Wednesday, July 2, 2014

What Does the Hobby Lobby Case Mean?

Hobby Lobby doesn’t have to cover birth control in their health insurance plans.*  At first, that might sound very reasonable to some people – until you find out why.

To be completely honest, the both social liberal and the financial conservative in me are substantially at odds over this issue.  Speaking of issues…

Let’s talk about “framing the issue.”

This is something I talk to kids about when I do the occasional Career Day at a high school or middle school.  For the purposes of this conversation we’ll ignore how weird it is for me to be invited to a Career Day to talk to a bunch of 8 year olds as a criminal defense lawyer.  Inevitably, one of the kids asks me what you have to learn to be a lawyer, or they have a pre-prepared question like “what are the important skills of being a lawyer?”  My answer to that type of question always includes the phrase “framing the issue.”

I invite a kid in class (and I always ask for the one who gets in trouble most for talking) to come to the front and have a debate.  Then I tell the kid that his or her job is to convince the class to eat only one type of pizza and they can pick whatever type of pizza they like.  The kid then blathers on about how great pepperoni is, and that it goes great on pizza – it’s salty and it’s delicious – and it’s a meat so it goes good with cheese and tomatoes and sauce.  Blah blah blah.  At that point I tell the kid to sit down.  Then I tell the class: Little Bobby here wants you to only eat pepperoni pizza.  Little Bobby doesn’t want you to have choice.  But I think you should be able to get whatever you want.  If you want just cheese, you should have it.  If you want peppers and sausage, you should have it.  And if you want to have pepperoni, you should be able to eat that too – but it should be your choice.  Who thinks you should have a choice?  And then all the kids raise their hands.

I turn to little Bobby and I say:  “You lost, kid.  Do you know why you lost?”  Then he cries, hilariously.  It’s because I cheated.  I changed the question.  Little Bobby got “convince the class to eat only one pizza topping for the rest of their life” and I got “Isn’t choice great?”  The truth is that it’s much easier to get people to agree to the second question.  So I tell the class: “The moral of the story is this: if the answer to your question sucks, get a NEW QUESTION.”**

That, kids, is lawyering.  (and they definitely don’t teach it in law school)

Back to Hobby Lobby.  There are a million and one different ways to frame the Hobby Lobby question (and lucky for us, framing is half off this week).  Just a few include:  If you wanted to appeal (on behalf of Hobby Lobby employees) to people who were corporation friendly but were straddling the fence, you might say, “Can a non-public corporation qualify as a person?” or “Can a corporation actually practice a religion?” If you were a pinko commie liberal who wanted a really negative reaction to the question, “Is it reasonable for a group of elderly men to decide important issues about women’s vaginas?”

Lawyers usually differ pretty drastically on how they frame an issue to the court.  However, people on both sides of this particular case tend to agree that the first 2 questions presented in the above paragraph are at least part of what we are arguing over.

And it’s strange that we’re arguing over it because if you asked people on the street, probably 90% of them would say “No” to at least one of the questions – either “Can a corporation qualify as a person?” or “Can a corporation actually practice a religion?”  Yet, we still seem to be asking the question.

And we may be putting the cart before the horse a bit, so let’s talk about why the case came to be.

Hobby Lobby is a closely held corporation, for profit, and is owned by religious people.  They have the collective belief that life begins at conception and it is against those people’s religious beliefs to terminate life or use contraception.

The Patient Protection and Affordable Care Act was hatched from a man named Obama in 2010.  It is affectionately and not affectionately referred to as “Obamacare.”  For the purposes of today’s conversation, we’ll call it the ACA.

The Department for Health and Human Services (HHS) is involved in this lawsuit because it is the job of the HHS to make regulations to enforce the ACA – and specifically in this case we’re talking about employers’ duty to provide “preventative care” for women without “any cost sharing requirement.”  So the law says that companies like Hobby Lobby providing group health care coverage to provide preventative care.  Most specifically, we’re talking about whether Hobby Lobby has to provide coverage for birth control.  (It’s generally accepted that birth control does more than just prevent conception, and is a preventative for some…other…unwanted…lady part complications or disorders and I don’t know how to end this sentence and I’m uncomfortable so I’ll just stop).

Hobby Lobby’s argument is that the Religious Freedom Restoration Act of 1993 allows them to exercise their religious beliefs and that the HHS is infringing on their religious freedom.

You may be asking, “why do we have a Religious Freedom Restoration Act of 1993 if we already have the Free Exercise Clause of the First Amendment?” and I assume you’re asking that question to Sam Marcosson because I am not a Constitutional Law professor.  He’s not here, so you’ll have to ask him through Facebook.  He loves that.

Speaking of Sam Marcosson – he said this about SCOTUS’ Hobby Lobby Opinion:  “The Court holds that because the Government found a way to provide coverage for employees of religious nonprofits, this is an alternative that could have been used for employees of companies like Hobby Lobby -- and the RFRA requires the government to look for alternatives before burdening religious beliefs.  In other words, the decision doesn't necessarily mean that employees of these companies won't get coverage for contraception.   It does mean, though, that the Court has interpreted the RFRA in a way that is spectacularly wrong and dangerous . . . and (in my humble opinion), which violates the Establishment Clause.”  Also, Marcosson might be the only person who believes his opinion is humble.

Justice Ginsburg wrote a pretty spectacular dissent in the Hobby Lobby case (Sotomayor joined and Breyer and Kagan joined in part).  It starts with this quick jab to set the tone:  “In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.”

Which, in my opinion, really sums up my problem with the Hobby Lobby case.  The opinion was reckless and leaves a wide open door for corporations to violate the law because of the “corporate religion.”  What kind of message is this supposed to send about fair hiring practices, for example?

Ginsburg follows that up with an on-point quote from the Supreme Court itself, “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 856 (1992). 

So Ginsburg’s point is that allowing corporations to violate the law for “religious beliefs” goes too far, and that birth control is important for women to stand on equal professional and social ground.  Not to mention the fact that the Supreme Court has already held that the exercise of your own religion doesn’t mean you get to steal home base with no repercussions.  Another way to say that would be, “An individual’s religious beliefs do not excuse him from compliance with an otherwise valid law that the State is free to regulate.”  That’s a quote from the Smith case where 2 Native American fellas exercised their religious beliefs by eating some peyote, and were refused unemployment benefits.  The Supreme Court of the United States refused to say that religious beliefs could be used like a shield in such a manner.  But for some reason Hobby Lobby gets the exact opposite treatment.  They literally used religious beliefs to excuse them from compliance with an otherwise valid law.  And SCOTUS let them.

Also, corporations aren’t people.  And the day I see a Wal-Mart fold its hands and say the Lord’s Prayer, I’ll believe that corporations can exercise religion.

There are several more nuggets of goodness from Ginsburg's dissent but I'm going to let you mine those yourself.  I have blathered on too long.

Next we’ll be arguing over whether companies can refuse to hire gay people based on the reasoning of the Hobby Lobby case in 3…2…

*Maybe.  We don’t really know yet.  It depends on “less restrictive alternatives.”

**Just about 100% stolen from a scene in the movie "Thank You for Smoking."

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