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A victory, for now, against the HHS Mandate

I'm Johnny-come-lately, as so often, on the latest stories, but in case you haven't heard: A federal court has enjoined the application of the HHS mandate to a private business owned by individuals who object on grounds of conscience.

In all the quite legitimate concern for religious organizations and for the Obama administration's invidious attempts to redefine religious liberty, privately owned businesses have to some extent been overlooked. They are not even putatively, under any interpretation, protected from the Obamacare mandate, and unfortunately I don't see anyone holding rallies or letter-writing campaigns for them.

I admit to being pleasantly surprised by this ruling and to having my fingers crossed that it survives appeal. My impression has been that often private businessmen who are not running a self-described "religious" organization have little protection for their consciences. I certainly don't expect them to be protected from laws that require them to recognize civil unions, to give spousal benefits to homosexual partners, and the like. Perhaps my pessimism there is a result of the extreme deference our court systems pay to the god of "nondiscrimination."

In any event, the court ruled that for the time being, while the lawsuit is pending, the law cannot be enforced against the private company. That isn't a ruling on the merits of the case, but it does show (if I'm understanding correctly) that this particular court did not think the case was without merit so that there was no point in moving forward.

It also showed that the court considered that the owners of the business could claim harm to themselves by the enforcement of the law, despite the fact that the business is incorporated. This is a legally rather important point, all the more so since the Obama administration argued, ominously, that the company could not possibly be covered by the Religious Freedom Restoration Act because it is for-profit and incorporated.

This raises the interesting question, which Wesley J. Smith discusses a bit here, as to whether once people incorporate the resultant entity can be said to have religious liberty interests. Smith hypothesizes that the size of the corporation, in terms of whether the stock is widely held or closely held, may be relevant. Evidently the court raised but did not draw a conclusion about that question in its injunction, concluding instead that the individuals themselves could suffer harm if the law were enforced against them. Still, that seems to me (as an amateur) to be legally relevant, because it would seem to mean that once you start a corporation you do not cease to exist as individuals for the business purposes that corporation carries out. Hence, your individual religious rights could be infringed by governmental actions against the business you have incorporated. Verry interesting, and I hope it holds up.

Comments (10)

Will the Obama administration have the good since to view this as a narrowly found isolated case and not appeal the decision of the court. Northern Michigan Congressman, Bart Stupek, thought he had assurances the Obama administration would not pursue this kind of case.

On the other hand, another fed court dismissed "without prejudice" Belmont Abbey's suit against the mandate, claiming that BE's "injury is too speculative to confer standing and that the case is also not ripe for decision." I'm probably missing something, but maybe one of your legally trained readers can explain why BE's injury is too speculative while Hercules Industries' is not. Maybe it makes a difference that Hercules was seeking an injunction, while BE is seeking judgement against the mandate itself.

This raises the interesting question...as to whether once people incorporate the resultant entity can be said to have religious liberty interests.

One thing that's always puzzled me is why this has to be a matter of religious liberty at all. It should be everybody's liberty - whether believer, atheist, corporate entity or space alien - not to have to pay for someone else's sexual impulsiveness.

Bill, that could just be inconsistency between the two courts, which happens a lot. Or it might be that the Obama admin. has said that specifically religious organizations such as Belmont Abbey won't have the injunction enforced upon them for a year, whereas Hercules Industries would have had it enforced immediately.

On "religious liberty": I don't know how widespread this definition is, but in Michigan back in the 90's a decision was handed down by the state supreme court that home schooling had to be allowed without a state certified teacher if the family had a "religious" objection to being supervised by a state certified teacher. At that time, the Clonlara organization, which was a completely secular home schooling organization, stated to us (when we were considering moving to Michigan) that the court had defined a "religious objection" in some extremely sweeping terms like "any strongly held conviction."

The issue almost immediately became moot, because in that same year the Michigan legislature passed an extremely homeschooling-friendly law. But I've always been intrigued by that definition of a "religious objection." Surely there are much narrower definitions! For example, when you are trying to be a conscientious objector (e.g., to union membership) you have to show that the opinions in question affect your life in multiple ways and are part of a comprehensive worldview, or something like that.

On the other hand, another fed court dismissed "without prejudice" Belmont Abbey's suit against the mandate, claiming that BE's "injury is too speculative to confer standing and that the case is also not ripe for decision."

Not only is the rule not applicable to religious institutions for another year, but there is a second point. Depending on how you look at it, the definitive imposition doesn't come about until the entity files its tax return, and then it has to pay the tax if it doesn't have insurance. An idiot court can say "you haven't been harmed if you didn't pay the tax and the administration didn't catch you and/or make you pay." That's kind of the idea behind the anti-injunction law that the SC fought about: a tax law isn't ripe for court intervention until the law actually imposes the tax. Of course, there is room to argue about whether the tax is imposed from the first day it for which the insurance is required, or not until the day the tax return is filed.

I wouldn't get to worked up about this because everyone knows it's going to the Supreme Court (where who knows what Roberts will claim the mandate is.)

On a tangent to the HHS mandate (boy that sounds like a ship name), I have something I want to comment on that is likely hijacking the thread. Please delete this if it is, but it was brought up briefly in an earlier posting but the conversation never really covered it. Anyways, as a Protestant, I believe the HHS mandate is a violation of religious freedom and stand against it. However, I consider the Catholic Church to be no better allies than the Russians were to the US and Britain in WWII. Why? Because the same church that is screaming about the rule of law and liberty came out just a few months later and wholeheartedly supported an illegal executive order by the same administration to legalize over a million people here illegally. This doesn't include the consistent encouragement of the Catholic Church for illegal immigration. The only conclusion I can come to is that the Church doesn't have respect for our form of government and is quite willing to have the law broken as long as it further's its agenda. This is the same church that has done nothing to discipline those members, like Pelosi and Sebelius, who are significant drivers of the HHS mandate. In conclusion, I reiterate that I support repealing the mandate for religious freedom reasons. Don't expect me though to cry or worry about how this effects the Catholic Church. The Catholic Church has only itself to blame.

I'll leave the comment but try to prevent a general thread starting from it. The bishops certainly don't have a lot to brag about when it comes to legality generally, given their support for illegal immigration. However, we have to admit that religious liberty and immigration law are two different legal issues and even moral issues. I don't actually mind too much that a religious group should be issue-driven rather than having a coherent legal philosophy. They're bishops, not lawyers. I myself want to have a coherent legal philosophy, but that's different. Who ever said that a church body is supposed to be leading us on principles of legal structure and coherence? And there is even one level at which the principle, "The government shouldn't be forcing employers to buy contraception and sterilization" actually is more important than "The government should deport illegal immigrants."

As for not disciplining Pelosi and Sebelius, blame their individual bishops not the entire Catholic Church. I bet there are bishops somewhere who would discipline them.

I have plenty of disagreements with the American Catholic bishops, but even as a Protestant I've been puzzled by the "who cares about that crew" attitude, which crops up even among some more traditional Catholics. Sure the USCCB can be annoying and frustrating as heck, but give credit where it's due rather than engaging in some kind of schadenfreude--"Ha, they're getting what they deserve!"

The central problem with the HHS mandate is not that it forces a man, under penalty if he refuses, to violate his religious conscience, although that is wrong enough. The central problem is the sequelae of that violation, which is the practical public negation of that man's doctrine by the man himself. I believe this negation is the true purpose behind the mandate, and it is sinister.

Freedom of religion becomes an irrelevant right if religious expression itself is impossible in public life. Everyone here, I am sure, is more than a little familiar with stories of forced conversions around the world. Nothing short of forced public conversion to the doctrines of those who control the US state is afoot under Obama, Sebelius, et al.

Forcing a man to violate his conscience degrades his inherent dignity. Forcing him to do it in public destroys the credibility of his testimony to the truth by which he claims to live. Checkmate.

Alphonsus, that is very like the point I have made to some Catholics, particularly some clergy. Once you have men violating their consciences in a tangible, visible act, you start the process of his losing even the (damaged) remaining connection with his faith.

Just a FYI, Sebelius was rebuked and told not to present herself for communion by her bishop in Kansas.

The only conclusion I can come to is that the Church doesn't have respect for our form of government and is quite willing to have the law broken as long as it further's its agenda.

Chris, I can only say that the Church leaders who have supported illegal immigration do it not only in defiance of law and civil order, they don't even have the excuse of doing it in order to further some external agenda that such immigration might serve. The only thing they have that tells them to be such numbskulls in favor of illegal immigration is, apparently, a knee-jerk bleeding heart liberal reaction of give physical or monetary aid to anyone who doesn't look like me, doesn't act like me, doesn't sound like me, doesn't think like me, doesn't live near me, or doesn't believe like me. Even if it hurts my family, my neighbor, my school, neighborhood, parish, town, workplace, or nation. Apparently, the usual meaning of "neighbor" goes out the window; to a knee-jerk liberal "neighbor" means someone with whom he has no ties, not even those of proximity.

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