Tuesday, March 25, 2014

Ghosts of Rulings Past

Today is the day the United States Supreme Court will hear arguments as to whether or not private for-profit companies can claim a religious exemption from the Affordable Care Act because it would provide contraception to their employees, something the corporate owners don’t believe in.  Religious groups are already exempt from the rule, but Hobby Lobby, a crafts chain owned by very conservative religious people, want in on it too.  (Interestingly, the company was fine with the contraception coverage in their health insurance until Obamacare came along.  I wonder what it was that changed their minds.)

Given the make-up of the court and their previous rulings that have been nearly obsequious to corporate interests, a lot of watchers are understandably nervous that the justices could rule that corporations can have religious views.  That would open an entirely new chapter in corporate personhood, and the consequences — intended or otherwise — could fundamentally change the relationship people have with their employers and corporations have with their customers.  It could also make laws such as the one vetoed last month in Arizona that allowed companies to discriminate against certain customers possible.

As Sahil Kapur explains, it might not be a slam dunk for Hobby Lobby based on previous rulings by the Court written by one of its most conservative and Catholic justices: Antonin Scalia.

In 1990, Scalia wrote the majority opinion in Employment Division v. Smith, concluding that the First Amendment “does not require” the government to grant “religious exemptions” from generally applicable laws or civic obligations. The case was brought by two men in Oregon who sued the state for denying them unemployment benefits after they were fired from their jobs for ingesting peyote, which they said they did because of their Native American religious beliefs.

“[T]he right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability,” Scalia wrote in the 6-3 majority decision, going on to aggressively argue that such exemptions could be a slippery slope to lawlessness and that “[a]ny society adopting such a system would be courting anarchy.”

“The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind,” he wrote, “ranging from compulsory military service, to the payment of taxes, to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races.”

That opinion could haunt the jurist if he seeks to invalidate the birth control rule.

“Scalia will have to reckon with his own concern in Smith about the lawlessness and chaos created by liberal exemptions to generally applicable law,” said Adam Winkler, a constitutional law professor at UCLA. “For him to uphold an exemption now is to invite more of the lawlessness that he warned about.”

The case comes down to what takes precedence in the laws in this country: religious beliefs or the Constitution.  Justice Scalia answered his own question:

“To permit this,” he wrote in Smith, quoting from an old court decision, “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

A ruling is expected by the end of June.

2 barks and woofs on “Ghosts of Rulings Past

  1. Well…. Justice Scalia has been prescient on the issue of gay marriage recently (although for the wrong reasons). He may be right again.

  2. Perhaps it is because I’ve slipped into the sin of despair, but I don’t believe Scalia would have any problems with ruling against himself/reversing his earlier decision.

    Very interesting that Hobby Lobby didn’t have a problem with insurance and contraception prior to ACA. I wonder why our so-called news people never explore these questions and behaviors.

    BNS (big neurotic sigh)

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