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Conestoga Goes to Washington…and Wins

by Tony M.

Hobby Lobby, Conestoga Wood, and Mardel – and their human owners – won their day in court today with the Supreme Court deciding that the HHS regulation contraception mandate violates Federal law. The law in question is the Religious Freedom Restoration Act (RFRA), which requires that a person’s exercise of religion may not be substantially burdened (by government rule) unless the rule furthers a compelling government interest and is the least restrictive means of furthering that compelling interest.

Some of the good things about this decision: It makes it clear that for religious purposes “persons” means corporations that are for profit if it also means non-profits. HHS agreed that non-profits are persons for the RFRA, so they lost that point right out of the starting gate. It uses the highly principled and absolutely correct notion that treating corporate persons as having religious rights is for the sake of the religious rights of the humans who run the corporation. Something we at W4 had already pointed out not too long ago, here.

Secondly, the decision rather refreshingly invokes and uses the notion that “making a profit” and “operating according to religious beliefs” need not be separable in substance or in practice. The fact that a corporate person is intended to make a profit isn’t proof that such person can be divorced from the owners’ express intent to live religiously in the business of making a profit. (Which is not the same thing, at all, as making profit your religion. Not AT ALL at all, if you see).

Third, the decision shoots down the notion that the fact that the penalty of $2,000, being less than most employers will pay for most employees’ coverage, is not a substantial burden. They point out that the burden is not simply financial, but religious: the burden is on conducting their business according to their religious beliefs.

Fourth, the justices chose not to attempt to parse overly closely just how offensive an act would be to the religion of the burdened party. Instead they more or less dragooned the moral principle of non-cooperation with evil directly into their reasoning:

This belief implies implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another. Arrogating the authority to provide a binding national answer to this religious and philosophical question, HHS and the principal dissent in effect tell the plaintiffs that their beliefs are flawed.

Some things that the decision is less than fantastic on: The holding only applies explicitly to closely held corporations. To temper this, the rationale in the decision will clearly apply also to many non-profits organized with a religious theme, even if it is a very large corporation. However, although the decision seems to point out that there is no argument presented that forces the SC to say the holding cannot be applied to publicly traded corporations, the SC does not assume that result, I think they are leaving that for another day.

The SC ”assumes” that the regulation mandating cost free contraceptives (including the four that are abortifacient) are in pursuit of a compelling government interest. I find it appalling that they could make this assumption, given the incredibly frequency with which they dismissed boat loads of other government interests as being “not compelling” that had 10 to 1000 times the claim to the name. But apparently the justices did not mean that they were leaning in the direction of accepting the HHS argument on this point – they make a rather forceful argument against that - rather (so I gather) they were saying that for the purposes of this decision, even if you assume hypothetically that the HHS case that the contraceptive mandate is compelling, you still don’t pass the test that it is the least burdensome way of doing so. I don’t like the way they presented this at all, and I am sure there will be a liberal wacky judge who is perfectly willing to take their blasé “assumption” as proof positive that the mandate furthers a compelling interest.

The worst of what the Supremes do here is they accept the HHS “exception” or accommodation rule that allows objecting religious non-profits to self-certify that they object, and then their insurance co has to provide the coverage “without cost sharing” on the entity objecting. This rule is also being challenged in courts – but the Supremes have not heard the arguments on these cases yet, so they might have jumped the gun on the issue.

Comments (34)

Wow, Tony, thanks for this info. I didn't know about what you say in the last paragraph. That is indeed troubling. I strongly agree with you that an assumption for the sake of the argument will be treated later as binding precedent. Indeed, that is why the Cruzan decision is now functionally a loss for pro-lifers when in the immediate context it was a win--because Justice Rehnquist assumed for the sake of the argument (and his language was quite clear on that point) that a person has a "liberty interest" in refusing food and water by tube. _That_ is the part of the decision for which the name now stands rather than the larger ruling, which was that the state could constitutionally require "clear and convincing evidence" of the person's desires before allowing the withdrawal of food and fluids. (The liberals had wanted the evidence standard lowered.) So it's in fact _likely_ that the concession here will be treated as a "ruling" that providing contraceptives is a compelling government interest.

It will be interesting to see what happens on the HHS exception and whether they take the wrong turn on that when it is expressly brought before them. Is that being challenged in the Little Sisters of the Poor case?

That's encouraging. George regards it as up in the air whether the court will rule in favor of the phony accommodation.

Judge Martin Pryor has weighed in with an injunction against HHS in the EWTN case, preventing HHS from pursuing penalties until the case is actually tried, and presenting on his own the non-cooperation with evil argument as being likely to win at trial for EWTN. I would like to believe he is right, but I am less sanguine about it than some. Will have to read George's piece later.

Leaving aside my personal policy positions for the moment, I find it high unlikely that the challenges being made to HHS's accommodation are going to succeed. Kennedy's concurrence seems to recognize the legitimacy of the accommodation being offered to groups like the Little Sisters of the Poor, and given that these cases are being decided based on policy positions rather than "arguments" that means that the LSOTP are going to lose.

and given that these cases are being decided based on policy positions rather than "arguments"

I am not sure what you mean here. Can you explain? Are you saying that you think the Hobby Lobby case was decided on policy positions rather than arguments, or that the OTHER cases are? Or a third option?

If the first, wouldn't it be at least somewhat likely that YOU think that the decision was based on policy positions...because it goes against your policy?

Leaving aside my personal policy positions for the moment

Sure you did.

>I am not sure what you mean here. Can you explain? Are you saying that you think the Hobby Lobby case was decided on policy positions rather than arguments, or that the OTHER cases are? Or a third option?

I think this case was decided because the majority wanted to reach a certain result, and if Kennedy votes with the liberals against the Little Sisters the same thing will be true.

>If the first, wouldn't it be at least somewhat likely that YOU think that the decision was based on policy positions...because it goes against your policy?

I think both sides engage in fairly blatant judicial activism, I'm not trying to defend the liberals on the court.


>Sure you did.

William,

Let's just say there is a reason that Robbie George said that lawyers would need to make convincing arguments to convince Kennedy to rule against the HHS accommodation.

I think that any just impression that these decisions are based on policy considerations rather than legal considerations arises in no small measure from the pivotal role of Anthony Kennedy. Kennedy, to the extent that he does his own judicial reasoning rather than signing on to others' opinions, is far too driven by his own policy preferences. In this he differs from Scalia and usually from Thomas as well. Which is not to say that I always agree with Scalia. But when I disagree it's usually because I think he's applying the wrong legal principle and because _he_ deems himself to be being consistent with earlier precedent and hence principled rather than following policy preferences. (E.g. In the Westboro Baptist case.)

Dunsany, I see that you confirmed my guess as to what you meant. But what I was hoping you would do was explain why you thought that. That is, explain, from your perspective of course, why the decision was not argument-based. (For the record, it is perfectly possible - even if difficult at times - for people like the justices to decide a case in favor of their own preferred policies but to do it based on principle and argument rather than preference.

Even when liberals on the court use policy to drive their decisions, they pretend to gussie up the explanation with what can charitably be called an argument. That is to say, it has the outward appearance of an argument, which is intended to fool those who don't know better into thinking that the decision was not preference based but rooted in principle and logic. Sometimes that pretense is thinner than others - like Roe v. Wade, which even the liberals in legal circles say was argued badly and decided poorly. Other times the pretense is better. (And, on occasion, the liberals actually have principle in support of their preferences.)

What we see here is the conservative side with a majority, and the outward form of an ARGUMENT purporting to explain why the conclusion is based on principle and law and reason, not policy preference. If a liberal wants to say nay, you have to SHOW HOW the argument fails to be valid. Which, you know, is more than just claiming that "both sides push activism." It would require actually reading the text and showing the fallacies, for example. That's what I was hoping for - engaging with real substance instead of fluffery.

I think it is right that Kennedy is willing to push his preferred policy and make up stories to get that result. PP vs. Casey was an example of that, nary a law in cite. Er...sight. And if memory serves (always a bit chancey), I may have noticed Scalia doing so once. But I highly doubt that a thoroughly unbiased observer would find that Scalia does it as much as Kennedy, or as much as some of the others do, either. Like Roberts?

But here's an interesting question: if the justices are all so fired comfortable pushing policy rather than deciding by principle, why is it that just this past week they voted 9-0 against Obama on "recess appointments" that were not made in recess? No matter what an "unbiased observer" might think about the rationale, the result had to stick in the craw of someone on the Court, didn't it?

So to date no one has really tried to answer my charity question, I'll give it another shot.

The law taxes someone who gives a lot to charity one way, someone who gives a little another way. I may belong to the 'Church of Ayn Rand' that holds charity is evil because it promotes people to be parasites. So I (or the business I own) do not give to charity. AS a result my charity giving friend is taxed less, maybe a lot less.

Why do I not have the right to demand the same benefit under the law?

Is my belief based on my religious beliefs? Check!

Is there a burden on me? Check...using round numbers say we both make $100K a year and my friend gives $10K to charity. He may save $2,500 in taxes compared to me. So my burden is $2500. That's more than the $2000 tax in this case! Ohhh sure, since I don't give $10K to charity I actually have more cash left over than my charity inclined friend, but the business who opts to just not cover saves about $6K per year per employee or so.


So what's left? 'Compelling gov't interest'? I suppose you could argue that the gov't's interest in promoting charitable giving as a means of increasing the 'general welfare' is more important than my offbeat 'religious views'. But to me this is smelling more like interest group politics. The 'Church of Ayn Rand' will never command any serious weight with voters or with the ideological interests of the left or right. The 'contraception mandate' does hence you have the political justices of the court making a political call, not a judicial one.

We could start by pointing out, Boonton, that nobody here is asking for tax breaks for simply refraining from doing something. The analogue for your bizarre example would be someone's not obtaining some pill or medical treatment (because forbidden by religion to use that particular medication or treatment), then pointing out that those would have been tax-deductible medical expenses if they _had_ obtained those goods or services, then asking for a tax break equivalent to the tax break they would have gotten if they had bought something they didn't buy.

Which, to put it mildly, is not remotely like what Hobby Lobby or anyone else has requested.

It strikes me as a sign of the rabidness of the left on this issue that they apparently would prefer, as policy, that an employer drop all employee insurance coverage rather than that the employees receive coverage that doesn't happen to include a small array of drugs. This shows a near-religious commitment to those drugs. Better for the employees to be forced on the Obamacare exchanges and end up with worse coverage than for them to have very good coverage that happens not to include the sacred pills. Totally bizarre. I always thought lefties wanted employers to be generous with benefits to their employees. Guess something else is more important--namely, trying to force the employer to cooperate with distributing a particular set of sexually-related drugs.

The tax break is $2K for refraining from providing full coverage. HL's argument is that since 'full coverage' is defined as including contraceptives, they should have their cake and eat it too. Don't provide full coverage but don't pay the $2K difference.

What if their religious beliefs involved medical treatments derived from animal testing hence major life saving drugs were excluded? Should that get defined as 'full coverage' because their desire to exclude them is based on 'religious beliefs'?

"It strikes me as a sign of the rabidness of the left on this issue that they apparently would prefer, as policy, that an employer drop all employee insurance coverage rather than that the employees receive coverage that doesn't happen to include a small array of drugs"

I believe it was one of your commentors on the other thread who patiently explained to us that the 'conservative idea' for health care reform was for employers to stop providing coverage and instead individuals would buy it themselves. I guess you haven't gotten the memo. Under the ACA people wouldn't simply go without coverage, they would presumably get cash raises (since HL's expenses would drop) and they would be able to buy their own policies from the market.

But you are raising a point, it's not so much a 'committment to these drugs' but the principle that insurance belongs to the patient, not the employer. The idea that insurance should be used a tool for either the employer or other people to try to boss around other people in their insurance pool opens the door for a lot of potential nastiness IMO (and not just nastiness coming from your side...I could easily imagine an employer delightfully discovering he can use these 'religious principles' to, say, start using insurance to discourage childbirth)

Should that get defined as 'full coverage' because their desire to exclude them is based on 'religious beliefs'?

If you want to know what I think, I think that the whole quibbling about full coverage is stupid and that there is no federal mandate to require employers to provide full coverage. That should be left between employer and employee. As for how it is defined (if for some reason we have to define it), the idea that a narrow set of abortifacient drugs, not even including all hormonal birth control, are necessary to full insurance coverage is silly. It wasn't so very long ago that completely secular insurance companies said this as well. These were elective drugs not for treating any illness, hence were not treated as part of normal coverage. That issue can be decided independent of religious objections.

Under the ACA people wouldn't simply go without coverage, they would presumably get cash raises (since HL's expenses would drop) and they would be able to buy their own policies from the market.

Presumably? Why? And if they did, it is unlikely that they could get similar coverage for any such raise on the so-called "market," which is now a deeply interfered-with market. Maybe you haven't gotten the memo, but people are having _huge_ problems getting affordable, equivalent coverage that meets Obamacare's requirements.

But you are raising a point, it's not so much a 'committment to these drugs' but the principle that insurance belongs to the patient, not the employer.

The employer is paying for more of it than the employee, so I disagree.

"Bossing around," please. Since when does refusing to directly subsidize equal bossing around?

By that logic, a vegan employer who refuses to join a meat co-op and provide half a cow each year for his employees is bossing them around. Ditto for a pacifist employer not buying my ammo and range fee.

The problem is the way that insurance with umpteen cadillac benefits has come to be seen as a right, so not buying it with precisely that list of benefits is now bossing people around. I don't buy it. And say what you will, the commitment to _these_ benefits is undeniably tied to the ideological commitments of the left, as witness the fact that they aren't mandating that insurance companies pay for experimental cancer treatments, and probably not even for hearing aids (most insurance companies don't cover either of these, last time I checked) as part of "full coverage."

Since when does refusing to directly subsidize equal bossing around?

An interesting way to speak about *my* pay. We aren't talking about charity care here, this is pay in exchange for labor. The contraceptive using employee is no more being subsidized by the boss than the pregnant employee is. In reality both are using their own pay in different ways. The morality or imorality of those decisions rests with the employees/patients, not the boss.

By that logic, a vegan employer who refuses to join a meat co-op and provide half a cow each year for his employees is bossing them around.

If I started paying you in $100 bills that contained a smart chip that would cause them to incinerate before they could be used to pay for meat then I would indeed be 'bossing' you around.

There is a mechanism to boss people around, make it part of their employment contract. Then you won't have to make these painfully convoluted arguments why paying someone with insurance, which they may or may not opt to use to get contraception, is morally abhorant while paying them with cash, which they may or may not use to buy contraception, is just fine.

The problem is the way that insurance with umpteen cadillac benefits has come to be seen as a right, so not buying it with precisely that list of benefits is now bossing people around.

Actually contraception coverage appears to be costless. (see previous discussion for why that is not as counter-intuitive as it sounds).

And say what you will, the commitment to _these_ benefits is undeniably tied to the ideological commitments of the left, as witness the fact that they aren't mandating that insurance companies pay for experimental cancer treatments

Actually payment for cancer treatment is mandated. So is paying for pregnancy costs and a lot of other things that most of us consider a normal part of a health insurance policy. I'm not so sure why you're tossing 'experimental' in there. Does the ACA require insurance to cover 'experimental' contraceptives? I don't think so.

An interesting way to speak about *my* pay.
'

Because insurance coverage isn't the same as pay. You can stomp your foot all you wish and insist that it is, but it isn't.

By your logic, it's "just pay" for the employer to be required to pay for the employee's membership in a club that covers, say, five magazine subscriptions, where these can include Playboy. If the employer objects to being so required, the employer, on your view, is trying to "boss around" the employee about the way that the employee uses "his own pay." Which is silly. Special payments in advance for specific categories of goods and services, such as memberships and insurance premiums, are not equivalent to monetary pay which can be used in any way desired. As witness the fact that an employee cannot _forego_ both the maternity and birth control coverage (say, a 60-year-old single male) and take some calculated cost in cash instead to be spend in any way he pleases.

I'm not so sure why you're tossing 'experimental' in there.

Because those are the ones that aren't covered, even though they, unlike contraception, are treatment for an actual disease. In other words, these are ideologically loaded decisions.

By your logic, it's "just pay" for the employer to be required to pay for the employee's membership in a club that covers, say, five magazine subscriptions, where these can include Playboy.

Say such a subscription costs $20 per magazine...that would seem to say requiring pay to be in the form of cash or check payable in US currency would violate the employers religious beliefs. After all, last I checked the Playboy subscription dept. accepts US dollars for membership (actually I haven't checked but I'm sure US currency is a good way to get a subscription).


But while we're on the subject of Playboy.....I think there's clearly a sliding scale here.

1. Money - Since you can by almost anything with money it seems no one here has any objection to paying someone with money...even though we all know once you hand someone money there's no control over how they spend it.

2. Actual stuff - I could sympathize with a law requiring an employer to actually buy a Playboy and hand it to the employee. But this is a moot point since no employer actually buys contraceptives (or any medical service) and hands them out.


So between the two we have things where the a person gets something and they can use it lots of different ways, some ok some now with the person doing the giving. There's a perfect analogy for that, an Amazon.com gift card. Does Amazon have Playboy? Yes. Does it have Bibles? Yes. Does it have anything you can buy with money? No, but it has lots of stuff.

In that respect I think it's pretty much indisputable that the person who gets the card is the pivot in deciding how it gets spent. So there's no moral quandry in giving someone an Amazon gift card.

Now how about an adult bookstore where 99% of the inventory is immoral in your opinion but maybe they also sell gum, which you have no issue with. I would agree with you in that case, buying a gift card to the adult store is morally problematic even though there's nothing stopping the person getting it from simply using it to stock up on gum for the rest of the year.


If maybe your're a Christian Scientist who takes a dim view of medical care or if you're a strict vegan type who objects to anything derived from animals, then perhaps you'd view health coverage more like a gift card to an adult bookstore...something that's almost certainly immoral and could only be moral under very limited circumstances. But if you fall into that category you're not going to offer coverage anyway. So IMO that clearly puts coverage more in the boat of an Amazon.com gift card where responsibility clearly falls on the person who uses it, not the person who gives it.

As witness the fact that an employee cannot _forego_ both the maternity and birth control coverage (say, a 60-year-old single male) and take some calculated cost in cash instead to be spend in any way he pleases.

Say a company has nothing but 60+ yr old men working for it. There is no cash saving for 'declining' maternity coverage as there's no cost to providing such coverage (even if the booklet says maternity costs are covered). Consider, I'll happily sell you an insurance policy that covers you being eaten by zombies. I'll write you a billion dollar policy and only charge you $10. Shall I expect a check soon?

There is no cash saving for 'declining' maternity coverage as there's no cost to providing such coverage (even if the booklet says maternity costs are covered).

Actually, this comment comes from living in a world of thought that has only rigid insurance policies. Employers used to offer their employees mini-plans that did _not_ cover maternity, and these were, indeed, less expensive because of what they didn't cover. If an insurance company charges x dollars for a policy that covers a condition that won't actually be claimed, that doesn't mean that the cost to the person who buys the policy is in no sense influenced by the cost for the unneeded coverage. In fact, this precise point has come up in the whole Obamacare fiasco. People sometimes _want_ to pay _less_ than x dollars for less coverage, because they don't anticipate needing all of that coverage, and Obamacare won't let them. So you're just wrong here. A policy could easily be written that does not contain maternity coverage, and an actuarial estimate could easily be made of the proportion of the original premium that was covering that coverage, and the policy without maternity coverage could be sold for less. That's what less-coverage plans and mini-plans are all about. You pay lower premiums, you get less coverage.

If medical insurance is just "pay," then the Obama admin. could instead have required all employers with more than 50 employees, employed full-time, to give the employees (not the government) a lump-sum yearly minimum wage of x dollars, equivalent to what they deem to be the employer portion of the sort of insurance plan they want. It could be pro-rated for employees who work only part of the year and quit or are fired. But they didn't do that, and they didn't do that for several reasons. One is that they paternalistically don't trust the employees to use their money for health care, and this was supposed to be used for what the administration and its supporters deem to be health care. Second is that there are certain things that they really want to get everybody involved in funding and endorsing, and birth control is one of them. It's scarcely been hidden. This is all about women need this, this is proving that you believe in the equality of women, blah, blah. That ain't an Amazon gift card we're talking about there.

Again, hearing aids are not required coverage. That's just one example:

http://hearpo.tumblr.com/post/34671196216/obamacare

So contraception is regarded as more basic healthcare than hearing aids. That these are ideological value judgements should be obvious. If this were some kind of Amazon gift card, even within some extremely broad healthcare realm, it shd. be able to be used for hearing aids. But actually, not.

So, yes, that an employer would not want to participate in funding that kind of plan for reasons of conscience is totally understandable.

To backtrack a bit in the discussion, since I was working while you two were playing...

The law taxes someone who gives a lot to charity one way, someone who gives a little another way....The tax break is $2K for refraining from providing full coverage. HL's argument is that since 'full coverage' is defined as including contraceptives, they should have their cake and eat it too.

Congress and the courts have quite clearly said that reducing a tax is not the same thing as granting a deduction against tax, even if they have the same result. (Often, they don't have completely the same result because there are all sorts of qualifiers that apply to deductions). They are conceptually different and we use different language about them because of that. Just as the basic Obamacare mandate was decided by Roberts to be valid law ONLY because it imposes a tax rather than a penalty, even though they have the same financial effect. If Obama's lawyers had accepted the language of "penalty" because of the same effect, it would have been ruled unconstitutional. You cannot pretend that a tax is merely the absence of a deduction any more than a penalty is the merely the imposition of a higher tax rate. Words refer to ideas, and ideas have consequences.

In addition, in order to call the $2000 more that some people pay than others a "deduction" for the lucky ones who do provide full coverage, you would have to charge everyone else the $2000, including lots of people who AREN'T now subject to it, (such as those with fewer than 50 employees, etc). And that doesn't fly, because you only want to charge a select subset that $2000, which is why it is a tax and the absence of being subject to the tax isn't a deduction.

There is a mechanism to boss people around, make it part of their employment contract.

But that's exactly what DID happen before the Obamaniacs got hold of this: plenty of employers had their insurance written into the contracts with the employees, especially ones with union agreements. If a union wanted coverage for contraceptives included in the insurance, nothing prevented them from negotiating that very feature, perhaps as a trade-off for some other benefit the employer didn't want to provide. You know, negotiating?

My employer makes available to me an insurance contract that doesn't provide coverage for orthotics. Now, there are people in my extended family who would eventually become handicapped without orthotics. But if I want them for my kid, I have to pay full freight. Is that an example of my employer bossing me around? Only to the extent of saying to me "I won't pay for it, but you can." In other words, he is not being bossed around by me because he didn't contract to do that. That's what liberals apparently mean by employers pushing people around - not being forced to do things they didn't freely contract to do.

Thank you, Tony. You always put things very clearly.

Actually, this comment comes from living in a world of thought that has only rigid insurance policies. Employers used to offer their employees mini-plans that did _not_ cover maternity, and these were, indeed, less expensive because of what they didn't cover.

Less expensive for families having children? I think not. Telling me you can make something $100 less expensive for Bob by making it $100 more expensive for Sue (or for Sue's husband) accomplishes nothing.

If medical insurance is just "pay," then the Obama admin. could instead have required all employers with more than 50 employees, employed full-time, to give the employees (not the government) a lump-sum yearly minimum wage of x dollars,...

They could indeed have done that instead, so what? They could have passed a law making the speed limit on interstate highways 75 mph or made stamps triangles rather than squares.

Again, hearing aids are not required coverage. That's just one example:

Actually neither are glasses or dental care. Of these 3 I would say dental care is probably the most important to add (dental care is sometimes viewed as a luxury item in the US but neglected dental care does end up driving a fair amount of health costs). But generally health care is what you get from doctors or other health care professionals in the US. So condoms, which are over the counter, are not covered either.

If this were some kind of Amazon gift card, even within some extremely broad healthcare realm, it shd. be able to be used for hearing aids.

I think you're running around here, the Amazon question concerned the morality of giving someone something that they *could* but don't have to use for an immoral purpose. Your problem is you are fine with giving someone cash, you seem to think there's something different about giving someone something that is almost as broad as cash but not quite. Amazon sells lots of stuff but there are still a few things you can't get there, like Barnes & Noble readers. Might Amazone be a bit nicer if it's selection was a bit more diverse? I suppose but that isn't relevant to this discussion.

Congress and the courts have quite clearly said that reducing a tax is not the same thing as granting a deduction against tax, even if they have the same result.

I would read the ACA as a $2K tax per employee to fund health care that is zeroed out if the employer happens to offer a full coverage plan.

In addition, in order to call the $2000 more that some people pay than others a "deduction" for the lucky ones who do provide full coverage, you would have to charge everyone else the $2000, including lots of people who AREN'T now subject to it, (such as those with fewer than 50 employees, etc).

There is no legal problem with imposing a tax on companies with 50+ employees that is not imposed on smaller companies.

My employer makes available to me an insurance contract that doesn't provide coverage for orthotics. Now, there are people in my extended family who would eventually become handicapped without orthotics. But if I want them for my kid, I have to pay full freight. Is that an example of my employer bossing me around?

I would say no it's just an example of your employer offering you a crappy insurance program. I would say however if your employer didn't cover orthotics because he has a moral issue with it for whatever eccentric reason it would indeed be such an example. How could it not? "I don't offer orthotics because my tarror card reader tells me it's evil" "I don't allow beer at the company picnic because I believe drinking is immoral" "For ten year work anniversities, I offer a vacation to Disney World but not Vegas because I don't approve of gambling". All these would be 'bossing around'. Bossing around is acceptable in some contexts (although it may come off as rude). I think we as a society should reject the idea of using insurance as a tool for amateur social engineers who want to use benefits as a method of forcing unwanted behavior. I am willing to make an exception for abortion on the grounds that society is so divided on the issue and there's no duel purpose to abortion (as I pointed out elsewhere, 'abortificant' birth control drugs have purposes other than contraception such as lowering the risk of ovarian cancer for women with the BRACA gene...I don't think a woman should have to explain to her boss directly or indirectly why she is discussing or taking such pills even if the boss is paying for the insurance anymore than a man who gets a script for viagra is asked to report who he is having sex with, if anyone).

If this were some kind of Amazon gift card,...So, yes, that an employer would not want to participate in funding that kind of plan for reasons of conscience is totally understandable.

Actually it isn't. Let's keep this question under the spotlight until you can reconcile it. Pay someone with cash, which can be used to buy just about anything legal or illegal, and it's ok. Pay someone with an Amazon.com card, which can be used to buy a very broad array of items but nonetheless less diverse than cash, and all in the sudden it matters that Amazon sells Playboy?

Can you actually defend this idea with something better than saying we have an obligation to yield to anyone and everyone's 'conscience' without regard to whether or not it makes any sense?

Can you actually defend this idea with something better than saying we have an obligation to yield to anyone and everyone's 'conscience' without regard to whether or not it makes any sense?

Actually, if "we" is the government trying to make employers buy specific goods and services for their employees, I probably would say exactly that. Why the heck should the government be making employers buy *specific* stuff or memberships or medical plans for their employees at all? I don't even see a compelling government interest there at all. And I find it mildly amusing that you don't seem to mind all that much if an employer provides an insurance policy that doesn't cover orthotics because the employer wants to save money on the policy, but you're all in a huff if, God forbid, the employer does any such limiting for moral reasons. (Shudder.) What a load of baloney. There's nothing remotely less outrageous about an employer's simply not buying x for his employee because he doesn't feel like it than his failing to buy it because he has a moral objection to x. So, yeah, let a thousand flowers bloom in the world of employer-employee relationships. If you think that's tantamount to "our" allowing people actively to _harm_ others for their religion--not prosecuting those whose warped consciences tell them to blow up bombs or something--then you're nuts. You haven't said anything that extreme yet, but a sentence about "our yielding to anyone's and everyone's conscience regardless of whether it makes any sense" is so broad that it could cover that.

How about a law that says an employer must pay wages in the form of cash or check? As you may know, some large companies used to pay works in 'factory script'....essentially the 19th century version of 'Amazon cards' that could only be used at factory owned stores in 'company towns'. Needless to say such script was a target of the early labor movement as employers used the 'monopoly power' of such stores to inflate the prices workers had to pay for normal living expenses. I could however see an 'over bossy' type employer demanding that such script is the only way he can comply with his 'religious belief' to avoid paying for anyone's immoral purchases by controlling what could be purchased with 'his money'? That would be an example of 'government forcing'....which brings us too...

Actually, if "we" is the government trying to make employers buy specific goods and services...

1. Employers buy no such goods. As with the Amazon example, the employer doesn't buy the Playboy, Amazon buys it and ships it to customers it sells it too. If you actually have a law where employers have to buy anything and hold it available to give directly to employees, you'll have an argument here. Instead I think you're using language to hide an important difference here between buying something you object too directly and providing purchasing power to someone else that he or she MAY or MAY NOT use to buy something you object too.

2. 'Government trying'? What an odd phrase. In the charity example gov't is trying to get me to give money to charities, but that's a big difference between gov't passing a law saying I must donate to charity. There is no inherent right for you to demand the gov't 'not try' to get you to do something.

I could be sympathetic to an argument that some types of 'gov't trying' essentially amount to force. For example, if gov't said there's a $5 billion tax on each person but if you donate to charity it becomes $0, I'd agree that 'trying' is so extreme it's essentially force. But simply arranging taxes and subsidies in such a way that doing something offers benefits over not doing it, but it's reasonably possible to go either way does not amount to 'force' at all.

And I find it mildly amusing that you don't seem to mind all that much if an employer provides an insurance policy that doesn't cover orthotics because the employer wants to save money on the policy, but you're all in a huff if, God forbid, the employer does any such limiting for moral reasons.

In either case I'd have no objection to covering orthotics as part of 'full coverage'. That would mean any employer not offering it doesn't enjoy the benefits of from offering full coverage. There would be no need to ask why the employer wasn't offering it, costs or eccentric beliefs.

In terms of getting huffy, well look if your employer doesn't offer it for costs reasons then he is essentially saying he isn't paying you that. So you're underpaid, either convince him that you're worth it, or that the costs are not as onerous as he believes. If he denies it because he has some eccentric anti-orthotic belief, he is essentially trying to push you around. Granted you're free to go buy it yourself directly but you can't deny he is purposefully making your life more difficult over beliefs you don't share. If you honestly believe orthotics may save the life of someone in your family you're going to get huffy about it too.

This seems to me to be another instance of illiberal liberalism: "If he denies it because he has some eccentric anti-orthotic belief, he is essentially trying to push you around. Granted you're free to go buy it yourself directly but you can't deny he is purposefully making your life more difficult over beliefs you don't share."

If I worked for a Jehovah's Witness who was willing to provide me with health insurance, but not a plan that included blood-transfusions, I would not get huffy; I would respect his conscience in the matter, even though I happen to think his belief is a bit looney. And I would feel the same even if I agreed with Boonton's claim that the distance between the employer's action of paying for the insurance and the employee's making use of it is enough to obviate any moral responsibility on the employer's part -- as long as my hypothetical JW employer sincerely believes the opposite.

This is just what used to be regarded as common decency in a pluralistic society: liberality would urge us to make allowances for each other: and where there is a choice to be made between something that makes my life marginally more difficult and someone's deeply held moral beliefs, we yield to the latter where feasible.

That is, moreover what the law requires: When Congress passed the RFRA they required that these kinds of allowances be made for sincerely held religious objections unless the law as it stands BOTH serves a compelling government interest, AND there's no feasible way to make the law less restrictive to religious liberty.

In either case I'd have no objection to covering orthotics as part of 'full coverage'. That would mean any employer not offering it doesn't enjoy the benefits of from offering full coverage. There would be no need to ask why the employer wasn't offering it, costs or eccentric beliefs.

See, this is a good example here. You happen to think orthotics ought to be "full coverage" in the sense that not only should everyone just assume that's what standard insurance covers, but so much so that government ought to step in and TELL employers to cover it.

But think about it for a minute. Until about 20 years ago, hardly anyone knew what the heck they were. Until about 10 or 12 years ago, hardly ANY insurance company would cover them, and the few that did would require a hefty co-pay or co-insurance. Until Obamacare came along, it was common enough for insurance companies not to cover it that you could not possibly just assume it would be covered without explicitly reading in the plan coverage documents - unlike about 95% of the medicines we take, for example. So the question is, EVEN IF you think that it's OK for government to tell mid to large businesses to provide insurance because insurance is the norm for how people get health care, then what special right does government have to tell the American society as a whole what constitutes the norm of coverage - that's different from what is actually the norm? Why, nothing, of course. The Obama government takes it on because it feels the urge to TELL PEOPLE WHAT TO DO, because it is convinced it knows something about how they ought to live their lives whether they want to or not.

Just like what you object to in employers. Gee, now where did I lay that double standard.....

Christopher,

You're free to not get huffy, that's you. However I don't think the Jehovah's Witness should get the same tax treatment for offering his 'scaled down policy' as one offering a full policy simply because he claims it is about his beliefs.

And note a JW would object not just to blood transfusions but also organ transplants, perhaps donar skin grafts for burn treatment. His 'customized policy' would exclude lots of things that are very, very expensive. Note the 'test' here is whatever someone says are his beliefs are assumed to be his beliefs, no questions can be asked on either honesty or coherency. So say this policy was 30% less than a normal one...I could imagine lots of employers deciding to have 'sudden conversions' just for purposes of selecting plans.

When Congress passed the RFRA they required that these kinds of allowances be made for sincerely held religious objections unless the law as it stands BOTH serves a compelling government interest, AND there's no feasible way to make the law less restrictive to religious liberty.

Tony above argued that this should apply to publically traded companies of any size. So can you explain how a company like, say, IBM, can have sincere religious objections when 95% of IBM shareholders probably don't even know they own IBM shares? 'Sincerely held' objections might work for me if you agreed to ensure that's part of the test and not just window dressing.

IMO there insurance policies are complex enough to try to compare with their sliding copays, deductibles, in and out of network rates etc. There is a gov't interest in trying to encourage the establishment of a 'basic full coverage policy' in the market by giving tax advantages to policies above that bar. There is no religious liberty issue given the fact that policies that don't make that bar are not outlawed.

IMO you've fallen into the 'Festivus Problem' in your reading of religious liberty. You'll recall 'Festivus' was the fake religious holiday George invented on Seinfield to get out of work obligations. Religious liberty is not some VIP card you wave to bulldoze over anything that gets in your way. For example, if pork farmers get the gov't to pass a food tax to fund a subsidy to pork, that will make life for a Jewish deli harder. That in itself, though, is not a religious liberty issue that would entitle the owner to exempt himself from the tax, despite his very real religious objections to pork.

Tony
So the question is, EVEN IF you think that it's OK for government to tell mid to large businesses to provide insurance because insurance is the norm for how people get health care, then what special right does government have to tell the American society as a whole what constitutes the norm of coverage

What special right does gov't have to tell me giving to charity is the 'norm'? Ohhh wait, it doesn't. it just says money spent on charity results in different taxes than money spent on myself living large. But no one is told to do anything. It very well could be very few will give to charity despite the gov't attempts to encourage it. It could just as likely happen that orothocs won't be covered and many employers would rather pay more in taxes than buy a much more expensive 'full' plan.

Tony above argued that this should apply to publically traded companies of any size. So can you explain how a company like, say, IBM, can have sincere religious objections when 95% of IBM shareholders probably don't even know they own IBM shares? 'Sincerely held' objections might work for me if you agreed to ensure that's part of the test and not just window dressing.

It is very unlikely that a publicly traded company, organized from the beginning and run continuously without any stated religious sentiment of any sort, could claim a sincere religious objection to anything. Certainly not without a vote of the shareholders.

But not all large entities are organized that way. Some are formed right from the beginning with certain built-in principles, goals, restrictions, expressions of sentiment, etc. One can easily imagine a Tom Monaghan starting a business that had certain Catholic principles written into its organizing documents.

Furthermore, a lot of large companies, including publicly traded ones, chose to take on certain standards of practice and activity when they decided to stop trading with apartheid-related South African companies. In some cases they may have done this for reasons stated in secular terms, but in other cases based on religiously-based sentiment, but in either case it was based on a moral standard, i.e. something other than the profit motive. If you have a 90% vote of the shareholders agreeing to an amendment to the incorporation documents that forbids making a profit on the backs of apartheid-profiteers due to an explicitly stated religious respect for human rights, that becomes a sincerely held religious belief "of the corporation." (And, indeed, one that restricts the profit-motive of the entity.) And if at the same time they authorize the corporation to buy out the shares of anyone who disagrees with the new standard, what you end up with is a shareholder group as a whole in complete accord with the sentiment.

There is a gov't interest in trying to encourage the establishment of a 'basic full coverage policy' in the market by giving tax advantages to policies above that bar. There is no religious liberty issue given the fact that policies that don't make that bar are not outlawed....What special right does gov't have to tell me giving to charity is the 'norm'? Ohhh wait, it doesn't. it just says money spent on charity results in different taxes than money spent on myself living large. But no one is told to do anything.

'Toon, I think that you have a rather odd notion of what government "does" and "doesn't" do. One that more or less tries to look at "the rules" in a vacuum, without looking at the entirety of the cultural backdrop of the rules and the history that went into them. For example, the reason for a deduction for charitable giving includes within it a reflection on things like the fact that people can do more with direct giving to volunteer-run organizations than the government can with the very same dollars, for the very same objective like feeding the hungry. And, at the same time, the amount of the deduction bears a rational relationship with the amount of other good being accomplished with the money. We don't just hand out entirely arbitrary deduction amounts or tax credit amounts for behavior we want to encourage, you know. But in the case of the $2,000 tax, it is clearly not the case that that amount has ANY RELATIONSHIP AT ALL with the degree to which a company's insurance policy falls short of the "standard" being set, and indeed it would still land equally on a company whose insurance was considerably better than the standard but just refused to cover FOUR MEASELY DRUGS.

IMO there insurance policies are complex enough to try to compare with their sliding copays, deductibles, in and out of network rates etc. There is a gov't interest in trying to encourage the establishment of a 'basic full coverage policy' in the market by giving tax advantages to policies above that bar.

Then I take it that what you object to is the RFRA itself, with its insistence on "compelling interest" and "least restrictive means". Now maybe there's a worthwhile argument to have on that, maybe "compelling interest" is too high a bar for an across-the-board rule. But there is no way in the world the constitutional meaning of "compelling interest" extends to something like the establishment of a "basic full coverage policy". Just no way. Yes, there is a compelling government interest in the health of its citizens. Perhaps there is even a compelling government interest in the mode of accounting for health care, that it be via insurance (rather than other models such as direct government run medical care). But there is no way that the "compelling" interest descends so far as to establishing a basic full coverage policy - such a thing is merely a means to an end, not an end itself. You have to back up to a higher level of value to find the good thing that government has an "interest" in. (Once you find that, THEN you test whether there is a less restrictive means of accomplishing it.) Now, the government wants to represent that the good that the mandate serves, of which it has such an all-powerful interest, is something like "personal reproductive control", but what they actually mean by that is "personal reproductive control even in the event of having unrestrained sex". It is, of course, extremely problematic establishing such a good is a "compelling government interest" - even their own version of the interest, much less the real version. It is so problematic that the Supremes were unable to find that the case had been made, all they could say in order to go on and address the "least restrictive means" aspect was to say just simply assume it for the sake of the argument.

And there is, again, no way in the world that the government met the burden of showing that the mandate was the least restrictive means of meeting such a goal as "personal reproductive control". Even to try to argue the case is really rather laughable. So, what you really seem to object to is the law, not the opinion upholding the law.

In the case of companies boycotting S. Africa, there was no need to determine why they were doing it. Perhaps religious based demands of shareholders, perhaps the religious beliefs of managers (NOT the same as shareholders but a powerful bunch) perhaps they were being fashionable, perhaps they were responding to their customers' religious beliefs. Regardless it didn't matter because the law was simply responding to actions. Whether a company was boycotting S. Africa for religious or commercial reasons the taxes were the same.

So let's imagine you have a company whose 90% shareowner announces he doesn't believe in medical care derived from animals. As a result he offers employees a policy that only costs 10% of a regular one, as it excludes almost everything.

OK it's the company's 'religion' so that has to count as a full policy, no $2K tax for it. Suppose, though, the owner is seen riding about town eating meat, his wife in mink, and his kids getting treated at medical centers that make no effort to avoid animal oriented products. So what's this? A company with a religion or a 'Festivus' scam? A '90% vote' seems insufficient here.

The problem here is that a corporation is a legal fiction that enables its owners to delegate some of their powers to it. For example, the power to conduct business and earn profit. You cannot delegate your ability to have beliefs and faith. No corporation can have a religion anymore than an apartment building can have a taste in music.

For example, the reason for a deduction for charitable giving includes within it a reflection on things like the fact that people can do more with direct giving to volunteer-run organizations than the government can with the very same dollars, for the very same objective like feeding the hungry.

Why does the anti-charity 'religion' member care about this? Of course the gov't has its reasons for making donations deductible. That doesn't change the fact that he pays more taxes than his donating friend.

But in the case of the $2,000 tax, it is clearly not the case that that amount has ANY RELATIONSHIP AT ALL with the degree to which a company's insurance policy falls short of the "standard" being set, and indeed it would still land equally on a company whose insurance was considerably better than the standard but just refused to cover FOUR MEASELY DRUGS.

So what? As you pointed out a policy can fall short for lots of reasons. Any reason in the world is fine as long as you claim it's 'religious'.

But there is no way in the world the constitutional meaning of "compelling interest" extends to something like the establishment of a "basic full coverage policy". Just no way.

Sorry, you're ok with charity deductions. 'Feeding the hungry' is not in the Constitution as a gov't power. If you want to play the Libertarian card then we can play it.

I reserve the right to summarily delete, or revise for my amusement, any future Boonton comment that relies for its reasoning (such as it is) on some cartoonish hypothetical -- a firm the employs only aged men, a public corporation that "converts" to an exotic religion, a church of Ayn Rand incorporated to wage war on charitable deductions.

In the case of companies boycotting S. Africa, there was no need to determine why they were doing it...Regardless it didn't matter because the law was simply responding to actions.

There wasn't any "law responding to actions" here, the point of the example was to show that it is indeed possible for a large entity, including a publicly traded corp, to believe religious things and do things for religious reasons, in the derived sense of having the religious beliefs of its people incorporated into the formal arrangement of the corporation.

The problem here is that a corporation is a legal fiction that enables its owners to delegate some of their powers to it. For example, the power to conduct business and earn profit. You cannot delegate your ability to have beliefs and faith. No corporation can have a religion anymore than an apartment building can have a taste in music.

No, the problem here, 'Toon, is that you won't bother to think something through from the beginning of a sentence to the end. If a corporation is merely a legal fiction and nothing else, then you wouldn't be able to delegate powers to it. But besides that, a corporation isn't a legal fiction. It is a real thing. What you might have said that would have actually held some real validity is that a corporate "person's" personhood is a legal fiction - but then we already knew that.

You deliberately refuse to consider things that have already been pointed out. In particular, here, (one more time, with FEELING this time): a corporation is many people acting in concert with (and by reason of) a formal arrangement. The formal agreement they make and express in the incorporation documents is a real thing, they are not fiction. The people in the corporation do things as people AND as members of the corporation - and sometimes these things are based on beliefs and faith. If they do them as agents of the corporation because the corporation was formed by these people explicitly in order to pursue actions based on religious belief, then in that very sense the corporation "has" the religious belief that is IN ITS PEOPLE and chosen by them to be expressed in its incorporation documents, by-laws, rules, etc.

Rights that belong to people as people still belong to them when they associate with each other. Rights that apply to them in their actions taken for their own religious belief also apply those same people in their actions taken in association with others to further those very same religious beliefs. The rights apply to the acts performed associatively because they are, also, acts of individuals in the association.

The fact of an incorporation format doesn't undermine any of that in the least. Therefore, rights that are rights of people are ALSO rights of corporations for the sake of the people who choose to act in concert with each other corporately. Otherwise, the New York Times would have no right to freedom of the press (only its reporters would) - nor would it even have a right to exist (for it is an association that depends on the right of association). Otherwise, the Episcopalian Church wouldn't have a right to worship, only its members would. Otherwise, a labor union wouldn't have a right to negotiate with the employer, only the laborers would. Which is all pure nonsense and runs counter to all legislation and jurisprudence.

Sorry, you're ok with charity deductions. 'Feeding the hungry' is not in the Constitution as a gov't power. If you want to play the Libertarian card then we can play it.

Boy, what a non sequitur that is. Actually, it is at least 2 different non sequiturs. You are just throwing out goofy comments without rhyme or reason. But please, please don't bother to explain it - I am not sure I could stand it. We'll just take it that you don't like religion, nor religious liberty, and leave it at that. 'nuf sed.

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