whittling away at it.  Either way, bad decisions make bad law, and that will keep the courts busy for decades.

Jeffrey Toobin thinks this, too, shall pass:

We should be clear about the “liberty” interest being asserted here. Abbott, Jindal, and their allies are positing a right to discriminate—for local officials to refuse to conduct same-sex weddings, for photographers and bakers to refuse to do business with gay people, for wedding planners to advertise that no gay couples need apply. Their actions are the linear descendants of the Virginia officials who claimed divine guidance for their prohibition on interracial marriage. The First Amendment allows individuals to believe anything they want, but it does not allow them to use their beliefs as a license to discriminate in ways that would otherwise be limited by law. No one, at this late date, would claim a religious inspiration for a florist to refuse to sell flowers to an interracial wedding or for a magistrate to perform one; they should not have the right to refuse to do business for a same-sex wedding, either.**

And Scarbrough clearly thinks state laws barring discrimination against sexual preference means the jackbooted thugs will be smashing down his door any day.  But the legal argument is going to be on Hobby Lobby and RFRA, and it's not going to be fun to watch, nor is it going to be so obviously cast in terms of white people screaming at little black girls surrounded by soldiers as she enters a school building.

That's the right image to evoke, but we won't get off that easily.  In the meantime we should follow the advice of the Chief Justice, and celebrate.  President Obama is right:  today our union is made just a little more perfect.  And really, the Greg Abbotts and Ken Paxtons and Rick Scarbroughs are not gonna take that away from us.

*Or, on sounder legal footing, with the 1st Amendment.  But really, the legal argument here comes from Hobby Lobby v. Burwell, and that argument is based on RFRA.

**This is part of what Toobin is referring to.  And he's right:  these objections are exactly equal to the objections to Loving v. Virginia.  I haven't been as ashamed of Texas since Kennedy was killed here.  At the very local level, it's likely to get very ugly.

Congratulations, you closely held corporations! The Kingdom of Heaven is yours, too!

God's domain belongs to the closely-held corporation! And it can treat you the way it wants!

There is some concern, well-placed I'm afraid, that Burwell v Hobby Lobby has erased the distinction between churches and for-profit corporations.  I'm not sure where that leads us legally, but it confirms a trend socially that I've noticed since my first church.

Fresh out of seminary and anxious for a placement, I interviewed with and accepted a call to a church which included a discussion I only later realized was an offer to "hire" me (rather than "call," which implies a wholly different relationship) on a commission basis.  It wasn't subtle or hidden; I just didn't want to pay attention at the time.  A member of the search committee made the offer:  I could draw a small salary, and increase it as I increased the membership of the church.  He made it as an offer in my best interest, an incentive for me to draw more members to the church, to put seats in the pews, to increase the income of the congregation, in short.  He was quite explicit on the point:  as I drew more paying members to the church, I could increase my salary based on the increased church income.  I could draw directly from the income brought by those new members, to feather my nest; he wouldn't mind a bit.

No one else at that interview disagreed with his offer.

To understand how appalling that is, you have to understand that pastors are called to pulpits.  They are called as servants of God, and absent an episcopalian structure (bishops who assign priests/pastors to pulpits), the arrangement is between the pastor and the congregation (this is the norm for congregational polities like Baptists and the UCC, or for presbyterial polities like the Presbyterian church.)  The pastor comes to be a servant to the congregation, but also to be a representative of the larger church (a distinction usually clearer in episcopalian polities, but not necessarily all that clear).  The pastor is not "hired" by the church to do a "job," such as increase membership.  That is a job a club might hire someone for, or any business; but a church is not a business, and is not supposed to act like one.

In my experience, a lot of lay people don't understand that distinction anymore.  The minister is an employee, the job of the minister is to draw the crowds like Joel Osteen does, and the business of the church is to put as many paying butts in the pews as possible, provided only that the newcomers all get along with "us."  Did Burwell add fuel to that fire?  Inadvertently, yes.  Is the Supreme Court influenced by this "business" attitude? Well, one would think not, as the majority of the court is Roman Catholic, and Alito is Catholic.  But then I've seen a clergy cast out of his church to serve the business interests of very wealthy people (I can't say much particular about it) by the authority who is supposed to protect him, and had the same experience myself.  That churches are run like businesses, and that there are certain people you just don't cross, is not a new or unusual insight.

Still, I come from a denomination with the tradition of "Herr Pastor," a pastoral figure who you didn't cross.  I knew one such pastor, in his retirement; and the authority and respect he expected just from his position was a thing of the far past.  On the other hand, I served a church which never kept a pastor for more than 3 years, on average; and I know churches who regularly keep pastors for decades; so every rule is subject to exception.

But there is a growing literature among pastors of "Clergy killer" congregations, and one central point of the strife is the congregation that wants to be like a "mega-church," and mega-churches are businesses first and churches second.  They don't challenge their members, they appeal to them.

Well, that's another topic, and I've done it to death by now.

Are churches merely businesses?  No.  Are they more and more treated as such?  Yes:

As a scholar of religious history, I observe the way that faith intersects with culture. I study and publish on megachurches and my interpretation of this week's events is informed not only by my experiences as an employee at Hobby Lobby but also my knowledge of recent religious trends. My biggest question after hearing the decision was not about the particular opinions or practical repercussions (which are significant and have far-reaching and dangerous consequences). Instead, my first thought was: "What is it about our cultural fabric that enables us to attribute religious rights to a corporate entity?" In the United States we have increasingly associated Christianity with capitalism and the consequences affect both corporations and churches. It's a comfortable relationship and seemingly natural since so much of our history is built on those two forces. But it's also scary.

And why is that scary?

Megachurches advertise on television, billboards, the Internet. They have coffee shops and gift stores. Some feature go-cart tracks, game centers, even oil changes. Many are run by pastors that also serve as CEOs. So when Hobby Lobby seeks similar religious rights as these very corporate churches, we have to reconsider our definition of religious organizations and maybe even say "why not?" We have normalized corporate Christianity to the point that the Supreme Court deems it natural for businesses to hold "sincere" religious beliefs. The religious landscape in the United States, including our familiarity with megachurches and celebrity pastors, certainly contributes to the acceptance of the church/company conundrum.

The "why not" can be answered, however, with the real costs of the decision. Women's reproductive rights are compromised. The religious freedom of employees for these corporations is compromised. The sanctity of our religious institutions is also compromised. To protect religious pluralism and freedom of the individual we need clear demarcations between what is spiritual and what is economical. Otherwise, we sacrifice the soul of American religion and all that makes it good and why I study it on the altar of industry. I can't get those three months at Hobby Lobby back (or the praise muzak out of my head) but I can see more clearly the dangers of allowing corporate Christianity to become the norm. Without clear boundaries, we risk distorting the very idea of religious freedom and the rich, diverse religious culture that makes us who we are.

The slippery slope of unintended consequences, in other words.  And a result which has less to do simply with five men on the Supreme Court, and perhaps a bit more to do with the zeitgeist.

I'm forced at this point to ask what sound like silly questions, but are actually perfectly legitimate; such as this one:

How can a corporation be "Christian"?

Is it "Christian" because it objects to certain forms of birth control?  Or is it Christian because it sells all it owns and gives that money to the poor, and becomes a disciple of Christ?  Is it Christian because it has moral objections to government policy?  Or is it Christian because it only owns one coat, having given the second coat to someone with no coat at all?  Or because it visited the imprisoned, gave food to the hungry, shelter to the homeless, prayed without ceasing?

These are not frivolous questions.  "Religion is responsibility, or it is nothing at all."  And Christianity is all about responsibility.  It is about making the first last and the last first.  It is about seeing the arrogant put to rout and exalting the lowly; it is about inviting everyone into the basiliea tou theou.  It is about proclaiming release to the captive and restoring sight to the blind.    It is about responsibility towards others, which is to say responsibility (in the Christian sense, at least; which is all the Court really addressed in Burwell) towards God.  And that responsibility requires you to humble yourself to others, not to put yourself above them; because God is not on that throne with the ruler; God is in the street with the ptochoi.

Being Christian is not about making a return on investment, or a profit on what the people need (regard, as a simple object lesson, the cleansing of the Temple), or providing a dividend for shareholders.  Mind, none of the things business requires are necessarily antithetical to Christianity, but to conflate Christianity with business, to say a business can be Christian, is to drain the concept of Christianity of all meaning.

A business can be run by Christians, who try to the best of their understanding to live out their Christianity as business owners; but the business itself is not "Christian."  It is not the 'body of Christ,' it is not a charity, it is not guided by the principles of Matthew 25, and does not expect to be judged a sheep or a goat.

Who, after all, gets to decide what businesses are "Christian," what religious beliefs are "sincerely held"?  The Court expressly refused in Burwell to enter into the guessing game that even God won't enter into.

Will this Supreme Court ruling move churches closer to being businesses?  Not directly, I don't think.  I don't foresee a suit getting to any court challenging a church on the grounds it should be a business; although there may be some interesting challenges as to why churches enjoy tax exempt status and for-profit businesses don't, with much jumping through hoops to make some very legalistic distinctions.  A lot of the analysis in Burwell argues there is no difference between a for-profit corporation and a non-profit one; but that latter status is the primary legal basis for tax-exempt status for churches and charities.  If the logic of Burwell starts to erode that distinction, the case could have some very strange and sad consequences, indeed.