30 June 2014

Hobby Lobby

Silver linings. Maybe a toilet bowl lined with shiny things. But still. Shiny things.

1) It seems, as with Citizens United, to have pissed off the left-wing base that increasingly is the agitating energy for the Democrats. Citizens United, I don't think they are correct on most any sensible legal theory. This one I think was more questionable.

2) It does not appear to have actually denied anyone any access to birth control measures. There's a work around that the government used for non-profit entities that will be applied.

2a) We should really stop pretending in our society that "denying access", eg "banning" things is at all the same as "reducing the accessibility or affordability of" whatever it is. The second is still often bad, and may have bad consequences, or unequal consequences, but it is not (usually) the same as "criminal and civil penalties for". When many abortion restrictions are considered by states, those are effectively doing both. Where this decision was concerned, it did neither. The semantics are important here because people talking about actual denial of access when what we have is an increase in risk to accessibility in actual terms (because of money usually) are confusing the best practices of solutions. If the problem is people (women) cannot afford it, that's very different from people putting up actual roadblocks via regulations, like these: "you need a prescription, so you must go see your doctor first", or "the pharmacist won't fill those prescriptions for religious reasons", or "you must wait 48 hours", or "the clinic needs admitting privileges".

We're talking about accessibility in economic terms and there's ways to resolve that, via public policy if we choose (subsidies that phase out based upon income and need would have been far, far better than insurer mandates). If we're talking about accessibility in legal terms, then we have a very different problem, one that almost entirely depends upon public policy decisions. We should not be conflating the two kinds of problems. Stop it. Just don't. They can sometimes overlap in practical terms, but the fix for either is usually different. (This is probably why debates about freedom of speech in the wake of McCullen also annoy me, in that they fail to distinguish action, which is regulated or restricted, from speech, which should not be).

3) It is a fairly narrow reading of religion or religious beliefs. Which is amusing. I've seen it referred to as all of religion comes down to in the eyes of the conservative wing of the court is "unapproved fucking".

The first amendment protection of free speech restrains the government from doing very much about speech (which is why for Citizens United, I'm not sure what the corporate personhood element had to say or why people started running around complaining about a very long jurisprudence decision that "corporations are people" in legal terms). The first amendment protection of freedom of religion does likewise, but I'm not sure how this was squared with this decision. It did not permit other religious objections under the free exercise clause. Just this one part. It puts the court or the government in the unusual position of deciding which exercises of religion are acceptable within this context of employer/employee and thus regulating those. That was a very bad idea really. Either it means there will be many more cases of the same variety or the government will eventually say, nope only these sorts of objections are okay.

It's probably further evidence that employer provided health care plans are an incredibly stupid way to go. But it's mostly evidence that freedom of religion is poorly understood.

4) Of all the aspects of the ruling that are annoying, probably most annoying is why it was that this narrow religious objection was singled out as acceptable in the first place. The belief turns largely on a metaphysical belief about the nature of personhood as applied to fertilized human eggs (but not yet actually conceived via the scientific definition of conception as there isn't one simply because the term has no unified meaning) and thus what this means about the utility of certain kinds of birth control measures. Considering a vast number of fertilized eggs fail to implant in the uterine wall and thus become "conceived", and a further vast number are implanted but fail to develop for whatever reason and are miscarried, applying such a definition is based upon a flawed understanding of the nature of human reproduction. A definition that should be considered flawed enough as to carry little weight in the decisions to mandate certain kinds of birth control be carried under a company insurance policy because it is too fungible and arbitrary to be fairly used in legal terms. It would be like judging that it is okay that only people who believe the earth is flat can have unemployment insurance at this company. Not only is the belief wrong, it is functionally meaningless to the performance and benefits of the employees.

There were far better practical and legal objections to that mandate that had nothing to do with birth control. The fact that it was singled out suggests a focus by the right upon the aforementioned "unapproved fucking" of its own that may have merited the decision of the court to narrowly tailor the ruling to that one element of religious doctrinal thinking.

5) The other annoying part is the "closely held corporation" exception. While this is not the same as large publicly traded corporations, I'm not sure why this was somehow a right that should only apply narrowly to "smaller" corporate entities, controlled by few people.

6) Some of the decision turns on the question not of the size or scope of ownership, but on the profit motives of the companies involved. Which to me seems to have little or no bearing on what restrictions of these type may be applied, and in any case, which the government seems already to have accorded non-profit companies with special accommodations for religious liberty (however absurd in this case). Why it should not also do so with for-profit corporations is not something that I think is easily established, or why the government could not also perform a similar accommodation.

7) Another aspect of the decision itself has focused on the intentions of Congress and then subsequent interpretations of those intentions by the appropriate regulatory body. With the implication that HHS in promulgating regulations exceeded its authority. While this is debatable in this case, this reading of the case suggests yet another separation of powers battle, one of several over the last year, with the basic impact and import to be to rebuke the (bloated) expansion of the executive that took place especially over the last decade. I'm not sure this was necessary in this instance, but as a general matter, this is a laudable goal. Where it fails specifically is that Congress attempted to deal with this precise question and voted down the objection of religious practices.

8) Ginsburg's dissent is a mishmash of things I find agreeable and things I do not, much as the ruling itself is. The main thrust of the argument that I find of note and interest is the general practices of a law, if everyone must comply with a given law or regulation, religious exemptions are of little importance to them, and likewise if targeting the particular religious expressions are not the interest of the state in forming the law or regulation, as it was not in this case, then the law should stand. Again, I find this interesting in a general sense, but the specific law, requiring a private actor to buy something, as well as dictating the terms under which that something must exist, seems to be the wrong hill on which to fight that battle. It further becomes muddy because of the existence of exemptions for similar, but not same, formats of companies, exemptions which came into form primarily (but not wholly) because of religious exemptions. I do not find the logic that it in some way damages the accessibility of the contentious forms of birth control persuasive, because it is plain that there are already existing methods available to substitute to assure the interest of accessibility was maintained.

9) The main appealing quality (for me) of Ginsburg's dissent is where it remains tightly focused on first amendment free exercise readings, simply because for me this was largely a question of whether a particular belief was being infringed upon, and that in this instance, the particular belief was absurd. The problem there is that there are legal statutes in place that intend the courts not to challenge whether a belief is central and essential, regardless of its absurdity. And there does not appear to be case law in either direction suggesting that corporate entities, in their function as economic devices controlled by people, do or do not have access to those exercise rights of religious beliefs. The conclusion that they should is inferred from example. The conclusion that they should not is largely inferred by absence. This is not as clear and settled a matter as a result as it appears in dissent.
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