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4 Things You Probably Have Wrong About the Hobby Lobby Decision

Supreme Court Hears Arguments In Case Challenging Affordable Care Act

Today I'd like to focus on the topic of religious liberty, a topic relevant to both Catholics and atheists. On Monday, the Supreme Court issued its decision in the Hobby Lobby case (Burwell v. Hobby Lobby Stores, Inc.), siding with Hobby Lobby. It was a 5-4 decision, with Justice Alito writing the opinion (Justice Kennedy, who joined the majority, also wrote a concurring opinion). The Court's decision, holding that the HHS Mandate violates Hobby Lobby's religious freedom, has already been seriously misunderstood. So let's set the record straight on four major issues:

1. Is This Case About Scalia and Other Court Conservatives Imposing Their Religion?

 
No: something nearer the opposite, really. This whole case involves a law called the Religious Freedom Restoration Act (RFRA), a law that exists because of a controversial 1990 Supreme Court case called Employment Division v. Smith.

Here's what happened: Alfred Smith and Galen Black worked at a rehab clinic, but were fired for using peyote, and denied unemployment benefits. They sued, claiming that they were using peyote for religious reasons, because they were members of the Native American Church. In a 5-4 decision authored by Justice Scalia, the Court held that a facially-neutral law could be applied across the board, even if it had the effect of hindering religious rituals.

The case was explosive. In his dissent from SmithJustice Blackmun noted that the “respondents' use of peyote seems closely analogous to the sacramental use of wine by the Roman Catholic Church.” Thus, the Smith decision seemed like it might allow the government to pass facially-neutral laws (like prohibiting peyote or wine) that effectively outlawed a particular religion.

Unsurprisingly, both conservatives and liberals were startled by Smith. Rep. Charles Schumer (D-NY) and 170 co-sponsors (122 Democrats, 47 Republicans, and an Independent)  introduced RFRA. It quickly passed 435-0 in the House and 97-3 in the Senate. As the Court noted in its decision today, RFRA “prohibits the Federal Government from taking any action that substantially burdens the exercise of religion unless that action constitutes the least restrictive means of serving a compelling government interest.”

That's the whole point of the law: to make it harder for a federal law to trample the exercise of religion, without a compelling government interest. In other words, Congress was concerned that Scalia and the other conservatives on the Supreme Court didn't take a broad enough view of religious freedom. Which is probably the opposite of what you've heard.

2. Isn't this Case just About Contraception?

 
No. While there are plenty of parties suing who are against contraception, Hobby Lobby isn't amongst them. Their objection was just to paying for abortions.

Four of the twenty drugs involved in this case are believed, not just to prevent conception (which would make them contraceptive, as the name implies), but to prevent the implantation of an embryo into the uterine wall. Interfering with the natural development of an embryo in order to bring about its death is an abortion.

At the heart of this, there's a semantic debate over when pregnancy begins, because two definitions are used. Some obstetricians use an early definition: pregnancy begins once the sperm fertilizes the egg, resulting in an embryo (an organism genetically distinct from both its parents). Other obstetricians use a late definition: that pregnancy doesn't begin until the fertilized egg implants into the uterine wall.

Of these, the early definition is better. Imagine that, one day, scientists are able to fuse sperm and egg in a laboratory setting, and bring the child full term in an artificial womb (or some other laboratory conditions). According to the late definition, we would have to conclude that this person was never conceived. That's an absurd result, easily avoided by holding to the early definition.

But regardless of the semantic debate, the fact remains: even amongst those people who are fine with contraception, many still disagree with killing a fertilized embryo (or being forced to pay for others to do so). The owners of Hobby Lobby are just such people. As the Court noted in today's opinion:

"The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients. If the owners comply with the HHS mandate, they believe they will be facilitating abortions, and if they do not comply, they will pay a very heavy price—as much as $1.3 million per day, or about $475 million per year, in the case of one of the companies. If these consequences do not amount to a substantial burden, it is hard to see what would."

3. Did the Supreme Court Just Declare That Corporations are People?

 
Rick Ungar at Forbes responded to the Hobby Lobby decision by writing an article entitled “Founding Fathers Spinning In Their Graves As SCOTUS Rules That Corporations Are People Too.” This is a surprisingly frequent allegation, given how hilariously wrong it is.

Do you know who decided that corporations are people, too? Congress. To see that, you don't need to read any further than 1 U.S.C. §1, the very first law on the books. It reads: “In determining the meaning of any Act of Congress, unless the context indicates otherwise [...] the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.”

And guess what? That's the whole point of a corporation. They enter into contracts, as if they're people. They're allowed to own property, as if they're people. They have to pay income tax, as if they're people. If you got rid of these rights and duties, you would be eliminating the entire purpose of corporations existing, which is why no one who understands corporate law seriously proposes changing this part of 1 U.S.C. §1.

But having said that, corporations aren't really people, and there are some rights that they don't enjoy (for example, the right to vote). So the task of the Supreme Court was to figure out whether the religious freedom protection of RFRA is one of those rights. In Monday's decision, they determined that it was, at least for a closely-held corporation (that is, a corporation in which 5 or fewer people control a majority of the shares).

4. Did Either Side Deny that Corporations are People Under RFRA?

 
No, which is why the panicky reactions of Ungar, et al, are so surreal. The HHS admitted that a nonprofit corporation can be a “person” under RFRA. But the HHS' position was that a nonprofit corporation could exercise religion, but that a for-profit corporation couldn't. So if you're a Christian non-profit, you can exercise religion, but if you're a for-profit Christian bookstore, you can't.

As the Supreme Court noted, such a distinction makes no sense. That position also would make it very hard for activist corporations to exist: the HHS' position amounts to saying that for-profit corporations can only exist for the sake of profit. The Court noted that:

"This argument flies in the face of modern corporate law. [...] While it is certainly true that a central objective of for profit corporations is to make money, modern corporate law does not require for-profit corporations to pursue profit at the expense of everything else, and many do not do so. For-profit corporations, with ownership approval, support a wide variety of charitable causes, and it is not at all uncommon for such corporations to further humanitarian and other altruistic objectives. Many examples come readily to mind. So long as its owners agree, a for-profit corporation may take costly pollution-control and energy conservation measures that go beyond what the law requires. A for-profit corporation that operates facilities in other countries may exceed the requirements of local law regarding working conditions and benefits. If for-profit corporations may pursue such worthy objectives, there is no apparent reason why they may not further religious objectives as well. [...]
 
Not all corporations that decline to organize as nonprofits do so in order to maximize profit. For example, organizations with religious and charitable aims might organize as for-profit corporations because of the potential advantages of that corporate form, such as the freedom to participate in lobbying for legislation or campaigning for political candidates who promote their religious or charitable goals."

As an example of such a for-profit corporation, the Court pointed to Google.org, which “'advance[s] its charitable goals' while operating as a for-profit corporation to be able to 'invest in for-profit endeavors, lobby for policies that support its philanthropic goals, and tap Google’s innovative technology and workforce.'” So it's not just religious organizations that the HHS' position would have undermined, but all manner of socially-conscious companies. The government was prepared to undermine all for-profit corporations' ability to be socially conscious, just because they happened to dislike the particular kind of social activism that Hobby Lobby engaged in.

So regardless of your views on contraception or abortion, or whether you're a Catholic or an atheist, if you're a person who wants for-profit corporations to be able to act ethically - to be able to concern themselves with something more than fattening their shareholders' wallets - today's decision is a very good thing.
 
 
(Image credit: The Gospel Coalition)

Joe Heschmeyer

Written by

Until May 2012, Joe Heschmeyer was an attorney in Washington, D.C., specializing in litigation. These days, he is a seminarian for the Archdiocese of Kansas City, Kansas, and can use all the prayers he can get. Follow Joe through his blog, Shameless Popery or contact him at joseph.heschmeyer@gmail.com.

Note: Our goal is to cultivate serious and respectful dialogue. While it's OK to disagree—even encouraged!—any snarky, offensive, or off-topic comments will be deleted. Before commenting please read the Commenting Rules and Tips. If you're having trouble commenting, read the Commenting Instructions.

  • The decision is not obvious, and it may have far-reaching implications for access to contraception, although from my perspective those far-reaching implications will turn out to be positive. First, a couple good resources about the decision, and why it was so close (5-4 instead of 9-0):

    https://www.youtube.com/watch?v=n_fKAKOprj4
    (Behind the Decision with Prof. Christopher Schmidt).

    Some further discussion from Prof. Schmidt: http://now.iscotus.org/news/hobby_lobby_corporations_constitutional_rights

    The Sebelius vs. Hobby Lobby etc. case itself, including a recording of oral arguments and links to the briefs and decisions: http://www.oyez.org/cases/2010-2019/2013/2013_13_354

    One of the reasons that the majority did not find compelling interest for closely held companies to provide contraceptives is that the government already has provisions in place to provide contraceptives, should the companies refuse. Therefore, if Hobby Lobby or another company decides not to provide some or all of the mandated contraceptives, for whatever reasons, the government can step in. This decision will, I suspect, ultimately lead to the government becoming more involved in healthcare and companies becoming less involved. It's a natural consequence of the Affordable Care Act, and one step closer to a nation-wide government-provided healthcare system. That's a very good thing.

  • My one minor issue with this article, is with Thing 2. Although this case wasn't just about contraception, the decision is about contraception, and more. This was pointed out pretty clearly in the oral arguments, and also mentioned in the minority opinion. The decision doesn't just protect Hobby Lobby, who wants to provide for all but four of the contraceptives, but would protect any closely held company who has moral objections to all contraceptives. This also provides a basis for litigation for closely held companies with other objections to ACA, not dealing with contraception at all.

    • "This also provides a basis for litigation for closely held companies with other religious objections not dealing with contraception at all."

      Of course! Are you suggesting that people or corporations whose religious liberty has been threatened (in cases unrelated to contraception) should have no legal recourse? It sounds like you're worried such recourse may be possible. I can only hope it is!

      It should be noted that, despite mainstream assertions to the contrary (here's looking at you, Huff Post), religious liberty is not absolute. It can be overruled by the government *if* they have a compelling interest *and* if the action presents the least restrictive means of furthering that compelling interest. However, both must be proven.

      Promoting religious liberty is therefore not to promote arbitrary "picking and choosing" of laws. A person or group has to demonstrate why their liberty is threatened, and the state has to prove a compelling interest that can't be achieved in better, least restrictive ways.

      The state failed to do this with employer-provided abortifacients. Besides the debatable question of whether the government has a compelling interest in free abortifacients (I don't think they do), forcing employers to pay for it, especially against their consciences, is certainly not the least restrictive way to provide it.

      • It is not a worry; it's just that the court's decision on this case is far-reaching, and may induce a sort of legal chaos, with the courts inundated with requests to opt out of paying or blood transfusions and the like. At least, the minority opinion expressed this concern.

        That said, I agree with you that forcing objecting employers to pay for contraceptives is not a good way to provide them. They should be provided for by the government. This ruling will shift more medical responsibility from companies onto the government. Which was one of the original goals of the ACA. I can only see this ruling as a good thing.

        • Joseph Heschmeyer

          Paul,

          I'm inclined to think that it won't be chaos, anymore than RFRA itself created "chaos." It just means that if the government is going to step on the rights of religious individuals or groups, they're going to have to show that it's necessary that they do so. I don't think that's an unreasonable burden.

          In fact, the original outcry from both left and right after Smith was precisely because it seemed to let the government infringe on free exercise rights without even showing a need to.

          If it didn't involve a debate about abortion (and the spectre of a debate about contraception in the foreseeable future), I think almost everyone would applaud this decision as a no-brainer.

          • Joseph,

            Your response about RFRA and chaos is, if I recall, pretty-much what the advocate for Hobby Lobby pointed out to Kagan (who raised this issue). If there was going to be legal chaos over RFRA, it would have happened already, and it hasn't. Kagan's response was that legal chaos hasn't happened because RFRA was being interpreted in a particular legal context, and that in siding with Hobby Lobby, the Court would be ripping RFRA from its proper context.

            I agree with you that this is probably not going to happen. What's more likely is that some closely held corporations will now refuse to comply with various parts of the ACA, mostly involving contraceptives. Then the government will step in and provide those contraceptives, either by forcing the insurance companies to cover them without reimbursement, or by paying for the contraceptives with tax dollars.

        • "That said, I agree with you that forcing objecting employers to pay for contraceptives is not a good way to provide them. They should be provided for by the government."

          Why should the government provide contraception? What compelling interest would justify this large cost?

          • To my understanding, "compelling interest" in the context of this case was not met because the government already has exceptions for non-profits and because of grandfathered policies, and if forcing Hobby Lobby's provision were really in the best public interest, there would be no such exception for any company. If a non-profit refuses to provide contraception, then the government pays for the contraception. The majority opinion suggested the same thing could be done for closely held corporations.

            Bottom line (as far as I predict): ACA guarantees support for contraceptives. It originally required companies to pay for them. Now some companies can opt out. ACA still guarantees support for contraceptives. Now either the insurance companies or the government itself will be required to provide that financial support.

        • The law does not force businesses to pay for contraception. It forces them to provide comprehensive health care insurance that covers contraception and some employees can choose to use this for contraception. These benefits are remuneration. So are the wages which some employees can use to pay for abortions or donate to anti Christian groups.

          I think the ruling gets it wrong in characterizing the ability to limit what their employees do with their remuneration as a tenet of their religion. I think it also fails to properly balance this against women's right not to suffer a detriment because of their employer's religion.

          • "The law does not force businesses to pay for contraception. It forces them to provide comprehensive health care insurance that covers contraception and some employees can choose to use this for contraception. These benefits are remuneration. So are the wages which some employees can use to pay for abortions or donate to anti Christian groups."

            I disagree that such benefits are akin to remuneration. But instead of going down that tributary, let me ask you this question:

            What about the many Catholic colleges, hospitals, newspapers, organizations, etc. that are self-insured?

            They cannot avoid directly paying for abortions, contraception, sterilizations, etc.

            Would you at least agree that self-insured groups with religious objections should be exempt from such a mandate? (The HHS currently doesn't agree.)

          • Benefits are not akin to remuneration, they are remuneration.

            No, I think the interference here is not impairing any significant practice of religion.

            I am not sure how the scheme works, are these not group benefit plans with employers paying premiums? Or does the employer directly pay for the treatment?

          • Michael Murray

            Brian there is an interesting article here on the history

            http://en.wikipedia.org/wiki/Health_insurance_in_the_United_States#The_rise_of_employer-sponsored_coverage

            My understanding is that the employer pays premiums. But as an Australian the whole discussion is foreign to me.

            EDIT: OK I am wrong. Some employers do pay the benefits directly

            http://en.wikipedia.org/wiki/Self-funded_health_care

          • Michael Murray

            This is off-topic but maybe someone in the US can correct me if I am wrong. Does self funded health care really mean your employer knows your medical history ? That seems an amazing privacy infringement.

          • David Nickol

            Does self funded health care really mean your employer knows your medical history ?

            I think it's safe to say "no, as a rule," but I wouldn't say "never."

            What usually happens (and this was the case of the company where I worked for quite a long time) is that a "self-insured" employer hires an insurance company, and the employees deal with that insurance company much the same way they would if they had bought a policy from that company. The employer then pays the cost of all claims paid by the insurance company. The employer also pays the insurance company something to cover all the costs of administering everything (and of course the insurance company charges enough to make a profit on the deal). The company I worked for received general information from the insurance company (and I assume this is standard) as to the kinds of claims that were paid out. Being a very large company, it would not have been possible for those who dealt with insurance to identify which employees had incurred medical expenses for specific treatments. Small companies do not self-insure.

            The question is actually relevant, because one of the "accommodations" for religious organizations who self-insure is to have the insurance company they hire to administer their health coverage pay the tab for contraceptives out of their own pocket (and be compensated in one way or another by getting tax breaks or some such thing from the government). So it need not be the case that self-insured employers pay the cost of contraceptive coverage for their employees.

          • Michael Murray

            Very informative. Thanks David.

          • This is actually my field, and I can tell you that benefits are considered part of the remunerative package at law, at least in Canada. This is why the term "remuneration" is used rather than "wages".

          • David Nickol

            What about the many Catholic colleges, hospitals, newspapers, organizations, etc. that are self-insured?

            They cannot avoid directly paying for abortions, contraception, sterilizations, etc.

            Yes they can. I just explained why here. My explanation was by no means detailed or complete, but there are all kinds of proposed schemes to prevent self-insured religious organizations from paying the costs for contraceptive coverage.

            It is interesting to note that Hobby Lobby's insurance plan covered all forms of contraception before they became the plaintiff in a lawsuit against HHS.

          • David Nickol

            Here is a more complete answer from the Association of Catholic Colleges and Universities on how self-insured religious organizations can avoid paying the cost of contraceptive coverage.

            How will the accommodation apply to self-insured employee health plans?

            Most self-insured plans have some kind of third-party administrator. Under the final rule, the self-certification described in question 4 will be treated as a designation of the third-party administrator as plan administrator and claims administrator under ERISA, solely for the purpose of providing payments for contraceptive services. In addition,
            the eligible Catholic college or university’s self-certification must expressly notify the third-party administrator of those obligations.

            Third-party administrators receiving the self-certification are under no obligation to enter into, or remain in, a contractual relationship with the eligible organization. Eligible colleges and universities must therefore identify a third-party administrator that is willing to provide access to the products and services to which the institution objects. The final regulations prohibit self-insured eligible organizations from directly or indirectly seeking to influence their
            third-party administrator’s decision to provide or procure contraceptive services.

            Once an eligible organization identifies a third-party administrator that is willing to provide or procure payments for contraceptives, procedurally, the accommodation will work in basically the same way for self-insured plans as for insured plans, except that the third-party administrator will perform the functions of the insurer. The third-party
            administrator is required to pay claims for contraceptive coverage directly or arrange for an issuer to pay such claims. The final rule contemplates that the costs of the third-party administrator or issuer, as the case may be, will be covered through a reduction in the Federally Facilitated Exchange user fee. (A Federally Facilitated Exchange is an
            insurance exchange operated by HHS in a state that does not have or operate its own exchange.)

          • I don't believe a single person will suffer detriment for any significant length of time, because, as the majority opinion stated, the government has other options. The government can step in and secure coverage, either by mandating that the insurance companies provide the service without direct compensation, or by paying for that component of the coverage itself.

          • That is possible, I still don't buy that this was a significant interference with religion.

    • Joseph Heschmeyer

      Paul,

      1) Brandon is right that religious exercise "can be overruled by the government *if* they have a compelling interest *and* if the action presents the least restrictive means of furthering that compelling interest. However, both must be proven."

      So if the government wants to include pork in prison lunches, they can't force Jewish and Muslim inmates to eat it (because whatever compelling interest they have in proper nutrition could be achieved with means that are less restrictive of their religious exercise). But on the other hand, the government can do things like outlaw human sacrifice.

      2) Another thing worth noting is that the Supreme Court didn't create that system. Congress (by a 435-0 House vote and a 97-3 Senate vote) and President Clinton did by passing RFRA in the first place. The majority on the Court is just interpreting the law as written, rather than deciding what they wish they law was (which is to say, the majority is doing their job).

      If Congress doesn't like this decision, they can nullify it simply by changing RFRA to specify, for example, that for-profit corporations don't have religious rights or aren't "persons" within its scope, etc.

      3) As for contraception, this case didn't involve it, except in the sort of "slippery slope" sense that this would bolster the pending contraception cases (as you've said). For those who favor contraception, I'd love to hear an argument as to how the HHS Mandate is (a) meeting a compelling governmental interest (particularly given the widespread availability of contraception presently, and the relatively few plans that omit it) and (b) the least restrictive means of achieving that interest.

      So even if you're pro-contraception, it doesn't naturally follow that (a) contraception should be free, and (b) that it should be provided by employers over their religious objection (rather than any number of other ways, like the state paying directly for it). From what I can see, this encroachment on the religious freedom of employers is totally gratuitous and unnecessary.

      • I still disagree with you about whether this case was about contraception. During oral arguments, one of the justices asked the advocate for Hobby Lobby whether the case would be any different if Hobby Lobby refused all the contraceptives instead of just some of them. The advocate for Hobby Lobby said no, that it wouldn't matter whether they refused one, or four, or all of them, so long as their refusal was motivated by their religious beliefs.

        As to the obviousness of the decision, RFRA can be interpreted in various ways, and that's one of the reasons this was a 5-4 decision. After all, what kinds of corporations are to be granted a religion? Should it be only private corporations? Closely held corporations where 100% of stock holders are of the same faith? Where 80% are? What are the rules for compelling interest in this case? Is compelling interest required in each case? If interestes have to be considered by the court individually for each case, then what's the difference between this rule and no rule at all? The oral arguments reveal that the justices are not all on the same page about any of those questions. And I am not intelligent enough to see these issues as clear-cut. I'm not sure what the answers to these questions ought to be. But I do think that the Supreme Court made the right decision.

        I am pro-contraception. I do think contraceptives should be provided for free, but by the government, and not by private companies. I advocate for nationalized healthcare. And one of the reasons I am pleased with the result of this case. I think it will bring the United States one step closer to nationalized healthcare.

        Since I live in Scotland, my family and I are already there.

        • James Scott

          >I am pro-contraception. I do think contraceptives should be provided for free, but by the government, and not by private companies. I advocate for nationalized healthcare.

          Even thought politically I am against such socialist pretensions from the viewpoint of morality and civil liberty that is not a direct assault on my rights as a Catholic as is a government mandate for me to buy you Birth control.

          If you work for me & use the money you earn for activities my religion says are sinful I am not a direct material participant in them. Thus I have no moral objection to paying you and I am in fact morally obligated to pay you for labor done.

          In a like manner Taxes are money I pay the government to do it's job governing and if they use the money for evil I still morally have to pay taxes.

          Of course as a citizen I am by my religion morally obligated to participate in government by voting/running for office to do what I can within the legal process to stop the government from providing immoral services like Artifical Birth Control.

          But you still have citizenship too for your Atheist pseudo Socialism.

          That is democracy and it is the worst form of government except for all the others.

          Cheers.

          • Right. Now, you can stop paying for my contraceptives, I cry to the government, then the government pays for my contraceptives instead. The government is now one step closer to running healthcare. It's now funding part of my healthcare that would have otherwise been funded by you. I think that's a very good thing.

          • James Scott

            I don't think it is a good thing but that having been said I would rather live in a democratic socialist society that truly respected my religious & political liberty then a Republican Capitalist one that did not.

            Cheers again.

          • Danny Getchell

            The government already uses your taxes, via Medicaid, to pay for contraception. Into the billions....

            http://www.guttmacher.org/pubs/fb_contraceptive_serv.html

            Yet the Catholic Church is strangely unconcerned about this. I'm sure they are unwilling to offend their allies in the Democratic Party, with whom they are in 99.8% agreement on every other expansion of government, setting aside only the area of sexual morality.

          • James Scott

            If you read my other posts I already explained why the government using tax dollars to do evil isn't the same as compelling me to directly do evil.

            Like I said above to Paul BR. If you work for me I am obligated morally to pay you & I can't withhold your salary even if I know you will use your money for something my religion says is evil like let us say birth control or porn. But that is not the same as the government telling me to eliminate the middle man and compensate you by directly giving you birth control or porn.

            Taxes are the money I pay the government to govern. If they mispend that money then I am morally a remote material participent in evil. Not a direct one. So I have not violated my Catholic faith by paying your salary or paying taxes.

    • James Scott

      >but would protect any closely held company who has moral objections to all contraceptives.

      What is wrong with that? I'm a Traditional Catholic. I believe all artificial birth control is immoral and intrinsically evil. I would no more buy or provide you a condom or BC pills then I would a dirty magazine. No government or free society has a right to tell me different or force me to act otherwise.

      You OTOH are still free to buy your own BC Pills/Condoms and or dirty magazines(not that I am making accusations or casting aspersions on your private activities mind you. This is just a thought experiment).

      An American women who works for me and gets no BC covered by me in her employer provide Health Insurance can go out and get her own. She can walk into any TARGET store and lay down $9 a month for her own sin pills. I can't stop her and all I will do is pray for her.

      Why is this hard?

      • I didn't say that there is anything wrong with that. It's just not what I understood Joe to be saying. I hope that private companies get to opt out of more and more, and the government can take over more and more.

        • James Scott

          Understood, good to see we have some common views, thought the idea "government can take over more and more." is IMHO a recipe for disaster but that will have to be a political discussion for another time.

          Cheers.

      • Danny Getchell

        Frankly I'd like to know why it's wrong to require an employer to cover contraceptives, but okay to require an employer to cover, say, hip replacements.

        Why not just require every company to buy its employees' groceries and pay its' employees cable TV bills??

        • James Scott

          You make a good case for Libertarian-ism. Which I have some sympathies.

      • Tim Dacey

        Re: "I'm a Traditional Catholic. I believe all artificial birth control is immoral and intrinsically evil."

        This is what I find more interesting. That is, the RC's belief that artificial birth control is immoral and intrinsically evil. This view, I think, is unjustified. In the Eastern Orthodox Church, the most liberal position on birth control is that a woman cannot use it without the blessing and guidance of her spiritual father. That is, she must first provide the reasons she needs it (e.g., maybe she has an irregular cycle) and what kind she wishes to use (e.g., she would not be permitted to use any abortifacients; nor, at least in my experience, would she be permitted to use birth control which might have negative side effects to her body). Her spiritual father will then provide her the proper guidance.

        Now suppose Sam uses the outline above as a way to be intimate with her husband and not get pregnant, and another woman Pat, who is not married and uses birth control in order to be promiscuous and not get pregnant. Is the RC suggesting that both women are equally immoral? Clearly there is a difference between the two whereby Sam is religiously/morally justified in using birth control and Pat is not.

        • Michael Murray

          Women really have to discuss their private sexual matters with their "spiritual father". Is the spiritual father a qualified medical practitioner who can comment with authority on the possible side-effects on this particular women ?

          I am always confused by why a thermometer is not artificial. I doubt Adam and Even had them in the Garden of Eden.

          • James Scott

            There is no moral imperative against using technology to predict fertility and choosing to refrain from sex during fertility.

            Since not having sex is not the same as having un-natural sex.
            I don't have to have sex with the Mrs when she is fertile(if you will forgive the "too much information dude" imperative).

            Not having sex is a negation. Not having sex with my fertile wife is like not having sex with the lady next door.

            It is not a sin now is it?

          • Michael Murray

            It remains an artificial method of avoid procreation in my perspective.

            Not having sex is a negation. Not having sex with my fertile wife is like not having sex with the lady next door.

            It is not a sin now is it?

            Surely that depend on how large a family God wants you to have ?

          • James Scott

            >It remains an artificial method of avoiding procreation in my perspective.

            So what it is our Catholic perspective that counts to us.

          • Susan

            So what it is our Catholic perspective that counts to us.

            Then, why say artificial?

            Michael seems right. A thermometer is as artificial as much more reliable contraception.

            Please define artificial. I'm confused.

          • Michael Murray

            You, me and the multitudes of Catholic's using the "sin pill".

          • Susan

            the multitudes of Catholic's using the "sin pill"

            I wonder what percentage of "catholics" who can access the sin pill use the sin pill.

            All the stats seem to indicate it's pretty high.

            I guess they're not true catholics but that won't stop the church or people at this web site from counting them in statistics (usually, when the argumentum ad populum rears its ugly head).

            Sorry. Bit of a wander there.

          • HollowGolem

            Didn't take long to see "no true Scotsman" trotted out.

            I think this comment thread will be a great way to snipe for fallacious reasoning.

          • James Scott

            The wide spread use of the sin pill by Catholic reflects the negligence of the Bishops in teaching the Faith to the faithful.
            But that is the Church's Problem the government should stay out of it.

          • James Scott

            It is short hand for artificially thwarting the conception process(blocking sperm in a plastic balloon thingy, using artificial hormones to trick your body into thinking it's pregnant).

            Not having sex is simply not having sex.

          • Susan

            It is short hand for artificially thwarting the conception process

            Sort of like people thwarting it by thermometer? Or is the problem that some people thwart more effectively than people who use thermometers? Everyone's thwarting, aren't they? Is it degrees of "artificial" that are the issue? Are you going to define "artificial" for the sake of the argument? It seems key to the point you're trying to make.

            Not having sex is simply not having sex.

            Not making toast is simply not making toast. I'm not trying to be snarky. But we could do that sort of thing all day.

            Are you suggesting that people who opt for birth control methods that are more sophisticated and effective than thermometers are not having sex?

            But you are?

            Because having sex is by definition your definition of having sex?

            Still confused.

          • James Scott

            I will just repost what I said to Michael maybe you are having trouble finding it?

            Like I said Natural Theology and the Problem of Evil are my area of expertise so I stole the following explanation from a
            Catholic Forum that asks the questions you ask.

            Each act of intercourse must be objectively unitive and procreative-- unaltered.Natural family planning is not contraception.

            Contraception is an action taken by the couple before, during, or after intercourse to render it sterile.

            Natural family planning does not take any action before, during or after intercourse to render that act of intercourse sterile. Every time the couple engages in intercourse, it is unaltered in any way.Effectiveness is not the basis of the Church's teaching that contraception is wrong.
            The decision of the couple to engage in the sex act or refrain from it is always there. I'm not having sex with my [ Wife] right now. Is *not* having sex contraception? No. It is abstention, which has always been taught by the Church to be acceptable. The Church does not teach we must have sex with any particular frequency. It merely teaches that when we do, we can take no action to alter it.END QUOTE

          • HollowGolem

            "Natural family planning does not take any action before, during, or after intercourse to render that act of intercourse sterile."

            Except that it does. Keeping a calendar tracking fertility is, in fact, an action, taken before and after (and perhaps during, if you're into that) intercourse that insures that when you perform the act, it is sterile.

            NFP comes across as a "letter of the law" kind of cop-out, where you're sort of missing the spirit of the law.

            Sexuality is sinful unless it is fulfilling god's commandment to "be fruitful and multiply." Anything else, for whatever reason, is immoral. At least that's how I understand the foundation of the church's position.

          • James Scott

            Keeping a calendar of the fertility render the act sterile? No it simply does it. The infertile time in the cycle of fertility is part of it's nature. Causing the body to alway be infertile is sterility. What the body does by nature is not.

            Pope Paul and his predecessors endured NFP.

            End of story. Believe what you like but you have no authority to bind my conscience.

          • BrianKillian

            That's half right. There's one more reason that is considered legitimate - and that is love, and really it's love that makes legitimate the being fruitful and multiplying.

            Our cultural ideas about sexual love are pretty subjective and sentimental, but in Catholic theology it is rooted more objectively and ties together the subjective and the objective.

            So it's not that the biological function of sex must always be intended, or always realized. But that the interpersonal dimension of sexual love is rooted in that biological nature of sex and inheres in it. So that if we tried to intentionally separate them it would destroy that bridge between the subjective and objective dimensions of love.

            Or to put it another way, that sex is about fruitfulness and multiplying is a necessary condition for it being about love and intimacy. So one difference between NFP and other forms of birth control is that NFP respects that 'aboutness' of sex.

            Since sex already doesn't naturally lead to conception most of the time, one can avoid that result while still respecting what sex is about.

            But other forms of birth control work by altering what sex is about. Instead of respecting that connection between sex and fruitfulness, it destroys that connection.

            Pretty radical difference when you think about it.

          • Michael Murray

            Not having sex is simply not having sex.

            Deliberately not having sex when contraception might occur is not the same is not "simply not having sex". It is "deliberately not having sex when contraception might occur".

          • James Scott

            So what? That is not by nature immoral nor does it alter the natural fertility cycle of a woman.

          • Max Driffill

            The moral outcome is the same in NFP and medical birth-control, children are avoided.

          • James Scott

            No Rather the practical outcome is the same. The moral outcome is different.

            Murder is the unlawful taking of human life.
            I kill you for shits and giggles(not that I would mind you thought experiment so relax ). I have unlawfully taken your life morally I am a murderer. Practical result a dead human being.

            Alternate scenario I try to murder you but you kill me in self-defense. Morally you may use sufficient force even deadly force to repel an immediate unjust attacker. Morally you are not a murderer. Practical result a dead human being.

            Contraception the human fertility and reproductive cycle is interfered with and immoral contraception takes place practical result no child is conceived.

            NFP you have sex during the natural infertile time allowed by the natural cycle no contraception takes place practical result no child is conceived.

            Really people what's with hidden utilitarian philosophical presuppositions?

            Catholic moral theory is incompatible with utilitarianism.

            Think essentialism.

          • Max Driffill

            Is it immoral to undergo treatments that interfere with the natural cycle of the woman in other situations? Why should anyone care if it a woman's natural cycle is interfered with? Why is trying to foil the natural cycle of the woman moral?

          • James Scott

            >Is it immoral to undergo treatments that interfere with the natural cycle of the woman in other situations?

            Not if the intent of the treatment is other then to cause contraception. In that case the contraception is an unintended side effect and the treatment can be justified according to the moral theory of the Double effect.

            >Why should anyone care if it a woman's natural cycle is interfered with? Why is trying to foil the natural cycle of the woman moral?

            If you believe in Divine and Natural Law you would care. If you don't then you don't.

            Not my area thought this discussion has afforded me time to brush up on my knowledge of moral theology.

          • Michael Murray

            So from the Catholic perspective how is deliberately having sex at a time at which you and your wife hope she is not fertile different to having sex with some barrier method such as a condom or diaphragm? In either case you appear to be trying to frustrate the natural procreative function of sex.

          • James Scott

            It is not a question of ends as much the means to the end. I can loose weight by dieting or by eating then purging. Both cause me to loose weight yet one is physically harmful and can lead to sickness. the other does not.

            In contraception I am thwarting the natural end of the act by unnatural means.

            In NFP I am simply not having sex when fertility is likely to occur. I am not thwarting anything since I am not doing anything. I am not frustrating what I am not doing.

          • Michael Murray

            In NFP I am simply not having sex when fertility is likely to occur. I am not thwarting anything since I am not doing anything. I am not frustrating what I am not doing.

            But you are using artificial means to choose when to have sex. I really don't see the difference. If God had wanted us to avoid conception surely He would have made the time of ovulation in female homo sapiens more obvious as it is in other female primates.

          • James Scott

            >But you are using artificial means to choose when to have sex.

            No I am using technology to predict a natural body function. I am not interfering with that function.

            >I really don't see the difference.

            Because you haven't taken the time to learn. Like most laymen you get a list of rules do's and don't and very little by way of explanation or detailed meaning of the teaching.

            It's not your fault but I would council you look into it. I was once pro-contraception. Now I can't imagine ever being so again.

            >If God had wanted us to avoid conception surely He would have made the time of ovulation in female homo sapiens more obvious as it is in other female primates.

            That is bad theology and a walking talking affront to the teachings of Aquinas and the Church.

            God in fact doesn't have to create at all. There is nothing he is obligated to create nor is he obligated to create anything a certain way.

            That sounds too much like Paley functionalism argument by design.

            We can't have that.

            Cheers. I must sleep now.

          • Michael Murray

            I am not interfering with that function.

            You are interfering with the function by deciding when to have sex. The natural function is to just have sex as you and your wife desire.

            Because you haven't taken the time to learn. Like most laymen you get a list of rules do's and don't and very little by way of explanation or detailed meaning of the teaching.

            I grew up a Catholic. I've had the detailed teaching. But I regard the Church's argument is just a bad rationalisation because it knows the political consequences of allowing its flock absolutely no method of contraception. Enough are ignoring the current rules.

          • James Scott

            >You are interfering with the function by deciding when to have sex. The natural function is to just have sex as you and your wife desire.

            The Bible clearly states in the letters of St Paul a husband and wife by mutual consent may choose to refrain from sex.

            1 Cor. 7:1-7

            Your statement is bad logic. That is like saying I am interfering with the driving function of my car by not driving it;

            >I grew up a Catholic. I've had the detailed teaching.

            I also grew up Catholic. We where not taught squat but a few rules of do's and don't. No exceptions. Your conspiracy theory is amusing but shows an ignorance of the Church Father's, Scholastics, Final Causality and the whole of the Western Theological Tradition.

            Everything I learned I learned on my own or from CATHOLIC ANSWERS and similar ministries.

          • Max Driffill

            That seems a bit snarky. I wonder if it will be deleted.

          • James Scott

            I am sorry if it comes off as a bit snarky too you.

            I guess I am like the person with a BA in evolutionary biology arguing with a High School Student with a handful of Young Earth Creationist anti-Evolutionist Tracts.

            The basic mistakes in science grade the nerves just as the basic mistakes in moral theory grade mine.

            I sometimes have little patience with people who don't know as much as I do on a particular subject of which I am broadly familiar.

            I should exercise more charity till it become apparent the ignorance in question is willful.

            So I apologize for the snark.

          • Max Driffill

            Its a bit of a game isn't it? Its like Orthodox Jews not turning a switch on the sabbath, but hiring someone to do so.
            There is no moral difference in thwarting fertilization with modern medical means or the less effective natural methods like withdrawal, or rhythm. The goal is to avoid children.

          • Michael Murray

            Yes I was thinking of my sabbath mode refrigerator as I was typing yesterday!

          • BrianKillian

            Speaking of games. Is there no difference between cheating and playing honestly if both players are trying to avoid losing?

          • Max Driffill

            Not a fair analogy I don't think. There is no difference in the type of strategies being employed (between birth control pills, condoms etc and NFP). Both attempt to foil reproductive processes by outsmarting them, both are trying to avoid creating a conceptus, one strategy is just working in a more technologically savvy, and efficient way, while the other is using older, less reliable tech.

          • BrianKillian

            Sure there are differences.

            Just as the cheater and the honest player both have different attitudes towards sportsmanship - which is pretty much what games are about - so does NFP and other methods of BC have different attitudes to what sex is about.

            NFP seeks to avoid pregnancy while also avoiding suppressing fertility, while other methods of BC seek to avoid pregnancy *by means* of suppressing fertility.

            NFP seeks to use the non-fertile periods already built into the woman's cycle, while other forms of BC impose infertility by changing that cycle.

            The good sport thinks it's important to be constrained by the nature of the contest, while the cheater considers it completely accidental to his purposes.

            There's a lot there to hang some moral differences.

          • David Nickol

            The good sport thinks it's important to be constrained by the nature of the contest, while the cheater considers it completely accidental to his purposes.

            Suppose there are two married couples, both of whom want to have four children, with two-year intervals between pregnancies. For Couple A, the woman has very regular cycles, and NFP is a very reliable method of birth control. For Couple B, the woman has a very irregular cycle, and NFP is extremely unreliable. So Couple A uses NFP and has four children, while Couple B uses some form of "artificial" birth control to have the exact same number of children on the exact same timetable.

            Let's suppose further that Couple A and Couple B are close friends, Couple A shares their information about fertile and infertile times with Couple B, and Couple B restricts their sexual encounters to exactly match Couple A's schedule for times when sex is permitted and times when not.

            Will God judge Couple A as virtuous and Couple B as sinful, and if so, why?

          • David Nickol

            Just as the cheater and the honest player both have different attitudes towards sportsmanship . . . .

            Is "cheating" always wrong? Suppose you are excellent at chess but you are invited to play your boss, who just hates to lose, or you are playing against one of your children, who is just learning to play and will be discouraged if he always loses, or you are playing against a dying friend in the hospital whose spirits you feel will be boosted if he wins. Is it wrong in any of these situations to allow yourself to lose when you could win?

          • Max Driffill

            There are no good sports in this. There are just people trying to avoid having a eggs get fertilized by sperm. Why don't you take this good sportsman approach to cancer? It is wholly natural.

          • Tim Dacey

            Proper moral and theological guidance is what I meant. But that's not to say that one's spiritual Father could be a trained physician.

        • James Scott

          Briefly I've read somewhere many Russian Orthodox theologians or Bishops condemn all birth control even Natural Family Planning where as the Greeks allow what you just outlined.

          That having been said I don't profess to be an expert on Eastern Orthodox theology. So take what I have just said with a grain of salt or a whole salt lick.

          I only know as a Catholic that artificial birth control is like eating then throwing up the food so you can stuff yourself again.

          You are separating the unitive end of sex from the procreative like separating the pleasure of eating from it's end as nourishment. That is never good.

          A Catholic can use Natural Family Planning if for a grave reason they need to space their children or avoid having them.

          I only have three children (all of them Autistic) and I never touched a condom. NFP works just as well as the artificial methods without the mortal sin.

          At this point I am more concerned with discussing the protecting of my civil rights to practice my faith rather then the justification of this particular.

          It's not my area of expertise. I am more of a metaphysics natural theology kind of guy & I love discussing the Problem of Evil which I believe Fr. Brian Davies has solved. I like is approach way way better then Plantinga.

          Classic Theism rule! Theistic Personalism bites!

          Cheers.

  • Greg Schaefer

    Here's the fundamental problem (there are so many with Justice Alito's majority opinion for the Court, but I'll just start with this one) with the outcome in the Hobby Lobby case.

    The human shareholders of Hobby Lobby and Conestoga Wood may have sincerely held religious beliefs regarding the morality of abortion; they may also have religiously-inspired beliefs about the point at which human life is created during the biological process of reproduction and thus have views (which may or may not be scientifically informed and coherent) as to whether certain methods of contraception effectively function as abortifacients for purposes of their religious beliefs regarding the morality of abortion.

    But, the human shareholders of Hobby Lobby and Conestoga Wood are not providing health insurance to the companies' employees. The companies are. The companies are legal fictions, created by the state, to allow for the aggregation of capital in the conduct of business while shielding the owners (shareholders) from personal liability for legal wrongs (tortious actions, breach of contract, strict liability where applicable, etc.) committed by the corporation.

    I've never heard of the legal fictions we call corporations, created under and existing only due to laws enacted by secular governments, as having an eternal soul, being capable of holding religious beliefs or "practicing" a particular religious faith, or ultimately being subject to judgment by a God imagined by that particular faith. (I am confident the Catholic Church, at a minimum, would deem such a view highly heretical.) The right granted by the First Amendment to the US Constitution to the free exercise of religion simply makes no sense in the context of commercial corporations, be they closely-held or publicly-traded or whether they were formed as for profit or non profit entities. Justice Ginsburg does address this in a portion of her dissent. While I don't agree with the entirety of Justice Ginsburg's analysis, her opinion occupies much sounder logical and historical legal ground than does the novel and potentially far-reaching ramifications of Justice Alito's unprincipled majority opinion.

    As there is no practical reason why it is meaningful to imagine that corporations like Hobby Lobby and Conestoga Wood -- as distinguished from their human shareholders, their human officers and directors who set their corporate policy and manage them, or their human employees -- can hold religious beliefs or practice a religion, the Court was wrong to conclude that Hobby Lobby and Conestoga Wood are "persons" within the meaning of the federal statute at issue in the case (RFRA).

    Importantly, this case was not decided under the First Amendment. If it had, unless the Supreme Court had been prepared to overrule scores of decisions in its First Amendment free exercise jurisprudence over the course of more than 135 years -- dating back to an 1878 opinion in which the Court held that a Mormon convicted of polygamy could not avail himself of the First Amendment's Free Exercise clause to exempt himself from prosecution under a criminal statute forbidding polygamy -- Hobby Lobby's and Conestoga Wood's free exercise challenge to the provisions of the ACA at issue here would surely have been rebuffed by the Court. After all, Justice Scalia, a very devout Catholic and a self-professed strong conservative on a wide variety of social, religious and political issues, authored the Court's 1990 majority opinion in the Employment Division v. Smith case.

    Greg Schaefer

    • James Scott

      Ginsburg is being silly. A corporation is a legal fictional person but it is controlled by real actual persons who have beliefs. It can't provide or fail to provide you birth control. Only the people who run it in it's name can do so and their rights are being violated.

      If because a Corporation is not a real person but a legal fiction therefore it can't via the persons who control it have a belief or free exercise of belief well then let's take this gun and turn it around. Planned Parenthood is a Corporation and not a real person with rights only a fictional person controlled by "pro-choice" people. It therefore has no right to exercise a belief in Pro-choice therefore I may dictate to it activities that go against it's controllers pro-choice agenda.

      Gindburg is sawing off the branch she is sitting on objecting to a Law that was passed by massive bi-partisan support signed by a Democratic President.

      additional: Even we Catholics have the idea of a legal fictional person. We try thinking with "the mind of the Church" well technically the Church doesn't have a mind in the sense I as an individual do.

      • David Nickol

        You are failing to note that there is more than one type of corporation. Hobby Lobby is a "closely held" for-profit corporation. Planned Parenthood is a not-for-profit corporation. Significantly different rules apply. Religious not-for-profit organizations are treated differently under the ACA than for-profit organization. The question in the Hobby Lobby case was whether for-profit corporations should receive religious exemption, something (to the best of my knowledge) they had never sought or received previously.

        To compare Hobby Lobby to Planned Parenthood is comparing apples to oranges. Actually, it is more like comparing apples to concrete blocks. Hobby Lobby, by their own description is "a retailer selling arts and crafts supplies, fabrics, baskets, silk flowers, needlework, picture framing, party supplies, furniture, and related items." Were the owners of Hobby Lobby to change their minds, or were they to sell to other owners, Hobby Lobby would be exactly the same company (particularly in the eyes of the law). The religious views of Hobby Lobby's owners are not essential to the business itself. However, as a not-for-profit corporation with a defined mission, contraception and abortion are an integral part of Planned Parenthood's mission. It is not that "pro-choice people" control Planned Parenthood. It is that anyone who works for Planned Parenthood is ethically and legally bound to carry out the mission for which Planned Parenthood was incorporated.

        Religious not-for-profits are already accommodated through regulations related to the ACA from directly providing and/or paying for contraceptive coverage for their employees. (Many are not happy about the accommodation, but it looks at the moment that it will remain the law.) It appears that Hobby Lobby, and potentially other closely-held for-profit corporations, will not receive the same accommodation as religious not-for profits.

        Ginsburg is being silly.

        In my humble opinion, Justice Ginsberg (as well as the other eight justices on the court) deserves more respect than to be called "silly." She is not silly, and much as I disagree with Roberts, Alito, Scalia, and Thomas in almost every decision where they make up four out of five of a five-person majority, I do not think they are silly or evil or deserving of being called names. I do think they are wrong and deserve vigorous criticism, but people with "silly" ideas don't make it on to the Supreme Court. So I advocate showing a little respect.

        • James Scott

          Calling Ginsburg silly is kinder then what I would call her to her face. I don't respect people like Bull Conner or Gov Wallace so I don't see any reason to respect someone who voted to take away my rights as a Catholic citizen.

          It is not going to happen. Ever so don't even ask.

          As too your arguments.

          Well first of all if what you are saying is true then why does the government want to make religious not-for-profit corporations buy birth control and or violate their rights and beliefs? A host of Catholic not-for-profit corporations are being forced by the government to buy or provide birth control for their employees against their beliefs. Since PP is a not-for-profit corporation and thus not a real person it still has no right to hold it's pro-choice beliefs. So my argument still stands.

          >Religious not-for-profits are already accommodated through regulations related to the ACA from directly providing and/or paying for contraceptive coverage for their employees.

          Not really the government is trying to make Catholic non-profit corporations like the Little Sisters of the Poor sign a piece of paper "giving permission" or directing insurance companies to provide birth control to their employees for free who want it. Or giving permission to their employees to receive free birth control coverage.

          Sorry but I cannot ever give anybody permission or directly recommend they do something I know to be inherently evil.

          At best I can matter of fact recognize they are already free to do evil without needing my permission but I can't condone it.

          If the Obama Administration where serious about accommodation then they would stay out of it and let the Sisters be Catholic and any employee of the Sisters Hell bent on using Artificial Birth control or whatever can do so at their own initiative without compelling any involvement of the sisters.

          • Greg Schaefer

            Hi James.

            Whatever one thinks of the ACA or Justice Ginsburg's dissent, no one is voting to take away your rights as a Catholic citizen. Nothing in the ACA or Justice Ginsburg's dissent forces you, or any Catholic woman for that matter, to use birth control who chooses not to do so.

            Moreover, the shareholders of Hobby Lobby and Conestoga Wood who caused their companies to bring these lawsuits are likewise not being forced to use birth control. Nor are they personally being required to purchase and provide to any of the employees of their companies any forms of birth control of which they do not approve.

            Rather, as pointed out in my reply to Danny Getchell below, once Hobby Lobby and Conestoga Wood elected to offer health insurance coverage to their employees, the ACA required that the health insurance policies include coverage for a number of forms of birth control approved by the FDA. Justice Ginsburg would have rejected Hobby Lobby's and Conestoga Wood's claims for a number of reasons, one of which is that she would hold that commercial, for profit corporations like Hobby Lobby and Conestoga Wood are not "persons" within the meaning of the RFRA.

            Greg Schaefer

          • James Scott

            >Whatever one thinks of the ACA or Justice Ginsburg's dissent, no one is voting to take away your rights as a Catholic citizen.

            Clearly you do since you made up this arbitrary rule if I run a for profit corporation I may not hold beliefs or run my own company according to my belief or the beliefs of the share holders.

            Mandating I provide contraception to others is no different then taking a "Pro-choice" owner of a company and mandating he distribute pro life literature to his employees.

            This is merely being an apologist for tyranny not liberty.

          • Greg Schaefer

            James:

            Hobby Lobby says nothing about an individual's right of free exercise of religion. It does not implicate the Hobby Lobby or Conestoga Woods' shareholders' (or yours, for that matter) right of free exercise of their religious beliefs, in their individual, personal capacities.

            Hobby Lobby does hold that a for profit, closely-held commercial corporation is a "person" within the meaning of the RFRA. Justice Ginsburg would not extend the rights of human beings to the free exercise of religion to for profit commercial corporations. In my view, her opinion, not the Court's majority, expresses the more sound legal position because, under the law, a corporation is a separate legal "person" from the shareholders who own the company, and there are sound reasons for treating a corporation differently from a human being when it comes to the issue of which "persons" are capable of holding religious beliefs and "practicing" a religion.

            I hold none of the views you attribute to me. You have the same right as any other American citizen to hold whatever religious beliefs you choose and to practice your religion. I would defend those rights, even if my own personal views differ from yours. Moreover, I am unaware of any provision in the ACA that would purport to require any individual American who does not believe in contraception to purchase and provide contraceptives to anyone.

            But, I don't believe anyone who chooses to take advantage of the ability to incorporate and to conduct business in the name of and under the separate legal status of the corporate entity should at the same time be permitted to disregard the separate legal status of the corporate entity and assert what of course are his or her own individual religious beliefs as supposedly also being the religious beliefs of a for profit commercial corporation.

            This isn't really complicated. It's a matter of consistency in treating corporations as the separate legal persons they are from their shareholders for all purposes, not allowing the shareholders to pick and choose when they wish to assert the separate legal status of the corporation when it is in their interests to do so (i.e., as a shield against personal liability for actions of the corporation) and when they would rather disregard it, as happened to be the case in Hobby Lobby.

            I advocate for liberty, not tyranny. But liberty applies to all human members of our society, even those who have views radically different from yours.

          • James Scott

            >Moreover, I am unaware of any provision in the ACA that would purport to require any individual American who does not believe in contraception to purchase and provide contraceptives to anyone.

            This very case did so. The Hobby Lobby corporation owned and operated by this Christian family is ordered by Sebellius to provide insurance that covers birth control devices that cause abortions in direct violation of their religious beliefs.
            Prior to Obummer taking power this was unheard of & companies enjoyed freedom of religion.
            All corporations profit or non-profirt have an absolute right to assert a religious view to reflect that of their majority owners.
            The idea that they are merely virtual persons vs actual is irrelevant. Wither or not they are for profit or non-profit as well is irrelevant. Because if religions liberty is not given to them then the Federal Government has unlimited right to dictate to them actions that go against the conscience of their owners. An Atheist who owns a for profit business can be forced against the owners will to participate in religious activity or pro-life activity. If you protest "Separation between Church and state" one can always reply "Those rights only belong to real persons not virtual ones".

            So an individual atheist can claim he can't be forced to participate in religious activities or Pro-life ones if he is "pro-choice". But his for profit company or corporation can if we are consistent here.

            No Ginsburg suports tyranny here.

            If your work for me or any company I own or corporation I own the majority share in you have absolutely no right to force me to provide you with birth control. You can get it yourself with your own money cheap rather then force yourself on moi.

          • Greg Schaefer

            James:

            You write: "This very case did so."

            This is incorrect.

            The applicable provision of the ACA under challenge in the Hobby Lobby case applied to employers having 50 of more full-time employees. The health insurance policies at issue were offered by the corporate entities -- Hobby Lobby, Conestoga Wood, and Mardel, which I'll refer to collectively as the "Companies" -- which were the employers, and not by the Companies' shareholders -- the Greens and Hahns, whom I will refer to as the "Shareholders" -- in their individual capacities.

            At issue in the Hobby Lobby case is whether the three closely-held Companies who offered health insurance policies to the Companies' employees, as legal entities separate and distinct from the Shareholders, are "persons" covered under the RFRA and, as legal persons separate and distinct from their Shareholders, were entitled to assert a right under RFRA to exercise religious freedom.

            The Court's majority held the Companies were "persons" covered by RFRA; Justices Ginsburg and Sotomayor in their dissent would hold they are not. As previously indicated, I believe the dissent has the better of the legal argument on this issue.

          • James Scott

            Clearly it is correct according to the correct ruling by the majority.

            The dissent view is pure fascism, pure tyranny and pure extremism.

            So a private corporation owned by Jews or Muslims that sells either Kosher or Halal foods can be forced to sell pork products since the corporation is a for profit company and it is not really a person legally so it has no right to be Jewish or Muslim and follow Jewish or Muslim dietary food laws?

            What left wing extremists like Ginsburg are doing is creating out of thin air a run around for the First amendment and the RFRA.

            It is despicable and un-American as are partisans who favor this form of tyranny.

          • Greg Schaefer

            James.

            It makes no difference if the corporation's shareholders are Catholics, Mennonites (the Conestoga Wood shareholders, according to the Supreme Court opinion), Protestant Christian (the Hobby Lobby shareholders, according to the Supreme Court opinion), Jewish or Muslims. Under the law, a corporation is a separate legal person from its shareholders under the law.

            Our dialogue makes clear that we have radically different views on the issue of whether it makes any sense to imagine that a commercial corporation, whether of the for profit or non-profit variety and whether publicly or closely held (and, as opposed to a Church or other expressly designated religious organization/corporation), can exercise a religion or hold religious beliefs.

            Whether any government could "force" a private corporation owned by Jews or Muslims selling Kosher or Halal foods to sell pork products would, I submit, be more profitably analyzed in the terms of the government's enumerated powers and the rationale offered by the government for such regulation than by whether such a private corporation is a "person" that "holds" Muslim or Jewish religious beliefs by virtue of the fact that it has human shareholders who are practicing Jews or Muslims.

            The balance of your response, with its overheated rhetoric and name-calling, suggests we've passed the point at which further dialogue offers any chance of being constructive.

          • James Scott

            I am sorry but I am a right winger who learned about civil liberty from left wing professors who unlike modern left wingers who are drunk with power and hope and change would have rather died then force me to act against my conscience.

            I see no reason to be kind to the defense of the indefensible.

            I have rights and the right to swing your hand ends at the tip of my nose.

            By trying to force me to buy you birth control which you are free to get yourself without substantial burden you are touching my nose.

            I will not tolerate that.

          • Greg Schaefer

            James:

            You write: "All corporations profit or non-profirt [sic] have an absolute right to assert a religious view to reflect that of their majority owners."

            While that may reflect your belief in the way things ought to be, that is not the law. The Hobby Lobby decision does not support that assertion, either. Hobby Lobby holds only that closely-held corporations are "persons" entitled to the free exercise of religion under RFRA.

          • James Scott

            A Red Herring!

            Since when is there any law that says if I own a corporation I give up my religious rights? There is none. If because corporations are only "persons" on paper & don't deserve full religious rights like a real person then that swings both ways. No Pro-"Choice" person or majority persons who owns a private corporation can say no to a government that tries to compel them to distribute pro-life or anti-abortion literature too their employees against their will.

          • Greg Schaefer

            James.

            Not so.

            Here, again, the issue would have to be analyzed in terms of whether any such statute/regulation fell within the government's enumerated powers and the rationale offered by the government for such regulation. In this hypothetical you propose, the First Amendment right of free speech would also be implicated. So, I think it would be highly unlikely that a court would uphold such a statute/regulation.

          • James Scott

            So you support a tyranny that would allow a government to force Pro-choice persons to buy and provide pro-life literature for their employees?

            Can I also force PLAYBOY Magazine to provide educational materials on chastity while I am at it?

            It is funny how this Catholic who belongs to a Church that wants to take away people's rights thinks that is just wrong even thought I am anti-porn and pro-life.

          • Greg Schaefer

            James:

            My answer to both of your questions would be "no."

            First, I note my disagreement with your use of the term "tyranny." It calls to mind Inigo Montoya's inimitable response to Vizzini's repeated invocation of "inconceivable" in The Princess Bride: "You keep using that word. I do not think it means what you think it means." According to my Oxford English Dictionary, "tyranny" means (1) rule by a tyrant or usurper, (2) cruel or oppressive government or rule, (3) arbitrary or oppressive exercise of power, or (4) violent or lawless action.

            Obama is not a tyrant; he is the duly twice-elected President of the United States who obtained a clear majority of the votes of those Americans who chose to vote in both 2008 and 2012. While you may disagree with the ACA, it is not arbitrary nor was it imposed by violence or lawless action; it was passed after more than a year of extensive debate by both houses of Congress and signed by the President in accordance with the process established in the Constitution for the passage of federal legislation.

            I do not doubt that you disagree with most of the policies that Obama has pursued or with the few major pieces of federal legislation enacted by the Democratic-controlled Congress in 2009-10, before the GOP retook control of the House after the 2010 election. Your substantive disagreement with public policy adopted through democratic processes laid down in the US Constitution does not, however, render such policy tyrannical or mark Obama as a tyrant. After all, most of those who hold political and social views characterized as very liberal have suffered through almost 40 years of unresponsive government almost wholly indifferent to their views under the Administrations of Nixon, Ford, Carter, Reagan, Bush 41, Clinton, Bush 43 and now Obama, and a federal government that has effectively done the bidding of corporate America and the extremely wealthy for going on 35 years now, but that does not mean we've lived under tyranny in this country over that period.

            Your first hypothetical implicates the First Amendment's guarantee of the right of freedom of speech (as well as issues I've articulated elsewhere in our dialogue such as whether such a statute would fall within the government's enumerated powers and the rationale the government advanced for enacting such a statute), and the First Amendment should foreclose action by the government seeking to compel individuals to advocate/speak in substantive ways that the individual disagrees with.

            By the way, my answer would be the same if your hypothetical posited the government "forcing" so-called "pro-life" persons (I use that phrase only because it has become a short-hand identifier of where a person is likely to stand on most facets of the abortion debate in this country and not because I agree that the basket of religious views typically held by many on that "side" of the abortion debate are actually "pro-life" in many meaningful ways although they may be "pro birth") to buy and provide "pro-choice" literature for their employees.

            In your second hypothetical, you, as an individual, would have no ability whatsoever to force Playboy Magazine to do anything. But, assuming you intended to refer to the government and not yourself, the answer would be "no" for the same reason I articulated for the first hypothetical.

            Again, by the way, my answer would be the same if your second hypothetical posited the government "forcing" the Catholic Church to include educational materials endorsing abortion or same sex marriage along with the bulletin distributed to its parishioners at Sunday mass.

          • James Scott

            So why do you wish to force me to buy you birth control you can freely get yourself? You are free to buy the birth control and believe it's use is moral. But if I believe it sinfully perverts the natural use of the heterosexual sex act why must I be forced to directly participate in that and not opt out?

            Why?

            Prior too 2008 this was not an issue. The federal government did not try to force people to act against their faith in such a petty fashion.

            How is this not "an arbitrary or oppressive exercise of power."?

            It clearly is and Obummer has betrayed the whole civil liberty tradition of liberalism by doing it.

            In fact he is properly a leftist not a true liberal.

          • Greg Schaefer

            James:

            You write: "You [an employee] can get it [birth control] yourself with your own money cheap rather then force yourself on moi."

            But this essentially ignores that health insurance, under the commonplace model in the US in which employers offer private health insurance company issued and administered policies to their employees, is fundamentally part of the total compensation the employer is paying the employee and thus is functionally the employee's "own money."

            The fact that this issue has turned into such a sore point for many religiously devout is just one more reason why we ought to move away from our current employer-sponsored, private health insurance company issued health insurance policy system to a single payer model -- effectively, Medicare for all citizens -- in which every US citizen is afforded health care as a matter of right, funded by our taxes.

          • James Scott

            Sorry no I sold insurance. There is a difference between the owner of the policy vs the beneficiary, The company owns the policy & you are forcing them to buy policies that contain immoral services. The employees are merely the beneficiaries. If they owned their own policies then there would be no issue since they would be providing themselves with the BC and not forcing the owner to do it.

            Medicare is tax supported. Taxes are the money I owe the government to pay them for governing. It's like if I pay a guy to mow my lawn & he takes the money and buys porn with it which I consider immoral I am not providing him with porn. But if the government ordered me to skip the middle man and pay this guy directly with porn then I am a direct participant in evil.

            So I can pay taxes and may pay taxes to the government & if they pay for abortions I am not a direct material participant in evil if I am not doing the evil directly.

          • Greg Schaefer

            James:

            Your view, "you [I presume you mean HHS, in this context] are forcing [the company] to buy policies that contain immoral services," might reflect the religious or moral views of some or perhaps even all of the corporation's shareholders that some forms of artificial birth control are immoral given their religious beliefs.

            But, that doesn't mean the employees of the company share the same religious views as the company's shareholder(s). Those employees have rights, too.

            In a complex society like the US, part of what government does is to balance the competing rights and interests of the many constituents of our society -- including our human citizens, institutions like corporations, foundations, and universities, and the various branches and agencies of federal, state and municipal governments -- given the complex maze of federal and state constitutional provisions, federal and state statutes, and federal, state and municipal regulations and ordinances.

            No one is saying that the Greens and Hahns (the shareholders of the three corporations involved in the Hobby Lobby case) or you, James Scott, don't have the right to hold whatever religious beliefs or to belong to whatever religious faiths/traditions they or you choose, or to decide for yourselves whether to use artificial means of birth control or to have abortions. But, they (and you) also don't get to dictate that others adhere to their (or your) religious beliefs and that others conform their lives to the dictates of their (or your) religion's doctrines and dogmas.

            That anyone is free to choose not to use any forms of artificial birth control they find objectionable, based on religious beliefs, does not give them the right to foreclose others who don't hold those same religious beliefs, and who, in fact, may strongly disagree with those beliefs, from using them.

            I accept your explanation, based on your expertise, that a company may be the owner and its employees merely beneficiaires of health insurance policies sold by private health insurance companies. But, that hardly changes the substance of the issue, to my way of thinking, that the provision of such health insurance functionally operates as part of the employee's total compensation package, and thus represents the employee's "money."

            As noted above in my earlier comment, I agree that the employer-provided system of health insurance we have in this country -- through which the great majority of Americans who receive health care obtain their health care -- is serving us poorly, and should be abandoned. My preference would be to move to a single payer, "Medicare for all" system. But, to the extent that cannot happen in this country for obvious political reasons, the ACA, which offers individuals the opportunity to purchase individual policies through state-administered exchanges which ought to be more affordable than is the case at present for any individuals/families who seek to purchase policies on their own, is a step in the right direction.

          • James Scott

            .>But, they (and you) also don't get to dictate that others adhere to their (or your) religious beliefs and that others conform their lives to the dictates of their (or your) religion's doctrines and dogmas.

            So because I deny you have the right to force me to buy you birth control then I am somehow dictating to you what to believe what to believe about it?

            That is just extreme.

            I have news for you if I worked for Richard Dawkins himself & recognized I have no right to demand he pay a Mass Stipend to my Priest for the souls of my dead relatives and friends that doesn't mean I have been forced by him to become an Atheist & deny the efficacy of the Holy Mass.

            It is you fascist left wingers here who are forcing your will on me. Not the other way around. You can still buy birth control and believe it to be moral. I will not buy it for you upon pain of death and I don't believe it's use is natural.

            Live with it. It's called freedom.

          • Greg Schaefer

            James:

            Your name-calling and resort to vituperative, over-heated rhetoric in the threads to this article speak volumes to your apparent lack of capacity to carry on a productive and respectful dialogue with those with whom you disagree. While it may be de rigueur among a certain set of "right wingers" -- as you have referred to yourself -- such as those who routinely call in to the Limbaugh, Hannity or Levin AM talk radio programs to vent in such hyperbolic, detached-from-reality, evidence-free fashion, I find it rude and inappropriate in this forum and, in my view, contrary to this site's Commenting Rules and this site's stated goal of seeking to encourage respectful and serious dialogue.

            To that end, if you wish to reconsider your approach, I'm happy to carry on our dialogue. But, if you continue in the same vein as this and several other of your comments from earlier today, I will no longer engage with you. Life is far, far too short.

            I've never said anything in the comments to this OP, or in our extensive back and forth, to suggest that I believe I have any right to force you to buy me (or anyone else) birth control. Nor do I believe that. Stop making things up.

            As to which "side" is intolerant and seeks to impose their religious beliefs/doctrines, social views and "will" on others, restricting the "others'" freedom and liberty, I'd invite you to focus some of your attention on some of the efforts of the Catholic Church/USCCB in this country in recent decades with respect to religious freedom and freedom of conscience for those who are not Catholic.

            The Catholic Church was one of the principal sponsors and financial backers in Minnesota in 2012 of a proposed (state) constitutional amendment that would have precluded same sex marriages in Minnesota. I believe the Catholic Church, along with the Mormon Church, was also one of the principal sponsors and advocates for Proposition 8 in California in 2008 that amended the California Constitution to preclude same sex marriages in California before that amendment was struck down by the federal courts as violative of equal protection (another cherished constitutional right).

            Can you point me to any serious "liberal" organization in the country that is seeking to require any person who prefers to marry a person of the opposite sex to instead be forced to marry a partner of the same sex? Can you point me to any "liberal" organization or any serious governmental effort that would purport to require any religion to solemnize and recognize same sex marriages under canon law if the religions's doctrines oppose same sex marriage?

            Which institutional religion do you suppose is one of the chief sponsors and/or advocates for the inundation of state legislation in recent years seeking to chip away at the constitutional right to abortion in the US?

            Which institutional religion do you suppose has been one of the most ardent backers in the past couple decades of the proposed "personhood" amendments to the US Constitution that would seek to ban all abortions outright?

            Which institutional religion do you suppose would be the most vociferous advocate seeking overruling of the Griswold line of cases in the Supreme Court and pushing new state and federal laws banning artificial means of birth control, if it believed it possible to put together a coalition of other institutional religions and "social conservatives" wishing to reinstate such laws?

            In contrast, political liberals like myself, whom the tone and tenor of your comments make clear you so ardently despise, will defend your rights to hold whatever religious beliefs you wish and to worship in whatever religious faith tradition you choose. I would defend your (or any Catholic who adheres rigidly to Catholic doctrine and teaching) right not to be forced against your will to (i) undergo an abortion, (ii) use artificial means of birth control, or (iii) marry another person of the same sex.

            So, yeah, I am confident that actual efforts to enshrine religious dogmas into secular law and to restrict the freedom and liberty of "others" who do not hold the same religious beliefs and doctrines on all the hot button wedge issues so cherished by the "Religious Right" in this country over the past forty years is a concern properly laid at the doorstep of doctrinaire, dogmatic, proselytizing and non-tolerant religions rather than at the doorstep of political and social liberals who are far more tolerant of the views and rights of others who think and believe differently than they.

            I'm hardly making this up.

            It is the Catholic Church that teaches that abortion, use of artificial means of birth control and same sex marriage/engaging in homosexual relations are intrinsically disordered acts that constitute grave moral evils.

            It is the Catholic Church that proudly asserts its stand for non-tolerance as to matters covered by its religious dogmas, based on its beliefs regarding the existence and nature of God and the Church's view of eventual divine judgment.

            In contrast, political/social liberals may disagree with these religious beliefs but, by and large, most of them recognize that Catholics, and members of other religions/faith traditions, are free to believe as they wish and to live their lives in accordance with their own consciences informed by their religious beliefs and their religion's dogmas.

            As to Richard Dawkins, I've never once mentioned Richard Dawkins in any of my comments. But, since you bring him up, I have read all but two (The Selfish Gene and The Extended Phenotype) of his dozen or so books in their entirety. From my perspective, The God Delusion is far and away the weakest, the least thought-provoking and the most tendentious in Dawkin's oeuvre. Within his academic sphere of expertise, evolutionary biology, I find Dawkins to be incredibly lucid, imaginative, a spell-binding story teller and narrator, and one of the most coherent, accessible exponents of modern-day evolutionary biology for the non-specialist audience.

            As to the concept of supposed "fascist left wingers" I suggest you spend some time seriously reading some history of the actual fascist movements in Spain, Italy and Germany in the first half of the 20th Century. Those fascist movements were essentially movements of "right-wing" conservative elements and large corporate interests in those societies, who tended to despise democracy and the rights, freedom and liberty interests of the common, ordinary citizens in their societies.

            The tone, derision and contempt your comments display for those who are not members of your "tribe" and who think differently that you do is unfortunately representative of why our society has become so dysfunctional over the past few decades. Issues that you continue to portray as being childishly simple and cut and dried are rarely so. Such binary, black and white modes of thinking don't accord basic dignity and respect to views and values held by others in this society in good faith, who also seek truth, desire to live good, decent, moral and meaningful lives and who respect and extend empathy and tolerance to others who don't think as they do.

            I hardly think that approach fairly represents the teachings and message of charity and respect for others that some think was among Jesus' core teachings and which Pope Francis appears to have been striving to convey in the first year of his papacy in order to reach out to the universal brotherhood of humanity, seeking conciliation and the common interests that could unite all of us rather than promoting messages of hate and divisiveness.

            I hope you will reconsider the manner in which you engage others who don't think as you do. To the extent you are genuinely interested in understanding others, and seeking to engage with the goal of changing hearts and minds, your current approach is exceedingly unlikely to get the job done.

          • James Scott

            >Your name-calling and resort to vituperative, over-heated rhetoric in the threads to this article speak volumes to your apparent lack of capacity to carry on a productive and respectful dialogue with those with whom you disagree.

            There are some views which are so sicking to me I don't treat them as anything but sickening. Holocaust denial, anti-Semitism, racism. sexism, homophobia and trying to force me to buy others birth control by making me buy health insurance that provides birth control for persons who work for me would be the short list. Persons who can buy their own riders and frequent TARGET without forcing me to be a direct material participant in evil are Ok with me.

            Why are the people on the left so adamant about forcing me to buy them birth control? This wasn't a problem prior to 2008. Many liberals used to stand for civil liberty. They are now the exception not the rule.

            As a conservative I am against an expanded welfare state and single payer health care etc... However as a Catholic I need not support or oppose these endeavors as they are not matters of faith or morals but prudent political judgement.

            Politics doesn't so much concern me as civil liberties.

            What I am concerned with is civil liberty & the left is fighting like hell to suppress mine. BTW I don't agree that Fascism is a "right wing" ideology it's socialism with a few tolerated Captialists favored by the State.

            I brought up Richard Dawkins to answer the weird claims that I am forcing my beliefs on others by refusing to provide them with that I view as immoral.

            >I've never said anything in the comments to this OP, or in our extensive back and forth, to suggest that I believe I have any right to force you to buy me (or anyone else) birth control. Nor do I believe that.

            But you do believe if I own a private business and you happen to work for me you can force me to buy you birth control by buying insurance that covers it if I have 50 employees or more or do you not? Or better still if I own a corporation that you work for you can force my Corporation buy you birth control by buying a health care policy that includes it instead of excluding it or do you not?

            Do you or do you not in fact believe this? Because if you do then you clearly believe in forcing me to buy you birth control as far as I am concerned. How can it logically be otherwise?

            >The Catholic Church was one of the principal sponsors and financial backers in Minnesota in 2012 of a proposed (state) constitutional amendment that would have precluded same sex marriages in Minnesota.

            That is not equivalent. Not giving you(& by "you" I am being hypothetical I don't know or care about your actual personal life. It is none of my affair.) a piece of paper calling your long term sexual relationship with someone of the same gender "a marriage" is not the same as being compiled to perform an action against one's conscience.

            If I had to choose between the State calling all Catholic marriages (including my own) "Domestic Partnerships" on a piece of paper vs being told I have to provide someone with birth control I would choose the former not the later. I would have more freedom under the former then the later and I would not be compelled to sin. I could care less what the State thinks of my Marriage. Only the Church's mind in this matter means anything to me.

            I would be more open to tolerating same sex marriage(after all I tolerate divorce and "re-marriage" between baptized persons which is a sin) if it wasn't for gay fascists running around trying to force photographers who refuse to photograph same sex weddings or bakers who refuse to bake cakes for a same sex wedding. I would never tolerate a gay baker being made to bake a cake for the Westburro Baptist loonies. Why don't Christians get the same consideration?

            >I find Dawkins to be incredibly lucid, imaginative, a spell-binding story teller and narrator, and one of the most coherent, accessible exponents of modern-day evolutionary biology for the non-specialist audience.

            No argument but his critique of the Five Ways of Aquinas are as intelligent as reading Kirk Camron expound on Evolution.

            Actually he is less intelligent. Kirk is not a Professor at Oxford so what is Dick's excuse?

            >It is the Catholic Church that teaches that abortion, use of artificial means of birth control and same sex marriage/engaging in homosexual relations are intrinsically disordered acts that constitute grave moral evils.

            But even then they are not all equivalent sins. Abortion is murder. I would be pro life even if I was an Atheist. In fact as an Atheist Pro-lifer once quipped "Abortion is worst in a godless universe because this life is all you get and murdering an unborn baby denies them their only shot at it."

            There is no after life where the aborted can go too.

            Birth control and homo-sex and same sex marriage don't harm the innocent. The sinners in those cases choose to sin .No innocent is being harmed.

            >Pope Francis appears to have been striving to convey in the first year of his papacy in order to reach out to the universal brotherhood of humanity, seeking conciliation and the common interests that could unite all of us rather than promoting messages of hate and divisiveness.

            Obviously you never read up on his head buttings with the Socialist President of his country over Abortion, same sex marriage and gay adoption.

            > hope you will reconsider the manner in which you engage others who don't think as you do. To the extent you are genuinely interested in understanding others, and seeking to engage with the goal of changing hearts and minds, your current approach is exceedingly unlikely to get the job done.

            Yes I would care to understand a big government advocate & his different economic political philosophy form mine but I don't care to understand a holocaust denier or a racist or a person who is hell bent on forcing me to buy them an insurance policy the provides birth control when they can provide this nonsense for themselves.

            The later seems obviously wrong that any fair liberal minded person should be able to see it.

          • Greg Schaefer

            James:

            You write: "No Ginsburg suports tyranny here."

            I understand that many who hold views on religious, social and political issues that are commonly labelled in the US as being "conservative," egged on by pundits on Fox News and AM talk radio, are wont to charge those who hold opposing views as supporting "tyranny." Such overheated rhetoric may work wonders for "issue advocacy" interest groups that depend on inflaming their "base" to keep the dollars flowing into their coffers, but almost never does much to advance the cause of meaningful, serious, respectful discussion of substantive policy.

            While the First Amendment guarantees all Americans the right to the free exercise of religion, many of those who are fervently devout and deeply religious and rightly demand the right to exercise their religious rights seem not to be as solicitious to the rights of others who have very different religious beliefs, or no religious beliefs whatsoever, likewise to conduct their lives in accordance with their own conscience unburdened by religious beliefs, doctrines and dogmas they reject.

            No law in this country is forcing any Catholic -- or a believer in any other religious tradition/faith holding similar views on such issues -- to use birth control, to undergo an abortion, or to marry another person of the same sex, to focus on three of the "hot button" religious doctrines of the Catholic Church that have received so much focus from the USCCB over the past four decades in this country and particularly in the heightened "culture wars" of the past couple decades. By the same token, neither the Catholic Church nor any individual Catholics have the "right" to seek to impose their religious beliefs/doctrines with respect to these issues on others who don't share those same religious beliefs.

            Justice Ginsbug's approach is the one better suited to tolerance and balancing the rights of a complex and highly diverse citizenry with wildly disparate views on all of these issues.

            After all, it is one thing for the hierarchy of the Catholic Church to promulgate and teach to adherents of the Catholic faith its own religious doctrines maintaining that the use of artificial means of birth control, abortion, and gay and lesbian's exercise of their sexuality and same sex marriage are "intrinsically disordered" and constitute "intrinsic moral evils."

            It is quite a different thing when the Church seeks to lobby the federal and state governments to pass secular laws (or constitutional amendments) outlawing abortion, the use of artificial birth control, same sex marriage, and same sex consensual relations in a country in which a substantial (and indisputably a majority on at least some of these issues) segment of the citizenry disagrees on these issues and in which we have Constitutional provisions that prohibit the government from establishing a religion, from certain forms of discrimination, and in which all citizens are guaranteed the rights to free speech, press, assembly, due process and equal protection.

            Viewed from this perspective, it would seem that if the Catholic Church was ever to succeed in the latter efforts -- effectively enlisting the government to impose Catholic religious beliefs on others and to enshrine Catholic religious dogmas into secular law in which those dogmas will be binding on others -- that would be a far better marker of tyranny than are Justice Ginsburg's views in her dissent in the Hobby Lobby case.

          • James Scott

            Dude!

            You are STILL free to buy your own birth control but you are not free to make me buy it for you!!!!!!

            It's that simple and it seems lefty bigots who run around lying that the Supreme Court outlawed birth control the same morons who are watch MSNBC can't seem to understand that simple truth.

            Also bogus bigoted & slanderous accusations that Catholics are trying to take away the rights of others or impose them on others is irrelevant to the issue at hand.
            Nor is trying to imply that because they are allegedly trying to do this they don't deserve equal protection under the law helpful.

            It is also logically stupid. Let us say for arguments sake all your tangential blather is correct. By un-reasonably denying me my rights by forcing me to buy you birth control you are legitimizing omnipotent government power for Catholics or other phantom boggy men to take away your rights.

            Is it not better to protect everyone's rights?

            Ginsburg is not doing that here.

          • Greg Schaefer

            James:

            You write: "If I own it then it's "Catholic", No and's, if's or but's. It is that simple."

            But, it's not that simple. That's not the law. If you choose to incorporate, under a state or federal statute authorizing a corporate form for doing business, you are creating an entity that, under the law, has a separate legal status. The corporation is not "you" and "you" are not the corporation. The "state" offers those who elect to form corporations in which to conduct their businesses significant advantages, among which are limited personal liability and (theoretically) perpetual existence (for the business) that are not available for those carry on their business in the form of sole proprietorships or general partnerships. Whether a corporate "person" should be afforded statutory or constitutional rights and protections that apply to human beings is an issue that has to be analyzed in context as issues arise.

            You also write: "If you incorporate a Church then that Church is the religion of those who incorporate it."

            That may well be. But, the ACA contains provisions that expressly exempt "Churches" and "religious organizations" -- like the Catholic Church -- that meet certain criteria from its scope.

          • James Scott

            Beg the question much? Where does the Law say I may not run a private corporation I own according to my private beliefs? It doesn't. If I don't want to provide you with birth control or sell pork that is my affair.

            How dare you interfear with that?

            The Law doesn't say that anywhere. I own the corporation I control it & it does my bidding. End of story. That it affords certain protections to me does not translate into me giving up my civil rights because I own it. That is a novelty invented by Ginsburg and other lefties who see citizens as servants of the state.

      • Greg Schaefer

        You are free to disagree with Justice Ginsburg's analysis and conclusions, as five of her fellow justices did in Hobby Lobby; while she may be wrong -- although in my view she is right -- she is hardly being silly.

        All the actual humans involved with a commercial corporation, the shareholders, directors, officers and employees are entitled to their religious beliefs and to express their opinions on such things. But that is in their individual capacities.

        It makes little sense to posit that any commercial corporation itself can have any religious beliefs and that is what is at issue in Hobby Lobby. A commercial corporation can't get pregnant, it can't choose to use or not use birth control, it has no need for health insurance. There is no real sense in which Hobby Lobby or Conestoga Wood, as the separate, fictional "persons" that they are under the law, have any separate legal rights, as persons, to practice any religious faith or to "hold" any religious beliefs.

        What the shareholders of Hobby Lobby and Conestoga Wood are doing in this instance, and what the Supreme Court has now wrongly sanctioned in its decision in the case, is seeking to invoke the benefits provided under the law due to the separate fictional legal status given to corporations (i.e., the protection/shield afforded to human shareholders by limited personal liability as well as the theoretical perpetual existence chief among them) sometimes in certain contexts when they conclude that it is in their benefit to do so but while also seeking to disregard the separate fictional legal status of the corporation and pretend that their own individual religious beliefs and their own individual personal rights under the First Amendment to the free exercise of their religion can be attributed to the corporation at other times and in other contexts when they conclude that is in their personal interests. The law should not countenance such inconsistent behavior, and the self-dealing nature of human shareholders deciding when to invoke and when to disregard the separate legal status of the corporate entity under which they have chosen to their business.

        This is also the reason why the law can permissibly treat commercial corporations differently from churches in this area. While a church -- at least a hierarchical, top-down, clerical church like the Catholic Church -- can legitimately claim to be an association of like-minded believers adhering to a common core of doctrinal beliefs, that will only incidentally and probably exceedingly rarely in the real world be the case with respect to commercial corporations, which typically can be expected to include among their human owners, officers, directors and employees a broad variety of individual beliefs and views on the topic of religion.

        This is why the individual religious rights/beliefs of the shareholders of Hobby Lobby and Conestoga Wood are not being violated by the provisions of the ACA they challenged.

        Greg Schaefer

    • If the majority of a company is black, the company can be treated by law as a black person. Do you think it wrong that a company can have a race?

      If 100% of the owners of a company are Catholic, is it that absurd to treat the company as Catholic?

      • James Scott

        I hate to nit pick a fellow Scot(mind you I am 200 years removed from our ancestral land unlike a native like you).

        How is being black a belief? It is a secondary physical characteristic of homo sapient sapients who presently live or are recently descended from those who originate from west Africa.

        Freedom of Religion and conscience protect beliefs (or choosing not to have any if you prefer which by paradox is still a belief).

        But that having been said a company with a majority of Blacks who own it can be "black" in that they all collectively agree to back black political causes, soclal causes and or beliefs held commonly by most blacks.

        Cheers.

        Don't mind me,.

        OTOH now that I think about it some more? A company is a virtual person so why can't a company owned by a majority of blacks be a virtual black person if the owners so will it?

        Hey I just refuted myself!

        That doesn't happen often.

      • Greg Schaefer

        Hi Paul.

        A corporation has no race. That remains true even if every single one of the corporation's human shareholders, directors, officers and employees happens to be of the same race. I'm neither a professional biologist or anthropologist and so you will have to forgive me for not speaking to this particular issue from a technically accurate scientific or sociological perspective, but I understand race to be a construct that some use as a means to categorize a group of humans sharing sufficiently similar physical characteristics. It is simply a non-starter, I would think, to apply race, in this sense, to a fictional legal entity like a corporation.

        Your hypothetical in the second paragraph positing a commercial corporation all of whose shareholders are Catholic moves the case closer to actual religious institutions, such as the Catholic Church, although your hypothetical still does not speak to the religious status of all of the corporation's other constituents, by which I mean its officers, directors and employees.

        But, from a policy perspective, even if every one of a commercial corporation's constituents happens to be a believer in the same religious faith tradition, that should make no difference in the result in these cases. The fact remains that every commercial corporation is a separate legal person from its human shareholders, officers, directors and shareholders, and there is no inherent reason that specific rights that have been guaranteed to human "persons" under a Constitution or a statute must necessarily be afforded to fictional legal "persons" like commercial corporations.

        While it may make a great deal of legal sense to afford a commercial corporation some legal rights guaranteed by a Constitution or granted under a federal or state statute, that ought to be analyzed in each specific context and, as noted in my first comment in this thread, I can see no reason why the law in this country should treat any commercial corporation as a "person" that can hold religious beliefs, practice any particular religion and thus having any interests protected by either the First Amendment's free exercise clause or the RFRA. That is one of the reasons why I find Justice Ginsburg's dissent much more persuasive legally than Justice Alito's opinion for the majority.

        Greg Schaefer

        • I can imagine a case: Say that each year a government grant is handed out to a particular small non-profit organisation, to help support their work. Two non-profit companies apply for the grant every year. One's run by mostly Protestants (A) and the other by mostly Jews (B). Non-profit A always wins the grant, year after year, even though objectively non-profit B more closely meets the list of standards. The grant committee gives the same reason for choosing A over B every year: they are allowed some discretion in their decision, and they don't particularly favor various corporate practices of non-profit B, such as having employees work on Sundays, and offering a kosher meal plan. For these reasons, they always give the money to A instead of B.

          Is this anti-Semitism, since it's directed at something that's not even a person (let alone a Jewish person)? Any anti-Semitic attitude doesn't seem to be connected to the companies themselves. After all, the prejudices of the committee don't directly harm the employees (since they couldn't receive the money anyway), but only directly harm non-profit B. But non-profit B isn't Jewish, because companies can't have a religion.

          Do you think that, in this case, companies should be able to have a religion under the law?

          • Greg Schaefer

            Paul:

            No, to both of your questions.

            As to your first question under your hypothetical, I note that both non-profit A and non-profit B are, under the law in the US, legal "persons." But, there is no reason to think of non-profit B as being a Jewish "person" or, as a "corporate person," being capable of holding Jewish religious beliefs or following Jewish laws, even if most of non-profit B's officers, directors and other employees are themselves observant Jews.

            From a Catholic perspective, I would think it important to note the following characteristics, at a very basic minimum, that distinguish corporate "persons" from human beings:

            (1) corporations are created not by God, but by human beings acting in accordance with statutes passed by governments formed by human beings;

            (2) corporations have no "soul";

            (3) because corporations are incorporeal entities, they are not affected by original sin and, although corporations can certainly act in ways that violate the law, it does not seem meaningful to think of corporations as "sinning"; and

            (4) corporations would not be judged by God and have no prospects for eternal existence once they have been dissolved by their shareholders or otherwise by operation of applicable law or after the statute(s) under which they were created are repealed or the operative government ceases to exist.

            There are critical differences between corporate persons and human beings that make it sensible to extend the legal rights granted to the free exercise of religion under the First Amendment to the US Constitution or the RFRA (the federal statute at issue in the Hobby Lobby case) to human beings but not to corporate persons. That is one of the reasons I find Justice Ginsburg's legal analysis in her dissent to represent more sound legal policy than the Court's majority.

    • Danny Getchell

      the human shareholders of Hobby Lobby and Conestoga Wood are not
      providing health insurance to the companies' employees. The companies
      are.

      The use of the word "insurance" is probably not correct in this context. Insurance is something one buys to provide compensation in the event of some future mishap.

      The purchase of contraceptives is more like an ongoing routine expense of daily living.....(unless you consider pregnancy an illness, or a mishap)

      • Greg Schaefer

        Hi Danny.

        Perhaps I am missing the intended thrust of your comment and, if that is the case, please accept my apologies in advance.

        But, the reality in this country is that the vast majority of Americans who receive medical care do not directly pay for the medical care out of pocket, but rely upon health insurance to cover the costs of that care.

        Hobby Lobby and Conestoga Wood, like so many companies in this country, apparently have chosen to provide health insurance coverage to their employees as part of their compensation packages. As I understand it, the ACA requires that health insurance policies -- which are products offered by private insurance corporations in this country to employers for the benefit of their employees and then administered by the insurance companies --offered by most corporate employers (churches themselves may be exempted, in certain circumstances) include coverage for various forms of birth control that have been approved by the FDA.

        So, the specific issue here is not that Hobby Lobby and Conestoga Wood are being required to purchase contraceptives and provide those contraceptives to their employees but rather that, having chosen to offer health insurance coverage to their employees as part of their total compensation packages, the health insurance policies are required under the ACA to include coverage of a number of forms of birth control to any of the companies' women employees who elect to use such forms of birth control. Hobby Lobby and Conestoga Wood objected that specific aspect of the ACA because some of the shareholders of each of those companies personally consider, apparently based on their religious beliefs, those four forms of birth control to be abortifacients and they consider abortion to be contrary to their religious beliefs.

        Greg Schaefer

        • Danny Getchell

          In my opinion, Obamacare is an unwarranted overreach by the federal government, far in excess of its constitutional authority. The whole thing, not just the contraception part.

          Any little monkey wrench we can throw into its works is a distinct good from my point of view, regardless that that wrench was thrown by Christians and primarily benefits them.

          Regrettably, the Catholic Church in the USA chose to ignore the principle of subsidiarity (CCC 1883, 1885) and to largely support this statist concoction. If they win on the contraceptive issues, I fear their support for the vast and unwieldy residue of Obamacare will only grow.

  • David Nickol

    4 Things You Probably Have Wrong About the Hobby Lobby Decision

    Am I the only one who finds this title insulting? Assuming Mr. Heschmeyer is correct about all four points he makes, the title could have been something like Four Common Misconceptions About the Hobby Lobby Decision.

    Also it bothers the (retired) editor in me that the four "things" are questions, and aside from item 2 (Isn't this Case just About Contraception?), which implies that the case is just about contraception, the other questions are neither right nor wrong. They are just questions. If I ask, for example, "Did the Supreme Court just declare that corporations are people?" how can I be called wrong?

    • David, I think you're nitpicking here, and needlessly.

      First, judging by the reactions I've seen personally (through social media) and nationally (among the mainstream press), the large majority of commenters are confused about precisely these four points. So I think the title is accurate.

      Second, Joe never claimed the four "things" were identified in the sub-headings. it seems pretty obvious that the sub-headings point to the four "things." But to clear up any confusion, here they are:

      1. Religious conservatives are imposing their religion.
      2. This case is just about contraception.
      3. The Supreme Court declared corporations are people.
      4. One (or both) sides denied that corporations are people.

      • David Nickol

        Being the only reliable judge of whether I find something insulting or not, I find "4 Things You Probably Have Wrong About the Hobby Lobby Decision" an insulting title. It is a very small matter, and I am not claiming to be personally wounded. It is nothing to get upset about, but it is insulting "in form" if not in effect. There's a place for the "X things you're probably doing wrong" or "X thinks you probably don't know about" headlines, but I don't think this is one of them.

        Having spent most of my career as an editor of one kind or another in the educational publishing industry, in my judgment, when the title of an article refers to "4 things," boldfaced headings 1 through 4 in the article should be the "things." I doubt that anyone would be confused about what the "things" are, but your list is correct, and in my judgment your four items would have been more appropriate headings in the text.

  • David Nickol

    I highly recommend this opinion piece in The New York Times by Paul Horwitz. Those interested in Catholic legal thought on this case (or just in general) should take a look at Mirror of Justice</a ("A blog dedicated to the development of Catholic legal theory"). Until fairly recently, Mirror of Justice permitted readers to comment on posts, and Paul Horwitz was an occasional commenter of (it seemed to me) uncommon insight. He is a contributor to PrawfsBlawg ["Where Intellectual Honesty Has (Almost Always) Trumped Partisanship—Albeit in a Kind of Boring Way Until Recently -- Since 2005"].

    Another invaluable resource for those interested in establishment-clause cases is the Religion Clause blog, which seemingly covers (or at least notes) every case involving religious freedom in the United States (and sometimes other countries, as well). Howard Friedman, who runs the site, has an interesting observation about Alito's decision:

    Justice Alito's "least restrictive means" discussion creates some of
    the most important surprises, and may lead those who supported Hobby Lobby's position to recall the adage: "be careful what you wish for." Jutice Alito makes two points. First, he argues that the "most straightforward" less restrictive alternative would be for the government to assume the cost of furnishing contraceptive coverage. The logical extension of this argument seems to be that if numerous other religious objections to providing employer coverage arise, the best alternative may be a single-payer government-run system.

    Second, Justice Alito heaps praise on the less restrictive alternative that the government has already developed for religious non-profits, and suggests that this may be the most feasible alternative here as well. However, as Justice Alito briefly references in a footnote, an equally fierce battle against just that alternative is working its way through dozens of lower federal courts. Seldom has the Supreme Court so tipped its hand on its views about cases about to come to it. Dozens of religious non-profits are arguing that opting out of furnishing contraceptive coverage, and thereby triggering coverage from elsewhere, still amounts to religiously objectionable participation. For-profit corporations with religious beliefs seemingly have the same free-exercise concerns. The majority must think those concerns are not justified.

  • Freedom of religion cases are almost always about balancing rights. I haven't studied this in the US, but in my jurisdiction this is done first by determining whether the activity I question is religious claim. Does the rule in question prohibit some aspect of the religion or oblige the person to do something that violates their religion? This is usually a pretty easy bar to hop as courts will not engage in an analysis of what is a real religion and what are its legitimate tenets. As long as the claimant has a genuine belief that it is part of their religion, it passes muster.

    But in this case I have trouble accepting that the owners of hobby lobby were obliged to do something that genuinely violated their religion. They were not obliged to have an abortion, fund one, approve of one and so on. They were asked to provide healthcare to their employees as part of the employees remuneration. Some of these employees could use this to get contraception which hobby lobby believes is an abortion. I just do not think that think this is capable of being considered part of their practice of religion. I do not accept that their religion requires them to withhold remuneration which might be used for something they believe is a thing their religion is against.

    This must be balanced against the employees right to be treated equally. I don't think they are. I think they are suffering a detriment based on their employers religious beliefs. Wait until a group who believes blood transfusions are about as acceptable as abortion to God. Or that women should be subservient to men and not be promoted.

    • "Wait until a group who believes blood transfusions are about as acceptable as abortion to God. Or that women should be subservient to men and not be promoted."

      I'd encourage you to read the above discussion regarding "compelling interest" and "least restrictive means possible." Once you do, you'll understand why such outlandish scenarios are unlikely. The government has a clear, compelling interest in propagating life-saving blood transfusions, and in ensuring that citizens are not unjustly discriminated against because of their gender. These interests trump the right to religious liberty.

      But there's no compelling interest in providing employer-covered abortifacients, and certainly--as Joe as explained--there are less-restrictive ways of providing them.

      • David Nickol

        But there's no compelling interest in providing employer-covered abortifacients . . . .

        That is not what the Supreme Court found. Alito said:

        Under RFRA, a Government action that imposes a substantial burden on religious exercise must serve a compelling government interest, and we assume that the HHS regulations satisfy this requirement. But in order for the HHS mandate to be sustained, it must also constitute the least restrictive means of serving that interest, and the mandate plainly fails that test.

        That is, the contraceptive mandate meets the "compelling interest" test but not the "least restrictive means" test.

        It is not out of the question that a mandate to provide blood transfusions would be treated similarly. No matter how compelling the government interest, the government still must use the least restrictive means.

        There was an interesting case some time ago that I have lost track of in which a woman who had a religious objection to blood transfusions was demanding that her insurance company, instead of paying for the blood transfusion she needed, pay for a much more expensive and less effective treatment. I assume we all would agree that an adult who has a religious objection to blood transfusions could refuse to consent to one even if it meant certain death. But what if the patient is a minor child who will die without a transfusion? Should we respect the parents' religious rights to refuse life-saving treatment to a child?

      • I would tend to agree, but I would have said the same thing about this case as well. The compelling interest is for women to not have to choose between health care and their job. The equality interest in having equal access to health care.

        In my country we publicly fund most actual abortions and contraception through our taxes, and I think this is a really good idea. So, obviously we will be far apart on that issue.

        My main criticism is the lack of an infringement of freedom of religion in the first place

  • Tim Dacey

    Let's just end employer regulated healthcare once and for all...

  • Part of this whole debate that is completely lost or swept under the rug, is the question of why pregnancy or fertility in general is treated as a disease and thus deserving of so-called preventative care in the first place. Mind you that under the ACA this preventative care is not limited to care for women.

    http://pop.org/content/science-ignored-dissecting-pregnancy-disease

    ^^ has some interesting insights about how this arena became preventative care. It seems to me that contraception and sterilization medications and procedures in general follow logic of - "My body is healthy and doing exactly what it's supposed to, doctor, can you make it stop?"

    I know that there are use cases for oral contraception to treat other issues, and with respect to Catholicism as far as I am aware such use is reasonable and morally ok. I have also learned that in most these cases the contraceptive medications do not actually treat the condition, but instead circumvent the onset of the symptoms, effectively covering up the disease or condition.

    @bvogt1:disqus Perhaps Dr. Mosher would be interested in writing a piece for strange notions?

    • David Nickol

      . . . . the question of why pregnancy or fertility in general is treated as a disease . . . .

      It is an unwarranted conclusion that if medical science treats something, it must be a disease, or that medical science is (or should be) limited to the treating of diseases.

      • I think it's fair to accept the HHS's definition that Preventative Care is medical care given with the goal of preventing illness and injury, don't you?

        For some reason, the HHS qualifies pregnancy as both a condition to be prevented and a condition to be supported and cared for. Interestingly, all of the other preventative scenarios the HHS mentions are unhealthy, unless you want to consider flu, breast and colon cancer, diabetes, measles, polio, etc. as healthy if the patient wants the illness. That is the case here, pregnancy is healthy and prenatal care is warranted if the patient wants it, otherwise it's considered unhealthy and worthy of preventing.

        The case in question challenges in very specific terms that several of the drugs that the HHS mandate covers are actually abortifacient drugs. The HHS web page goes on to explain that coverage for abortifacient drugs is not included. So it seems to me this case is about making the HHS obey its own position. Ironically, the page also states that contraception can improve the health of mothers-to-be, which implies that what is inside a woman is a human child - lumps of cells don't have mothers.

        One could argue that almost all oral contraceptive drugs and IUD devices have abortifacient potential. As almost all have at least the function of preventing the human embryo from implanting in the lining of the uterus. The only way this process gets around being abortifacient is because the definition of when a woman is pregnant has been changed, at least politically if not medically as well, from the time of fertilization to the time of implantation.

        • David Nickol

          I think it's fair to accept the HHS's definition that Preventative Care is medical care given with the goal of preventing illness and injury, don't you?

          Has HHS formally defined preventive care in those terms? Can you quote the definition, or provide a link to it?

          For some reason, the HHS qualifies pregnancy as both a condition to be prevented and a condition to be supported and cared for.

          Government has recognized that contraception is a public health issue for over forty years, going all the way back to the Nixon administration. Note the following from the Wikipedia entry on Title X:

          The first federal subsidies to help low-income families with birth control came in 1965 as part of President Lyndon Johnson's War on Poverty program. In 1970 during the presidency of Richard Nixon, the Senate passed Title X unanimously, and the House voted 298 to 32 to pass the bill on to Nixon, who signed it into law. There was strong bipartisan support for Title X; Nixon noted as much in a statement he made upon signing the bill.

          In 1972, Congress passed another bill to draw funds from each state's Medicaid program to help pay for family planning for low income families, the states to be 90% repaid by the federal government. A third bill was passed in 1975 authorizing a network of family planning centers to be built across the U.S., in 2014, some 4,400 centers were in operation. Title X and the subsequent supporting bills were funded by $2.4 billion in 2010.

          It is a little late to object that the government is promoting contraception. It has been doing so on a bipartisan basis for decades. Contraceptive services have long been considered preventive care. It is really too late to make up your own definition of what you thing preventive care ought to mean and claim it's illegitimate to classify or provide contraceptive services under the heading of preventive care.

          And in addition, there are many good reasons for considering family planning (including contraception) "preventive care" in the sense that it prevents health problems. I am not going to attempt to address them here, but you can read the report of the Institute of Medicine that HHS relied on regarding preventive care. It is titled Clinical Preventive Services for Women: Closing the Gap. Aside from the fact that women who have unintended pregnancies are much more likely to have abortions than women who intend their pregnancies, women with unintended pregnancies are much more likely not to receive prenatal care. They are more likely to smoke, use alcohol, and drugs than women with intended pregnancies, and they are more likely to have low-birthweight babies than women who have intended pregnancies.

          The case in question challenges in very specific terms that several of the drugs that the HHS mandate covers are actually abortifacient drugs.

          Hobby Lobby and other plaintiffs contend that "emergency contraceptives" are abortifacients. However, the court made no findings as to whether or not they were. The court found it was sufficient for the plaintiffs' objections that they believed the drugs were abortifacient. Last time I researched the topic, there was growing evidence that the two drugs (Plan B, ella) were indeed not abortifacients, not even by the more stringent definition of abortifacient by those (generally pro-life advocates) who believe interfering with implantation is abortion. So the plaintiff's religious objections may possibly have been based on scientific misinformation.

          • http://www.hhs.gov/healthcare/rights/preventive-care/

            The government failed to acknowledge women, various races, and various ethnicity as persons for a while too. Certainly we don't want to put all our eggs in the government's basket when it comes to telling us what's good and right for its people.

            Certainly, 50 years ago, medical science was not as advanced in its understanding of the processes involved as they are now. Though I do find it interesting that recent support to suggest that research (I assume) like you mention seems to be down playing the abortifacient function of contraceptives all of a sudden, as though there is political motivation in interpreting the results. There are many studies that show that typically prescribed oral contraceptives have the abortifacient function of decreasing endometrial receptivity. While contraceptive drugs have a primary function to prevent ovulation, they also have a backup plan (or perhaps side effect) which prevents implantation of the embryo in the uterus.

            When an embryo fails to implant without the aid of a contraceptive the term used to describe what happens is spontaneous abortion, or miscarriage. The terms imply a pregnant state despite the fact that implantation has not happened. The Princeton writeup on ECPs not being causing abortions (below) begins by saying that the US FDA, NIH, etc. define pregnancy as beginning at implantation, not fertilization. Convenient, don't you think? An ECP won't cause an abortion, so...if a woman's egg is fertilized, but not implanted, when she takes the ECP, then it is likely she will become pregnant (because she's not pregnant yet, even though she has a fertilized embryo). Sounds like a chicken and egg problem in our semantics.

            1996 - http://www.ncbi.nlm.nih.gov/pubmed/8774274

            1999 - http://www.fertstert.org/article/S0015-0282%2801%2901834-9/abstract

            2006 - http://www.sciencedirect.com/science/article/pii/S0015028206045468

            2010 - http://ec.princeton.edu/questions/MOA.pdf

            2012 - http://stacytrasancos.com/category/science/contraception/ (Stacy is a Strange Notions contributor)

            In the end, there does not seem to be a great deal of consensus. So I guess we have to take the science on faith, and hope there is no political undercurrent in the interpretation of the results. Unless you're a medical scientist and have time to track down the relevant studies, correlate the results, and draw your own conclusions. The conclusion I draw is that some studies show that the drugs have abortifacient qualities, others suggest they do not. Error on the side of caution, what's the better choice?

  • Max Driffill

    Shouldn't the employees who have to pay for this coverage have access to legal, approved, medical procedures, medicines and therapies? No corporation provides healthcare free of charge, healthcare coverage is something employees pay for. Why should the religious beliefs of those who run the corporation affect whether or not a person has access to full coverage, that employees pay for.

  • At the heart of this, there's a semantic debate over when pregnancy begins, because two definitions are used. Some obstetricians use an early definition: pregnancy begins once the sperm fertilizes the egg, resulting in an embryo (an organism genetically distinct from both its parents). Other obstetricians use a late definition: that pregnancy doesn't begin until the fertilized egg implants into the uterine wall.

    Of these, the early definition is better. Imagine that, one day, scientists are able to fuse sperm and egg in a laboratory setting, and bring the child full term in an artificial womb (or some other laboratory conditions). According to the late definition, we would have to conclude that this person was never conceived.

    No, we would conclude that the mother was never pregnant. Heschmeyer's reasoning in that section was so transparently fallacious that he has just entirely convinced me that the late definition of pregnancy is the unambiguously correct one.

  • 1. Is This Case About Scalia and Other Court Conservatives Imposing Their Religion?

    No: something nearer the opposite, really. ... Alfred Smith and Galen Black worked at a rehab clinic, but were fired for using peyote ... In a 5-4 [sic] decision authored by Justice Scalia, the Court held that a facially-neutral law could be applied across the board, even if it had the effect of hindering religious rituals. ...

    ... Congress was concerned that Scalia and the other conservatives on the Supreme Court didn't take a broad enough view of religious freedom.

    Employment Division v. Smith

    Majority & Concurring opinions:
    Scalia (conservative)
    Rehnquist (conservative)
    White (moderate conservative)
    Stevens (liberal)
    Kennedy (moderate conservative)
    O'Connor (moderate conservative)

    Dissenting opinions:
    Blackmun (liberal)
    Brennan (liberal)
    Marshall (liberal)

    Religion at stake: Indigenous religion (adherents of the Native American Church).

    Burwell v. Hobby Lobby

    Majority & Concurring opinions:
    Alito (conservative)
    Roberts (conservative)
    Scalia (conservative)
    Thomas (conservative)
    Kennedy (moderate conservative)

    Ginsburg (liberal)
    Sotomayor (liberal)
    Breyer (liberal)
    Kagan (liberal)

    Religion at stake: Christianity.

    Clearly, then, the first point of the article is not supported by the facts. The conservatives in 1989 ruled against constitutional rights regarding a religion that they did not share with the plaintiffs. Most of the liberals dissented, being of the same opinion as the Congress, that our constitutional guarantees of religious liberty ought to be understood differently than the Court's majority opinion held. The conservatives in 2014 ruled in favor of constitutional rights regarding a religion that they do share with the plaintiffs.

    Now to be charitable, we can't simply conclude that the conservatives were overly influenced by cognitive biases common to all humans no matter how intelligent. A big confound is that the underlying law changed between 1989 and 2014.

    Another consistent story we could tell is about individuals versus groups. Most of the Court's liberals in 1989 and all of the Court's liberals in 2014 issued opinions based on trying to be favorable toward individual religious liberties. The Court's conservatives in 1990 ruled against individual religious liberties. The 2014 case is more complex, however, since the conservatives also issued opinions aiming to be more favorable toward "personal" (albeit not individual) religious liberties.

    Another consistent story we could tell is about class. Most of the Court's liberals in 1989 and all of the Court's liberals in 2014 issued opinions based on trying to be favorable toward Labor. The Court's conservatives in 1989 and 2014 ruled in favor of Capital.

    The point of bringing up alternatives is to show a stronger reason why we shouldn't be quick to conclude that the conservatives on the Court are merely pushing their own religion. There's a constellation of ways to explain the distribution of Court opinions, and our evidence doesn't distinguish between them well.

    The experts have a trick, here, though. They use an algorithm called DW-NOMINATE that looks at how people vote and compares them to each other over time. There are LOTS of individual differences and lots of sources of those differences, but in antagonistic (e.g. vote with the Majority or with the Dissent) scenarios we typically find that two clusters emerge. In ordinary language in the U.S., we call the clusters "liberal" and "conservative". So there's a sense in which it's perfectly accurate to say the conservatives on the Court ruled as they did in 1989 and 2014 because they were pushing their conservatism. But that's not an explanation either, because "liberal" and "conservative" in this sense are just code words for a complex of poorly-understood factors.

    The poor understanding of how those factors work together, therefore, is the best reason for supposing Scalia and the other Court conservatives were not merely pushing their religion.

    But neither does it excuse their legal reasoning.

  • mriehm

    It strikes me that the Hobby Lobby owners want to have their cake and eat it, too - they want the benefits of the "distance" (between owner and business) that incorporation provides, but not the drawbacks.

    For them to argue that for Hobby Lobby to provide contraceptives to its employees somehow infringes upon their religious rights is completely beyond me. It is they who wish to impose upon others' rights.

    • If refusing to provide coverage for contraception imposes upon other people's rights, why would the HHS set up a way for certain Catholic non-profits to do just that? Isn't it better for the government to provide for those things that are morally objectionable to some companies? That way, no one's conscience is disturbed, and everyone gets the necessary healthcare.

      • Michael Murray

        Or they could just not offer health insurance and raise their employees salaries by the amount the employees would need to buy their own health insurance on the open market. I assume there is no legal obstruction to this in the US ?

        • This question was asked during the oral arguments.The advocate for Hobby Lobby gave two responses:

          1) Hobby Lobby is also religiously motivated to provide healthcare.

          2) Failure to provide healthcare will cause Hobby Lobby economic damage.

          (1) was not so persuasive, but I found (2) persuasive enough.

  • Brad

    Whether looking at this from a pro-life point of view or an anti-contraception point of view doesn't really matter. The bottom line is that the case is one example of those with the sexual worldview of the Catholic being against something that conflicts with Natural Law as given to them by God and explained by the Church. That being said, I want to bring up an argument against this worldview which I find compelling and which I have yet to hear a good response to. It seems to me there is a glaring aspect of human sexuality that Catholics seem to overlook. This is the female orgasm. Luckily for the man an orgasm is necessary to participate in the Church's version of proper sexual activity, but what of the female orgasm. It seems that sometimes a woman has one, sometimes she doesn't. It is even possible, and probably common, that a woman living under this sexual worldview could live their entire life and not have one all while still behaving in what the Church would deem a sexually proper way. This is for two reasons. One is that the female orgasm can be elusive, and two that the female orgasm has really nothing to do with procreation unlike the male. To achieve an orgasm for the female many times couples must partake in activities that preclude procreation. What is wrong with this? What is wrong with this behavior which can be bonding, healthy, fulfilling and altogether a good thing except for the fact that it doesn't lead to babies? In light of the Church's view of sexuality, and in light of this case I think this point is something that Catholic women especially should consider.

  • Brad

    Whether looking at this from a pro-life point of view or an anti-contraception point of view doesn't really matter. The bottom line is that the case is one example of those with the sexual worldview of the Catholic being against something that conflicts with Natural Law as given to them by God and explained by the Church. That being said, I want to bring up an argument against this worldview which I find compelling and which I have yet to hear a good response to. It seems to me there is a glaring aspect of human sexuality that Catholics seem to overlook. This is the female orgasm. Luckily for the man an orgasm is necessary to participate in the Church's version of proper sexual activity, but what of the female orgasm? It seems that sometimes a woman has one, sometimes she doesn't. It is even possible, and probably common, that a woman living under this sexual worldview could live their entire life and not have one, all while still behaving in what the Church would deem a sexually proper way. This is for two reasons. One is that the female orgasm can be elusive, and two that the female orgasm has really nothing to do with procreation, unlike the male. To achieve an orgasm for the female many times couples must partake in activities that preclude procreation. What is wrong with this? What is wrong with this behavior which can be bonding, healthy, fulfilling and altogether a good thing except for the fact that it doesn't lead to babies? In light of the Church's view of sexuality, and in light of this case I think this point is something that Catholic women especially should consider. Why does the female orgasm even exist, if not purely for pleasure?

    • Brad

      Ok so either my comment is either stupid and not worthy of a response or no one has a good response. I wish I knew which it was.

      • Michael Murray

        I think the Catholics will argue that the female orgasm is part of the "unitive" aspect of sex. There is a recognition that sex is a bonding experience for a loving (heterosexual) couple. It doesn't have to be just for procreation but the couple must be "open" to the possibility of procreation.

        I don't agree with any of this because I trip up at "Our Father who art in Heaven" so don't expect me to defend it and I might have it wrong. But it is the kind of thing I see written on these boards I think.

        • Brad

          Right, there is "unitive" aspect, but their whole argument against contraception comes from their belief that sex should be both "unitive" and also leaving open the possibility of procreation. For them, sex should be both. To me the female orgasm is a grey area because it is bonding yes but many times excludes the possibility of procreation. As I see it, they are in a position where they want to argue that the female orgasm is a good thing, but opening that door leads to all sorts of sexual activities that could be bonding but don't involve procreation at all. If they say it is ok to get the woman off then I believe you can draw a line from that to it being ok to use contraception.

  • Sara Woods

    Thing is, allowing employees to access BC does in no way inhibit the owners of HL to practice their religion since they do not have to use said BC. The whole ruling is base less IMO. the first argument out the window. Imposing a religious beliefs on a private insurer as well as al employees is taking relies freedom and turning it on its head. Godin back to the peyote ruling, getting arrested for using wine or peyote in rituals does indeed inhibit religious practices......same with abortion. If this goes against your religion, don't get one, but imposing your beliefs on others is indecent and just plain ole wrong. These points of law are semantics in the overall view of the HL ruling......big picture is, it's wrong. the compelling interest of the gov't is providing healthcare......if that's not compelling, my god, I don't know what is.