A legal look at Hobby Lobby’s ridiculous “freedom of religion” argument

Today, the Supreme Court heard oral argument in the Hobby Lobby case. In a recent post, I discussed one of the two primary issues the Court is considering: whether or not for-profit corporations have the right to freely exercise religion.

The other, more intuitive issue is whether the Affordable Care Act’s contraceptive mandate, which applies to relatively large corporations that employ more than fifty people, infringes on the free exercise rights of religious corporations, should the Court determine that those corporations have such rights at all.

Importantly, the corporations that have brought suit in the case — Hobby Lobby and Mardel — elected not to challenge the contraceptive mandate explicitly on First Amendment grounds, and have instead based their case on the federal Religious Freedom Restoration Act.

This technicality has no real bearing on the conceptual issues in the case because the RFRA is intimately connected to the First Amendment’s Free Exercise Clause. In fact, the RFRA was conceived as an effort by Congress to alter the Supreme Court’s interpretation of the Free Exercise Clause (a thing Congress is, of course, constitutionally powerless to do). The RFRA even borrows the language of the Supreme Court’s “strict scrutiny” standard of review, meaning that the law is, in essence, a mini-First Amendment.

Thus, whether the Hobby Lobby case amounts to an explicit First Amendment challenge, or an attempt to seek refuge under the RFRA, it is functionally the same case.

The “Free Exercise” Anachronism

The essential question in this case is whether the RFRA, channeling the First Amendment’s Free Exercise Clause, immunizes a corporation from a legal obligation that arguably conflicts with the religious faith of the person running, or owning, the organization.

Respecting this question, one reflection cannot be avoided: Does it not seem crazy that more than a decade into the 21st century the fate of an important and controversial part of a duly-enacted law rests on its compatibility with religious observance?

I try to avoid the tantalizing conceit of religion-bashing whenever possible. We cannot forget the havoc that religion has wreaked throughout human history. Despite its debatable graces, major religion has always been a bulwark against progress and human dignity.

It is curious, then, that religion should now be contemplated as a means to acquire special exemptions from laws of general applicability, including those which do not even have the indirect effect of prohibiting or inhibiting it. In fact, this is a shockingly expansive principle.

The slippery-slope

What, after all, isn’t arguably incompatible with religious observance?

Surely there could be — might currently be — a religious cult that centers itself on the refusal to interact with African-Americans. By the terms of the First Amendment, if we accept the view of the Free Exercise Clause and the RFRA proffered by Hobby Lobby and its religious compatriots, no law that might compromise the free exercise of such a cult can be applicable to it.

A man dressed as the Flying Spaghetti Monster (FSM) poses at the Stewart/Colbert Rally to Restore Sanity and/or Fear, Oct. 30, 2010 on the National Mall in Washington, DC. (L. Kragt Bakker / Shutterstock.com)

A man dressed as the Flying Spaghetti Monster (FSM) poses at the Stewart/Colbert Rally to Restore Sanity and/or Fear, Oct. 30, 2010 on the National Mall in Washington, DC. (L. Kragt Bakker / Shutterstock.com)

The list of similarly absurd examples is endless, because religious beliefs are generally based on nothing but faith. This is what makes religious beliefs religious and not scientific or philosophical, the latter two appealing on a logical, if not an evidentiary basis. Thus, Richard Dawkins’ admittedly crude and mean-spirited attempt at religious satire, the Flying Spaghetti Monster, is as much evidenced as the supernatural figures of Jesus Christ, the Prophet Muhammad and, of course, the Big Man himself.

Could not a Christian avoid the obligation to pay income taxes, the majority of which go to defense spending, on grounds of the inherent incompatibility of funding the military with observing Christ’s injunctions toward non-violence?

Much more than fear of contraception, which is nowhere preached by Jesus, nor reasonably extracted from anything he is known to have said, pacifism is an undeniable tenet of the Christian faith. Doesn’t the endless privilege of free exercise, then, threaten to undermine of all things — gasp! — our precious military? Is nothing too sacred to be overcome by it?

Hobby Lobby’s free exercise argument

Fear not, the lawyers for Hobby Lobby and Mardel, who are really the lawyers for their Christian owners, the Green family, have presented a suitably lubricious argument to avoid that dilemma.

They have attempted to establish a feeble distinction between the obligation to pay general income taxes, which the government can use to pay for contraceptives, and, on the other hand, being forced by law to directly pay for contraceptives.

The former, the lawyers concede, presents no problem; the government has every right to enact such a policy. But the latter situation, they argue, is categorically distinct.

Keep in mind that lawyers pride themselves on making self-serving and often trivial distinctions to win cases. That is exactly what is being done here.

If the source of Hobby Lobby and Mardel’s free-exercise objection to directly-funding contraception is “religious observance of God’s law,” how would it not perturb them in the same way if the government were taxing their property and using the resultant funds to pay for birth control?

Is God’s law so petty as to privilege the means over the ends?  God’s okay with “murder” so long as it’s circuitous, and laundered with a middle man?

If it is a violation of God’s law to play a role in granting females access to birth control methods, does it really matter whether such access is granted via a law that compels one to directly purchase contraception for women, or through a general tax fund comprised in part by one’s own money? And if so, why?

And on the contrary, during the Vietnam War, conscientious objectors felt that the moral obligation to oppose unjust wars compelled them to go to prison, rather than pay taxes to a general fund which would inevitably be used to fund war.

The “distinction” is even less compelling when one considers that the federal government is also entitled to simply mandate a higher wage for the employees of large corporations, which said employees could then use to purchase broader health coverage, including access to contraception.  Again, same ends, different means.  And while such a distinction might be legal, is it really moral?

With all of this in mind, and giving proper respect to the Creator’s intelligence, it is hard to see why Hobby Lobby and Mardel’s corporate piety requires that the RFRA and the First Amendment allow self-exemption from the legal mandate to directly purchase contraceptives for women.

Deceiving God

The effort to “get around” God’s law is as old as religion itself.

Fornication is illegal under the Iranian interpretation of Shariah Law, so naturally there is a business for mullahs who sell temporary marriages to men in search of quick sexual gratification, who happily sign divorce papers when the business is done. (Seriously.)

Similarly, the ever-ethical Catholic Church used to sell “indulgences” to pardon certain sinful offenses so that they could be perpetrated without fear of punishment — at least by those with enough money to pay. God is apparently too daft, or money-grubbing, to know (or care) when “He” is being cheated, as Hobby Lobby and Mardel’s spurious distinction is attempting to do now.

What is the purpose of the Free Exercise Clause?

It definitely makes sense to give legal protection to those who wish to exercise their religious beliefs free from arbitrary proscriptions and prohibitions — at least insofar as the exercise of those beliefs does not run afoul of essential social obligations. This was, as far as history can tell, the purpose of the Free Exercise Clause of the First Amendment as the Framers of our union contemplated it.

But as is customary with our Constitution, two centuries of “interpretation” by the Supreme Court, and of activism by Congress, has yielded a Free Exercise Clause that would have been unrecognizable to the people who wrote, implemented, and actually voted to authorize it. Theirs was a limited purpose. They sought to prevent the establishment of a state religion like the Anglican Church and, concomitantly, to prevent government from prohibiting the free exercise of any faith. This duality of purpose is the reason the Establishment Clause and the Free Exercise Clause lie together in the First Amendment.

What the Framers did not intend to do — or, at least, there is zero evidence they intended to do it — was to create an unlimited license for religious Americans to exempt themselves from any law that arguably affects their religious observance, even if the effect is indirect and de minimis.

Had the Framers harbored such a collective intention, it would have grated on figures like Thomas Jefferson and Benjamin Franklin, the former likely being a deist, and the latter, most probably, an atheist. Neither would have thought much of a license in the form of religious privilege that was not granted in kind to secularists.

So I invoke the spirits of Jefferson and Franklin (and of Thomas Paine and others) when I ask: Why should religious Americans get a special exemption from legal obligations because of a masculine deity’s capricious rules, while secularists cannot hope to get the same treatment, the same favoritism?

This double standard is anachronistic and contemptible.

Going forward

Hopefully, the Supreme Court won’t issue yet another activist conservative ruling of the kind that Roberts’ tenure as Chief Justice has become known for.

The Free Exercise Clause, and the RFRA, are rooted in the sensible desire to avoid oppressing the private spiritual pursuits of Americans. But unless the law is explicitly aimed at stifling “religious observance,” the government should not need a “compelling interest” to justify its application to all citizens.

While the RFRA is correct in asserting that “neutral” laws can sometimes “burden” religion as severely as explicitly discriminatory ones, the burdening of personal convictions is an inevitable part of living in a society where the majority, not single individuals, make the rules.

Many of us weren’t terribly impressed with the Iraq War, for example. But we paid our taxes because, as individual citizens, there is no constitutional requirement that every duly enacted law appeal to, nor be, compatible with our personal sensibilities.

Generally, we don’t get to pick and choose the laws with which we comply. And considering the pandemonium that would result if we did, I thank God for it.

(I’m told that in order to better see my Facebook posts in your feed, you need to “follow” me.)

David Delmar is a third-year student at Harvard Law School, with experience in both civil and criminal public interest law. His interests include law, politics, culture and society, philosophy, religion, and great fiction. David particularly likes to write about issues affecting human rights and civil liberties.

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82 Responses to “A legal look at Hobby Lobby’s ridiculous “freedom of religion” argument”

  1. Free America says:

    “Mommy, why do liberals hate God?”

  2. Bob Clement says:

    What it seems everyone is missing here is the end of first amendment rights. Have you thought that the 1st amendment includes the right to association, the right to free speech, the religious beliefs and the no incorporated company no matter the size will have 1st Amendment rights if the government wins this case..

    So lets say Hobby Lobby loses this case. What else is lost if a “corporation” is not protected by the 1st amendment?

    1. virtually every serious business venture from tiny 1 person operations that is incorporated for tax and liability reasons. None of those business will have 1st Amendment protection if Hobby Lobby loses.

    2. What do I mean? I mean for example that because CBS NEWS is incorporated it is not protected by the 1st Amendment right to free speech because that free speech might step on the rights of its employees, The federal GOVT reigns and can control what it reports. Do you want to be a fan of government controlled mass media? Oppose Hobby Lobby.

    3. A little coffee shop business that incorporates to gain tax and liability advantages no longer can express the political beliefs or religious beliefs of its owners. The owners can still have their beliefs, but they will have no rights whatsoever to express those beliefs through their business whether that be atheist Christian liberal or conservative.

    4. Ultimately what this case will do is allow the Federal government to dictate to ANY incorporated business no matter the size what it can say, who it can affiliate with, what it can sell, what religions it can or cannot support, where it can donate its money and what political affiliations it can have and whether or not the very news you hear every day as free speech can be designed and approved by the federal government.

    This is what’s at stake because some misguided idea that individual rights are being harmed by persons choice of employers.

    You people need to think more than a half inch in front of your own noses.

  3. wjgreen314 says:

    If an egg — a haploid cell — isn’t fertilized it does not become a new homo sapien life because it contains only of 23 human chromosomes and not the requisite 46, and of course it is menstruated out of a woman’s vagina.

    A fertilized egg, the conjoining of a male haploid cell with 23 chromosomes and a female haploid cell with 23 chromosomes forms what science states is a NEW HUMAN LIFE. Punto. That’s it! That’s all that matters. 46 human chromosomes is the heavenly, God-given number and from this moment on s/he is a homo sapien created in the Imago Dei and precious in God’s sight — evil and Murder-worthy in Godless Culturally Marxist’s Prochoice sight, and that’s why the Godly must and will defeat the unGodly because Life is Precious to God and by extension, to the Godly.

  4. Naja pallida says:

    And what do you suppose happens if an egg isn’t fertilized, and thus doesn’t implant? Sorry, but a single cell is not a human being. Even by the time you’ve reached the maximum recommended effectiveness for taking Plan B, it’s still only 16 indistinguishable cells. But sure, set your hair on fire and run around declaring life begins at erection. It’s so helpful.

  5. wjgreen314 says:

    Solicitor General, Milli Verilli, on behalf of the Godless Obama regime, has submitted legal briefs to SCOTUS conceding, confessing, admitting, and agreeing that Plan B — just like it’s FDA MANDATED/APPROVED label states, alters a woman’s endometrium and may PREVENT IMPLANTATION of a 4 – 7 day old homo sapien conceived in a Fallopian Tube from implanting in her mother’s uterus, causing her DEATH, and resulting in her de facto abortion OUT of her mother’s vagina just like all abortions!


    “It is possible that Plan B One-Step® may also work by . . . preventing attachment (implantation) [of a 4 – 7 day old homo sapien] to the uterus (womb).”

    The fact that the language is loosey-goosey and tentative does not change the fact that the FDA requires it because the FDA was convinced that the hormone can, and in some instances may, prevent a homo sapien conceived 4 – 7 days prior, from implanting in her mother’s altered endometrium — the lining of the uterine wall — subsequently causing her DEATH; afterward being “naturally” aborted in her dead state out of her mother’s vagina just like every other abortion.

    Click on “How Does Plan B One-Step Work?”



  6. Dave says:

    One of the little discussed factors is that a favorable ruling for Hobby Lobby could result in a breakdown of the distinction corporations have from those who own them. I.e., one of the basic premises of corporate law is that the “corporation” is separate and distinct from its owners, and while you can sue a corporation for ITS actions or inactions, the owners are not personally liable. However, if “the corporation” assumes the “personhood” of the owner(s), then that legal distinction may simply evaporate. As some have pointed out, the corporate world piled on amicus briefs in support of “Citizens United,” but has remained notably aloof from this case. Perhaps they fear the disintegration of that “wall.”

  7. leave me alone says:

    Why not repeal the ACA and bar employers from offering health insurance? You buy insurance on the open market and, if you like your insurance, you can keep your insurance.

  8. leave me alone says:

    If the employer provides the insurance coverage (and the employee opts to pay their portion of the cost), then, yes, the employer has dictated some limits to what the employee can obtain from a doctor. The employee can solve this by obtaining their own coverage.

  9. leave me alone says:

    Yes they do. And, if you claim an itemized deduction on your Federal Tax Return, then you are getting money from the Government for your mortgage interest deduction. So the government should be able to tell you the type of house you buy, too.

  10. Mike_in_the_Tundra says:

    There are already Muslim legislators, so it’s very possible that a Muslim may sit on the Supreme Court. Would you be comfortable if he or she interpreted the constitution while using the Koran to drive their interpretation of the Constitution? How about an Atheist? It’s a little far fetched but possible, how do you feel about a Wiccan?

    “Allowing Religion to drive the Constitution’s interpretation was the tacit goal, and as long as the public did not object it has been allowed.”

    On what are you basing this information?

    “The Historical compromise was to allow the Religious influence in Laws by the majority, but not Establish an Explicit State Religion.”

    Again, on what are you basing this information?

  11. Donder33 says:

    Companies restrict the formulary in their plans or refuse to cover specific diseases or treatment all the time to reduce their costs. Even compliant ACA plans are allowed to do things like: only the first $5000 in Chemotherapy drugs are covered by the plan.

    In fact only 7 States mandate that Cancer Treatment must be part of a Health Care Plan.

    So if Hobby Lobby loses (and are sore losers) they could re-write their plan to say something like: “This plan excludes Cancer treatment to any Woman on the plan who utilizes the Birth Control Prescription Benefit.”

  12. Donder33 says:

    Did you read your own comment? “swore to God…” 2000 yrs ago even Jesus recognized the conundrum that swearing to God creates.

    ‘No man can serve two masters: for either he will hate the one, and love the other; or else he will hold to the one, and despise the other.’ No observant Christian can completely uphold the Constitution when also trying to Live their Religion in all they do.

    The Founders added the “No Religious Test” clause partly for this reason. Allowing Religion to drive the Constitution’s interpretation was the tacit goal, and as long as the public did not object it has been allowed.

    The Constitution reflects a compromise document between many polarized view of its day. Religion was a conflict point that was as volatile then as it is now, ‘should Government be purely secular or not’. The Historical compromise was to allow the Religious influence in Laws by the majority, but not Establish an Explicit State Religion.

  13. Mike_in_the_Tundra says:

    Living it and interpreting the Constitution are two different things. He swore to God to uphold the Constitution which should include keeping his own biases out of his interpretations.

  14. Mason Barge says:

    “Thus, whether the Hobby Lobby case amounts to an explicit First
    Amendment challenge, or an attempt to seek refuge under the RFRA, it is
    functionally the same case.”

    If this is your idea of legal analysis, good luck with your career.

  15. rmthunter says:

    True. They’re trying to undo the progress we’ve made over the past fifty years or so in weeding out the “Christian” basis of too many of our laws.

  16. Donder33 says:

    For anyone who truly lives their Religion as their lifestyle, country and law do(should) come in a distant second.

  17. Donder33 says:

    Yes. That would be the implication… and what is wrong with that. The Right to Living your Religion Openly is enumerated in the Constitution not the right to Healthcare. Don’t like the way the Constitutions makes it virtually impossible for society to ‘modernize,’ in your view, too bad.

  18. Donder33 says:

    This is about KEEPING Christian beliefs the dominant force in the country’s legal system. The De facto(in practice but not necessarily ordained by law) state of things for the last 200 years is Christian morality enforced by US Secular laws.

  19. Alan Bell says:

    The church of the flying spaghetti monster was started by Bobby Henderson. Randomly attributing anything atheistish to Dawkins is silly, he is one atheist of many. The church of the flying spaghetti monster isn’t even an atheist thing, you can tell that because it has a deity (which is exactly as real as the deity of other churches).

  20. GraceAlexander says:

    People forget that Hobby Lobby isn’t being FORCED to offer employees insurance. Since ACA went into effect, a lot of companies dropped insurance benefits completely, since their employees could get a better deal independently – thus severing the abusive tie between employment and medical coverage. However, companies that still offer benefits get rewarded – and THAT is the crux of the matter with Hobby Lobby – they want the tax break for offering benefits without having to offer the same benefits every health care plan in the US is supposed to cover. They can’t have it both ways. They can drop the benefits completely, stop taking out of employees paychecks (what? did you think Hobby Lobby was footing the whole bill for employee’s plans? LULZ) and pay the minute penalty for NOT offering insurance (which is WAY less than what they’ve spent so far fighting this inane battle) or offer the same fucking benefits everyone else has to under the ACA LAW. They don’t get to take the tax break AND dictate terms.

  21. Josh Villa says:

    A lot of Hypocrite

  22. pappyvet says:

    Before I forget ,Happy Birthday to Joseph Campbell

  23. mtblaze says:

    To all you Christians at Hobby Lobby. Here is what St. Paul says about government, law and taxes.

    “Let every person be subject to the governing authorities. For there is no authority except by God’s appointment, and the authorities that exist have been instituted by God. So the person who resists such authority resists the ordinance of God, and those who resist will incur judgment (for rulers cause no fear for good conduct but for bad). Do you desire not to fear authority? Do good and you will receive its commendation, for it is God’s servant for your good. But if you do wrong, be in fear, for it does not bear the sword in vain. It is God’s servant to administer retribution on the wrongdoer. Therefore it is necessary to be in subjection, not only because of the wrath of the authorities but also because of your conscience. For this reason you also pay taxes, for the authorities are God’s servants devoted to governing. Pay everyone what is owed: taxes to whom taxes are due, revenue to whom revenue is due, respect to whom respect is due, honor to whom honor is due.”

    Hobby Lobby, you are directed in the Bible by Paul himself to obey the government, its laws and pay your taxes.

  24. David Delmar says:

    Dawkins makes a habit of at least forcefully implying that the religious are stupid, or somehow intellectually inferior. For example, if my memory serves, he once said that Jesus would be too smart not to be an atheist if he were alive today.

  25. I don’t think that’s fair (though I’ll happily change my mind if Dawkins has actually called religion or the religious “stupid”). I too am an atheist, and I find all religion to be preposterous. To me. And if quizzed, I’d tell people that, and tell them why, if they’re curious. But I think “stupid” is a value judgment, and though there are surely stupid religious people, I wouldn’t assign that word to all of them. But I’d still think even the smart ones have preposterous beliefs.

  26. David Delmar says:

    Eh, I think the two are often one in the same. Dawkins doesn’t have to go on a crusade against all religious belief, as opposed to the tendency of religious belief to lead to contemptible behavior and conduct. For many, religious belief is innocuous and even laudable. There are also a great many poor and underprivileged people who rely on faith to get them through the trials of life. Dawkins thinks their faith is just as stupid as the Falwells of the world. And, really, it isn’t. Religion is just one of the many “dogmatic illusions,” to quote a friend of mine, that humans subscribe to.

  27. I think Dawkins is blunt. I don’t think he’s mean-spirited.

  28. Ramen to all of the above! It wasn’t crude or particularly mean-spirited. I found it to be utterly brilliant (and hilarious).

  29. kokoretsi says:

    Interesting article, and I agree with its conclusions, but scant comfort if SCOTUS agrees with Hobby Lobby, which may very well occur. This case may seem ridiculous to most folks reading here, but there are many who agree with Hobby Lobby — and not all of them are stupid. If you think I’m kidding, read the comment boards at National Review Online. The posters there are generally well-educated and thoughtful, albeit very conservative, and they offer a radically different world view. Don’t just assume that something that seems silly to you is also seen by others in the same way.

  30. 2karmanot says:


  31. 2karmanot says:

    They must swear a company oath to Balsa wood, sequins, plastic flowers, paintable plaster Jesus statues and non-sniffable glue.

  32. 2karmanot says:

    “and, of course, the Big Man himself.” I would say that very softly if I were you. SHE might hear you.

  33. pappyvet says:

    Well put.

  34. pappyvet says:

    Like I said , Jim Crow for LGBT folk. But I really do fear that getting off the sidewalk and not eating at the counter will not be nearly enough. We are pretty much an abomination to many of these lunatics.

    I wrote a while ago about some in the inquisition who truly believed that torturing the flesh purified the spirit. These practices were not just reserved for the accused but many of the faithful tortured their own flesh to attain purity.

    A sick and twisted male dominated ,male manufactured religion that has for centuries duped the weak and employed the willing with a mind boggling array of excuses for their behavior that always comes down to control. For our own good of course. Joining with the corporations is a power play that bodes ill for everyone’s freedom. The corporations having their own myths to guide their greed. How many times have we heard the line that says if the poor acquire money they will only hurt themselves? The truth is that if the greed mongers were half as good with their money as the rest of us MUST be , they would not need near as much to live an outstanding life.The folks working at walmart for pennies are not the ones who tanked the economy. The “malefactors of great wealth” as Teddy Roosevelt called them dictating their personal “beliefs” with the rabid religionists in the wings is a frightening prospect.

  35. fluffthebunny says:

    I am hereby announcing the inception of my new religious order: The First Church of Diplomatic Immunity.

    By paying the requisite indulgence, you may become a confirmed member of my religion, which has a legitimate religious exception for every possible law you might ever be accused of breaking.

  36. LasloPratt says:

    You want a slippery slope? Try this…

    Let’s say the Supreme Court sides with Hobby Lobby. Fine – there is now a religious opt-out clause in every law. What prevents someone from constructing a religion expressly designed to skirt a law or set of laws? (I, for one, would be sorely tempted to construct a religion that demands the scourging of Hobby Lobby.)

    Of course, one could argue that in that scenario, it’s not a legitimate religion. Fine. Who then determines what is a legitimate religion in the context of opting out of the country’s laws? Sooner or later, that’s going to be refereed by a legislature or a court. (Bobby Jindal will be on the teevee the next day explaining why only Christians have this option.) How is that not a direct violation of the establishment clause of the first amendment?

    But that’s quibbling. Because we all know that for the owners of Hobby Lobby, the real god is Money. In that sense, they’re right – this law is an affront to their beliefs.

  37. BeccaM says:

    Actually I believe that as well. But my pal PappyVet was asking what specifically was next, and I think legal discrimination against LGBTs would be the thing.

    The long-term goal is New Gilead. Run by corporations, with social policy dictated by far-right radical Christianists.

  38. colleen2 says:

    I believe that what they are headed for is a Biblical legal definition of women’s social status. Which would be chattel. Chattel does as it’s told.

  39. mikeyDe says:

    I *kinda* hope Hobby Lobby wins its case and well before the fall elections. It would make a good issue to use against the Republican candidates. I also agree with their argument. Corporations should not be in the business of providing health care and people like Green are a good argument for single-payer, government-supplied health insurance, if not health care. Those poor corporations shouldn’t have to be making all these tricky moral decisions when they should be making money. I feel so bad for them!

  40. orogeny says:

    Question…my employer pays a portion of my insurance premium. Does this mean that they are actually paying for my insurance, or are they simply taking a portion of my compensation and applying it to my insurance premiums? Since I use a portion of my compensation to pay my house payment, does my employer have any control over the type of house I buy?

  41. SilverSpringer says:

    So, if I’m Muslim, I can claim an exemption from paying for, say, thyroid drugs made from pigs? If I’m a Jehovah’s Witness, can I claim exemption from my employees getting blood transfusions? This just opens up a can of worms.

  42. rmthunter says:

    Becca — it’s much broader than that: what they’re after is to make their particular religious beliefs the dominant force in the country’s legal system. They want exemptions from non-discrimination laws, they want control of sex and reproduction, they want the right to marginalize groups they disapprove of (and don’t think that stops with LGBTs — they disapprove of just about everyone).

    They’re trying to undo all the progress that’s been made in the last hundred years in extending recognition of fundamental rights to everyone.

  43. guest says:

    When a person goes to see a doctor, what business is it of an employer what they discuss, what prescriptions are given to the patient etc, insurance is insurance, should every employee have their doctor consult with employers to see if it’s OK what to discuss with the doctor?

  44. eggroll_jr says:

    Four of the nine SCOTUS justices have to grant certiorari for a case to be heard. For Hobby Lobby and Conestoga Wood, I think we all know who those four men were. All have shown themselves to be hopelessly perplexed about how lady junk works and probably find magical explanations soothing.

  45. eggroll_jr says:

    The issue here is how the religious beliefs of a $2.2 billion a year for-profit corporation’s owners, under the Establishment Clause of the Constitution and the Religious Freedom Restoration Act of 1993 would exempt them from following federal law with regard to health coverage. The genius of the argument is that it ties strict scrutiny analysis (government has to show compelling interest, and that means used are the least restrictive) to the ACA with the First Amendment Freedom of Religion, which almost always gets strict scrutiny. Then Hobby Lobby’s brief basically writes itself. Point 1: Government failed to establish compelling interest. Point 2: Mandate is not least restrictive means. (And in fact, that was their brief!)

    The problem with the argument is rather fundamental. Abortion has never risen to strict scrutiny analysis, and the four drugs at issue delay or prevent ovulation, which is different than abortion. Astonishingly, the court has allowed Hobby Lobby to move forward, basing its argument describing these drugs as “abortifacients.” Ting-a-ling. Second, these people are nuts when it comes to a PR strategy! Any normal exchange-listed corporation, at least in its communications to the public, wants to appear to be in favor of equal protection and not wanting to get in other people’s beeswax. Granted, it may boost sales at their Christian bookstores, but it really is going to muddy the water for any corporation doing business with a broader swath of society.

  46. samNH says:

    A simple solution would be to turn the ACA into Medicare for All, a single payer tax supported healthcare system like the rest of the Western world has. There would be no need to object based on the ridiculous idea that a corporation has religious rights (what an idiotic idea).

  47. SkippyFlipjack says:

    I don’t see how they can claim to be “directly paying for contraceptives.” Health insurance is, by definition, not paying directly for any services.

  48. Badgerite says:

    Just shoot me! I can’t watch.

  49. Roman says:

    Umm, I’m sorry to disagree, but there is no actual evidence for that old story that the “eye of a needle” was in fact a gate or passage. Such an interpretation is inconsistent with the use of “a needle” in the text, as opposed to “the needle” (to which you change it in your parenthesis). Articles do matter!
    Interpreters of religious texts are prone to all sorts of contortions when the text and it’s logical implications trouble them. But the burden of proof lies with them.

  50. BeccaM says:

    As with money in politics, corporate rights >> human citizen rights.

  51. BeccaM says:

    Nevertheless — I don’t mean to nit-pick, but here goes anyway — you gave the impression that it was Dawkins who came up with the FSM, and furthermore that there was something inherently mean about doing so.

    The entire Pastafarian movement is attempt to point out the absurdity of religion in trying to make itself equal to science, as if science itself is nothing but a belief.

  52. BeccaM says:

    Too late. The ‘Quiver-full’ movement already went there.

  53. Mike_in_the_Tundra says:

    Don’t give them ideas.

  54. Mike_in_the_Tundra says:

    I suspect that Alito cannot move away from his religion’s dictates. For him, that’s more important than the Constitution.

  55. David Delmar says:

    I don’t think atheists generally are mean-spirited. Dawkins, however, clearly is. Meanness is an essential part of his cult of personality. It was for Christopher Hitchens as well. I happen to deeply admire the latter, either way. But for atheists who actually want to make a difference–that is, who are serious, as Dawkins claims to be–talking up the flying spaghetti monster does nothing but alienate the very people he purports to want to persuade. In that sense, I think that particular argument, and those that are similar in spirit, are crude and mean-spirited.

  56. pappyvet says:

    “2 da Pastor who wrote me-Being gay isn’t a belief.My soul isnt struggling& I don’t want arms of Heavenly Father around me.A girls arms? Yes,” Ellen Page

  57. pappyvet says:

    And what of the beliefs of the employees?

  58. David Delmar says:

    They all start with an ideology and go from there. Take it from a law student. The more SCOTUS cases you read, the more obvious the political nature of the Court becomes.

  59. pappyvet says:

    You’re right Becca. What they really want is the good old days of Jim Crow for LGBT folk. What really worries me is that folks like you and I remember very well some of the bad old days but now I fear the consequences of what these people truly want is far worse than the closet.

  60. kurtsteinbach says:

    I’m going to make the Parmesan strong with this one, too….

  61. kurtsteinbach says:

    Not all U.S. Supreme Court Justices start with an ideology and then work to justify it. Some actually take their responsibilities seriously. Clarence Thomas and Antonin Scalia clearly do not. Alito and Roberts do, except when the cause (corporate or Middle Ages religion) dictates otherwise. We need to apply legal ethical regulations to SCOTUS, because currently, they do not apply. They apply to all other Courts except SCOTUS. That needs to end, and Scalia, Thomas, and Roberts need to go. Kennedy needs to step down. He is like a yo-yo, and is the George W. Bush of SCOTUS….

  62. Mike_in_the_Tundra says:

    Scalia would love that.

  63. BeccaM says:

    Honestly, what I think is next on the agenda is religious objections to LGBT rights. Hiring, doing business with, accommodations and lodging, adoption, marriage recognition — the works.

    They’re already trying to go that route anyway.

  64. jm2 says:

    why, exactly, is this even in front of SCOTUS? how did it even make it thru the court system?

  65. emjayay says:

    Apparently judging by Kennedy’s questions today, it is highly suspected that he will go with Hobby Lobby. I totally don’t get it. You can make all kinds of fine distinctions with arcane legal names, but the principles here seem obvious and simple.

    Supreme Court justices like to think they are intellectually rigorous highly informed legal experts, but it seems like they all start with their ideology and work toward the legal justifications from there. Too bad most of them now are not on the side of the actual Jeffersonian/Enlightenment values the founders thought they were institutionalizing, but on the side of a Middle Ages version of their religion combined with a reverence for big business and the Republican party.

  66. PeteWa says:

    why… [is] merely stating “I don’t believe there is any kind of god or deity”
    deemed a horrific and unwarranted attack against them personally?

    it’s true for those with paper thin “faith”, for them it is a direct attack, because they know they believe in nonsense, and to not join in their willful delusion calls them on it.

  67. BeccaM says:

    If that’s so, then every single menstrual cycle is a sin, because an egg is being ‘spilled’

  68. pappyvet says:

    If these people were to win what’s next? Tax exemption?

  69. Mike_in_the_Tundra says:

    Actually Becca, many Christians say that the Lord’s order to Onan was a warning against contraception. That is really a stretch. I always thought it was a warning against male masturbation. Of course, guys never masturbate. Yeah, right.

  70. EdA says:

    Rather oddly (to me, as a non-lawyer, anyhow), is that no one seems to have addressed the situation when owners of a company have different views, all and each arguendo sincerely held and various of them being mutually exclusive, e.g., as to whether a woman should have the right to choose. It is certainly far from rare, for example, for some members of a family to be observant Catholic and others to be humanist. Are the courts supposed to referee whether or not employees should be provided with reproductive health care?

    “As of March 22, 2013, there were 263,499 holders of record of Walmart’s common stock” who owned approximately 3,374,000,000 shares of stock. Let’s put it to a vote — and spend years in litigation as to whether what should count is individual shares, which even John Roberts cannot claim are sentient, or the individual human beings who own the shares, whom Clarence Thomas may or may not consider to be people.

    And we cannot really leave aside the fact that the Hobby Lobby family had no problems with
    paying for family planning until the president happened to be Black.

  71. It is my most sincerely held religious belief that Hobby Lobby can slobby my knobby!

  72. BeccaM says:

    P.P.S. On a semi-serious note, why is there this constant stereotypical slur against atheists, that they’re ‘mean,’ insensitive and maliciously intolerant towards religious people?

    Why are people of faith — especially certain Christians — so incredibly threatened by the mere existence of atheism that merely stating “I don’t believe there is any kind of god or deity” deemed a horrific and unwarranted attack against them personally? Why is it okay to say someone doesn’t deserve an elected or appointed office because they’re an atheist? Or for a public figure to say that atheists aren’t really Americans, or that it’s impossible for an atheist to have moral beliefs requiring pacifism?

    Richard Dawkins may be a controversial figure, but he’s not ‘crude and mean spirited.’

    I myself am not an atheist. But I found it really sad to see obvious slander towards a particular atheism activist to be thrown about so casually, as if what Dawkins has said, written, or done automatically merits derision and disapproval.

    What I mean to say is even if Dawkins was responsible for inventing Pastafarianism, it wouldn’t be ‘crude and mean-spirited’ satire. It would be just as perfectly justified.

  73. BeccaM says:

    The marinara is strong in this one…

  74. BeccaM says:

    Actually, the Bible says nothing about contraception. And not because it didn’t exist back then either (it did, and a certain Mediterranean plant is now extinct because it was an abortificaent and was literally used up), but because both women and the children they bore weren’t considered actual people.

    The point throughout all of this — and indeed, even in the law Arizona nearly passed and which many other deep-Red states plan to — is they go out of their way to say that the asserted religious belief need not even be central to the teachings of the assumed religion.

    As I’ve commented elsewhere, you could even be a Protestant and say that YOUR religious beliefs require you to discriminate against women, African Americans, Muslims — anybody. You don’t even need to point at anything in the Bible or in a specific sect’s teachings.

  75. Badgerite says:

    Oh, please tell me that the SCOTUS hasn’t lost its collective mind. How is this argument any different than saying you cannot be compelled to serve black people at the lunch counter? At some point, someone is going to claim a religious exemption because they run a God fearing business and the Bible says something or other ( since the Bible is known for saying a lot of stupid stuff thrown in with the rest, finding the appropriate “the Bible says” shouldn’t be that hard).
    And I think it has occurred to the people arguing this that if they can establish a principle of religious exemption that maybe a lot of companies and corporations will suddenly decide that they have got religion just to avoid having to provide coverage for women’s health issues that might run afoul of God only knows what?

  76. Naja pallida says:

    Because it really has nothing to do with religious freedom nor Christian beliefs, despite using those people as useful idiots to push their real agenda, where the entire premise stops dead at the CEO class believing they should be able to ignore laws at will, for no other reason than because they’re rich.

  77. David Delmar says:

    Someone who apparently knows how to get through the “eye of a needle.” Didn’t Jesus say it was harder for a camel to do that than for a rich man to get into heaven? (I am aware that the eye of the needle refers to some ancient narrow passageway and not a “needle.”)

  78. pablo says:

    Unfortunately they’ve already won it. Swing vote Kennedy-while not a religious fanatic like the other conservative judges-ALWAYS votes for corporate rights over individual rights. We’ve lost this one.

  79. Badgerite says:

    Is it normal for a religious picture to make you hungry? Hmmmm! Spaghettiiiiii!

  80. They seem to have no problem buying merchandise from China which funds abortions. How can someone with 5 billion dollars even be a Christian?

  81. BeccaM says:

    P.S. Here is the prophet Bobby Hederson’s drawing of the Flying Spaghetti Monster creating the world, which is every bit as provable as the Bible’s book of Genesis or any of the stuff made up by Christians.

    It includes a mountain, some trees, and a midget, who I presume is awed by having just been touched by the FSM’s Noodly Appendage.

    As the prophet thus spake:

    In conclusion, thank you for taking the time to hear our views and beliefs. I hope I was able to convey the importance of teaching this theory to your students. We will of course be able to train the teachers in this alternate theory. I am eagerly awaiting your response, and hope dearly that no legal action will need to be taken. I think we can all look forward to the time when these three theories are given equal time in our science classrooms across the country, and eventually the world; One third time for Intelligent Design, one third time for Flying Spaghetti Monsterism (Pastafarianism), and one third time for logical conjecture based on overwhelming observable evidence.

  82. BeccaM says:

    Actually, the Flying Spaghetti Monster was revealed by the prophet, Bobby Henderson. The FSM and Pastafarianism was conceived of in 2005 in response to the Kansas state School Board’s decision to teach Christian-style creationism and ‘intelligent design’ alongside the legitimate sciences of biology, evolution, geology, and the rest.

    The argument in Kansas is they wanted ‘equal time’ for their particular beliefs. Thus Mr. Henderson submitted a request for equal time for the Flying Spaghetti Monster.

    It was in no way intended as a mean-spirited satire of religion. It was intended to point out the absurdity of allowing one particular religion’s creation myth to stand alongside real science — and ignore all the other religious beliefs and myths.

    Oh, Bobby Henderson also tied global warming to the disappearance of pirates.

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