Monday, June 30, 2014

Meanwhile, back with the 1%

I dunno; because this opinion belongs in a comic book?

By now tout le monde knows that the Supremes have ruled in Burwell (nee Sebelius) v. Hobby Lobby, and the opinion stinks.

I agree with the dissent, but I hold out two carrots of hope.  One, a comment at the SCOTUSBLOG live blog of the opinion, which mentioned that Obama can make an administrative change to accommodate the Court's claim that the government can pay for contraceptive coverage for closely-held corporations which object to such coverage on religious grounds.  Whether this is right or not, I don't know; and I can't now find that liveblog anymore, so maybe I'm just crazy.

Second:  this opinion is based on RFRA, not on the 1st Amendment; and it seems to have nothing to do with Citizens United or corporations being people, and everything to do with a misreading of the Dictionary Act and RFRA, which misreading the dissent takes apart (and I leave it to those interested to read the dissent, which is worth reading even if it is written for lawyers).

As the dissent point out, the complainants actually have no Constitutional argument; that argument is precluded by Employment Div. v. Smith.  Therefore they had to bring a statutory argument, which is why they relied on RFRA.

My hope based on this second fact: that RFRA was passed in response to Employment Div. v. Smith (as the dissent helpfully points out); and insofar as the Supremes have misread RFRA (a bad statute in any case, IMHO), it can amend RFRA to correct the Court's error (a simple change would be to exclude corporations from the statute's coverage by clarifying that only "natural persons" have a protection for their "free exercise of religion.")  Again, the dissent does a thorough job of eviscerating the majority opinion on this point.

This is, in other words, soluble without a Constitutional Amendment; whether it can be corrected in the current political climate, is another matter.  But at least the White House is willing to try....

Adding:  I've found what I think is the most offensive language in the majority opinion, a phrase that echoes Mitt Romney's "Corporations are people, too, my friend!"  And frankly, given the history of corporate law, it's a been breathtaking in its dissolution of the "corporate veil:"

Corporations, "separate and apart from" the human beings who own, run, and are employed by them,  cannot do anything at all.

But the corporation is merely the people who own it; it is not the employees who work for it, who must submit to the religious opinions of the owners; at least until the government steps in and provides for them what the owners find unconscionable to provide on their own.

No comments:

Post a Comment