Thursday, December 5, 2013

When Government Mandates Lead to Tyranny....

"To compel a man to furnish funds for the propagation of ideas he disbelieves and abhors is sinful and tyrannical." -Thomas Jefferson

Should the federal government have the authority to require private companies to provide insurance coverage that violates the owners' religious beliefs? Supporters of the Affordable Care Act, including President Barack Obama, say "yes," and most conservatives, especially those with Christian beliefs, say "no." The latter group includes Hobby Lobby Stores, a privately held company owned by the Green family, who are committed Christians. The case before the Supreme Court, known as Sebelius v. Hobby Lobby Stores, confronts the question of whether government-mandated insurance coverage must give way to religious freedom, even if we're talking about the religious beliefs of owners of secular, for-profit companies.

Whenever the government passes laws or issues regulations affecting the conduct of citizens or private enterprise, it does so with a net increase to its own power and authority and a net decrease to the amount of freedom enjoyed by its citizens (as well as by the organizations and/or businesses consisting of its citizens). It is a fantasy to conceive of an organized society where the people exercise unlimited freedom, but those who cherish the ideals and principles enshrined in our nation's heritage desire a nation that errs more on the side of individual freedom than government power. And while most Americans recognize the need for government to protect people from harm, those who cherish freedom rightly believe such protections should extend to their own families, convictions, and values.

When the Constitutional Convention concluded its business in September 1787, their president George Washington sent a letter to the president of the national Congress addressing the delicate balance between individual liberty on the one hand and community needs (and government authority) on the other. In the letter, Washington wrote: "Individuals entering into society, must give up a share of liberty to preserve the rest." It's an easy argument to make that Washington foresaw the need for individuals to support a national government with their tax dollars, accept a standing army, submit to certain trade regulations, etc. It's inconceivable, however, to argue that Washington and the delegates to the Constitutional Convention would've been okay with the federal government mandating that companies pay for birth control, especially when the owners of such companies believe some of those birth control options include abortion-inducing drugs. On the contrary, it's quite reasonable to conclude that had the Federalists intended to give the government that much power, there would've been a whole lot more anti-Federalists opposing the Constitution - and such a Constitution never would've been ratified!

My liberal or "progressive" friends will likely respond with arguments that the nation has evolved since the days of our Founding Fathers and will point to selective court decisions which seemingly support such expansive government mandates. First, not all change is good. Second, when it comes to making changes, there's a right way to go about it - and a wrong way to go about it. And third, the courts are not always right. (Dred Scott anyone?)

Of course, liberals don't like to be pointed back to the Founders. They certainly don't like to hear talk about how we should still (even in 2014) respect the principles and ideals our nation was founded upon. They typically respond with a barrage of predictable, worn complaints: the Founding Fathers didn't give women the national right to vote; the Founding Fathers didn't allow for the direct election of US senators; it's 2013 (almost 2014) and not 1787; blah, blah, blah, blah. I've heard it all. And the Founders weren't the backward, primitive bigots so many of their left-wing detractors today would have us believe. If you're in that camp, put away the Howard Zinn and Noam Chomsky and actually read what the Founding Fathers themselves wrote. But if you aren't comfortable digging into original source material, then pick up a copy of Vindicating the Founders by Thomas G. West. It puts everything in a much fairer context. Think West is too favorable? Then grab a copy of Jefferson's Pillow by Roger Wilkins. For that matter, you can also read Martin Luther King's "I Have a Dream" speech or his Letter From a Birmingham Jail, where he appeals to the founding principles of our nation, rather than condemn the Founding Fathers.

But even if you persist in believing the Founders were mean, bad, primitive, blah, blah, blah, the fact is that they built into the Constitution the means for it to expand and adjust to changing circumstances. It's called the amending process. And that's how our nation abolished slavery (something many, if not most, of the Founders wanted to do even back in the founding era), nationalized the right of women to vote, and provided for the direct election of US senators (instead of via the state legislatures). What the Founders did NOT provide for was allowing the national legislature or the national judiciary to ignore or redefine the Constitution. For this reason, the original intent of the Founding Fathers is relevant to understanding how much authority the federal government today should have when it comes to regulating the conduct and spending of individuals or private enterprise.

While the Founders understood that citizens and organizations (non-profit or for-profit) must surrender some rights in order to be a part of an organized community, they nevertheless believed strongly in the rights of speech, religion, and conscience for all citizens. If those rights were not to be respected, what's the point of having a community? What's the point of having a government if such a government can't protect our rights to life, liberty, and the pursuit of happiness?

"Progressives" will often point to the "general welfare" clause of the Constitution and argue that, in order for the government to provide more in the way of social services, health care, etc, people must surrender even more rights and privileges, especially when they enter the public square or the marketplace. But the Founders would've considered this argument to be anathema. It is not the government's responsibility to make sure I'm healthy and wealthy -- and get tucked in at night! It's my responsibility to pursue those things. It's the government's role to protect my right and ability to pursue those things. The government isn't a provider; it's a protector!

I grant that there are some individuals unable to provide for themselves, no matter how much they are protected. And I fully support the community stepping in and helping those people. I'm no libertarian, and neither were the Founders. The Founders understood that some people need help, and the community should help. But somewhere in the last 200 plus years, we've lost our sense of balance and perspective. As conservative Dinesh D'Souza points out in this hilarious YouTube clip, when more people are in the wagon than are pulling the wagon, you have a serious problem! What's more, there's a big difference in arguing that the government should pay for food and shelter for those who need it. It's something else entirely to say the government should pay for birth control or (worse!) an abortion! Or...even worse...requiring a private company to pay for an abortion!

Bringing this back to the issue at hand...I agree that people need to give up a measure of their liberty and resources in order to live in a community. But when the government starts mandating that people and organizations must engage in activities or spend money (in addition to basic taxation) that violate their own convictions (particularly when we're talking about religious convictions), a line has been crossed! And that line is being crossed today. It's definitely being crossed with the Affordable Care Act and its mandates concerning contraception. This isn't a situation where tax dollars are being used to finance medical procedures or drugs which terminate a pregnancy (rather than merely prevent one). That's bad enough. Now, we have the government telling a private company that it must finance such procedures or drugs. This is tyranny...pure and simple! And the Founders would be appalled!

If the United States doesn't pause and reflect on where we're headed, we will cease to be anything close to resembling the great nation our Founders created and conceived of. When that happens, we will cease to be a great nation.


Tom Van Dyke said...

The lawblog Volokh Conspiracy is one of the few non-left clusters of legal theory, and claims some level of success in the original Obamacare litigation.*

The Hobby Lobby litigation is a different angle. Eugene Volokh writes:

They thus claim that the federal Religious Freedom Restoration Act of 1993 entitles them to an exemption from the contraceptive insurance requirement imposed by the Affordable Care Act and its implementing regulations.

(Hobby Lobby also argues that the Free Exercise Clause also entitles them to such an exemption, but I won’t focus on this argument.) Under that law,

Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person . . . is the least restrictive means of furthering [a] compelling governmental interest.

What's appalling is that the law was even deemed necessary. But as we see, there is an anti-religious contingent on the left holds religious belief in contempt. The government--the nation, the state--has no compelling interest in free contraception. It was a bribe to young single female voters and another bullet in the sexual revolution war on traditional morality.

Even if the Court holds it to be constitutional, this imposition on the Hobby Lobby's religious beliefs is unnecessary and frankly brutish.

*A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case [Paperback]
Randy E. Barnett (Author), Jonathan H. Adler (Author), David E. Bernstein (Author), Orin S. Kerr (Author), David Kopel (Author), Ilya Somin (Author), Trevor Burrus (Editor)

David Ivester said...

This post and the Hobby Lobby suit are predicated on the false premise—big lie really—that the ACA forces employers to act contrary to their consciences. Some employers may not like the insurance coverage that the law assures will be available to their employees, but it does not require employers to violate their religious beliefs.

Employers may comply with the law by choosing either of two options: (1) provide qualifying health insurance plans or (2) do not provide such plans and instead pay assessments to the government. Unless one supposes that the employers’ religions forbid payments of money to the government, the law does not compel them to act contrary to their beliefs.

Yes, yes, I understand that some employers complain that by paying assessments to the government they would indirectly be paying for the very things they oppose. That, though, is not a moral dilemma justifying an exemption to avoid being forced to act contrary to one’s beliefs, but rather is a gripe common to many taxpayers–who don’t much like paying taxes and who object to this or that action the government may take with the benefit of “their” tax dollars. Should each of us be exempted from paying our taxes so we aren’t thereby “forced” to pay for making war, providing health care, teaching evolution, or whatever else each of us may consider wrong or even immoral?

Oh, and the lefty-righty rhetoric, so common in today’s commentaries, lends no weight whatsoever to the employers’ false claim. What is with this penchant for referring to “liberals” or “progressives,” declaring what “they” “like” or “don’t like” and how they will “likely respond” and then, having put words in the mouths of these generalized adversaries, disputing them.

Tom Van Dyke said...

True. Forcing the Hobby Lobby into this moral corner isn't the least bit "liberal." It is however "modern" and leftist."

And the false premise here is that you're arrogating the decision as to what is and and isn't a moral dilemma to yourself. Your conclusion is predictable, reducing the equation to the naked force of law and government.

Doug Indeap said...
This comment has been removed by the author.
David Ivester said...


I'm not arrogating anything to myself.

Given that the government acted within its constitutional authority in passing this law, it is the government's decision whether the law creates a moral dilemma for some citizens by forcing them to act contrary to their consciences and whether to relieve them of that moral dilemma by granting them an exemption from the law. The government has made those decisions--rightfully in my opinion--and I am simply defending those decisions against false arguments by those who object to the decisions.

Tom Van Dyke said...

All you can talk about is law and government--which of course in the end is enforced at the point of a gun.

You do not speak the language of religious liberty--it's beyond your ken. This brutishness is unnecessary and contrary to the Founding principles.

The Religious Freedom Restoration Act of 1993 shouldn't even have been necessary, but the left has nothing but contempt for the religious beliefs of others.

David Ivester said...

I thought that we had already agreed that the ACA does not impinge on the religious liberty of employers in any sense prohibited by the Constitution and had moved on to the next question whether the government, as a matter of grace, should exempt some employers from the law in order to relieve them of a moral dilemma. As it turns out, the law is sound on both counts.

Yet you continue to invoke employers' "religious liberty" in some undefined sense. It is the very absence of any infringement of employers' religious liberty that leads me to suspect that the motive of complaining employers in seeking an exemption is something other than protecting their religious liberty (they already have that) but rather to hold some sway over their employees' choices--and thus subject the employees' religious liberty to the employers' wishes.

Tom Van Dyke said...

No. They can buy their own contraceptives and abortifacients. You continue to elide the question of coercion--the force of the state brought to bear to force Hobby Lobby to comply.

The employees' "liberty" is not in the least at stake*. The chilling thing is that you might actually believe the things you're saying. If you do, you don't understand what liberty even is, and this is the failure of our modern civic education.


*Griswold v. Connecticut [1965]

David Ivester said...

No. I have elided no such thing. Of course the law entails coercion. That is an element of law. And yes, Hobby Lobby is coerced to comply with that law and a host of others. Just because Hobby Lobby must comply with the law does not mean that its religious liberty is infringed. The law, as we’ve noted before, affords Hobby Lobby a choice that does not force it to act contrary to its conscience. That Hobby Lobby does not like the law or the insurance coverage that it affords its employees does not in the least infringe Hobby Lobby’s religious liberty. That is but a policy disagreement like the many others that citizens commonly experience.

The employees’ liberty is indeed at stake if their employers are free to circumvent the law and provide substandard health insurance conforming to the employers’, not the employees’, religious beliefs. The law affords employees opportunities to obtain qualifying health insurance either from their employers, if the employers so choose, or directly from insurers, if their employers decline to provide insurance. What the law precludes is allowing employers to provide non-qualifying insurance to their employees. Again, why as a society should we allow employers to offer substandard policies and thus undercut the purposes of the law? It makes more sense if an employer has misgivings about providing qualifying insurance to simply let the employer opt out and let the employees obtaining qualifying insurance on their own. There is simply no need or reason to allow employers to provide substandard insurance.

Tom Van Dyke said...

The employees’ liberty is indeed at stake if their employers are free to circumvent the law and provide substandard health insurance conforming to the employers’, not the employees’, religious beliefs.

That's not what liberty means. This is frightening.

David Ivester said...

Allow me to explain then. I refer here to “liberty” in the common sense of “the freedom to think or behave in the way that you want and not be controlled by a government or by other people” (Macmillan Dictionary), which encompasses the role of others, e.g. employers, exercising some measure of control over one’s actions. You, I gather, have in mind some more particular, limited meaning of the term. That’s fine. Frightening? It’s the sort of communication issue commonly sorted out with a little conversation.

Yes, yes. I understand that the amount of control matters, and there is a difference between the government compelling compliance with a law and an employer confronting an employee with an economic choice, i.e., accept health insurance conforming to my (i.e., the employer’s) religious beliefs as part of your paid employee benefits or get your own insurance at your own expense. (Note that an employers’ choice, while governed by law, is economic as well, in that he has a choice to provide qualifying insurance for his employees [in some measure at his expense] or provide no such insurance and pay an assessment instead.) Apart from whether we agree whether holding sway over employees in this fashion is a “liberty” issue, the question remains: Why as a society should we allow employers to have any say over their employees’ health insurance choices on religious grounds?

Tom Van Dyke said...

Allow me to explain then. I refer here to “liberty” in the common sense of “the freedom to think or behave in the way that you want and not be controlled by a government or by other people”

Giving free contraceptives to one group by coercing another against its religious principles is not liberty, it's a perversion of the very idea.

This is what's wrong with our civic education--we cannot speak meaningfully of liberty, only the modern perversion of it. [All tyranny is sold as "freedom."]

David Ivester said...

Again you invoke the specter of coercing employers against their religious principles, yet fail to show that the ACA actually forces any employer to act contrary to its religious principles. That's the big lie. Where's the beef?

Tom Van Dyke said...

Again, David, you resort to the language of law, of government, of coercion. You're simply not hearing me.

I'm not debating, David. I reject your hijacking of the word "liberty."

The family business of Hobby Lobby--500 stores, 1000s of employees--paid their people an agreeable wage, and voluntarily gave them health insurance too, according to their religious principles.

The employees--to use your own dishonest word "choice"--chose to say OK.

That is liberty.

Obamacare's--the Obama Administration's, the Democratic Party's---brutality against Hobby Lobby might even win in the Supreme Court. Even if it does, this assault on a family business's religious beliefs was unnecessary and it's ugly.

You will not be able to find a single defense of this anti-religious brutality in the Founding literature.

That's what this blog is about, you know, David. That's why Brian Tubbs just got disgusted enough to write this post we're commenting on. This blog was never about current politics--it was about the Founding principles of religion in America.

But your party, and our president, have crossed the line bigtime. You have forced the sexual revolution down the throat of a good family business that paid its people well, voluntarily gave them good health insurance.

Then you call this "liberty."

Brian Tubbs said...

Two thumbs up to Tom's last post. Sums up the situation perfectly.

Tom Van Dyke said...

Brian, as I said, this blog--at least our front page, not so much the comments sections--has been non-political. But a line has been crossed. I still won't put the culture wars on our front page, but there is a war on. Today---

DECEMBER 10, 2013 2:00 PM
ACLU vs. Civil Liberties
By The Editors

There can be no truce in the culture war — the Left has made that abundantly clear. It is not sufficient that there be a nearly unrestricted abortion license, or that those who object to it nonetheless be compelled to support it financially, through the Obamacare mandate and other federal adventures.

The American Civil Liberties Union now is seeking to force Catholic organizations not only to subsidize abortions but to perform them as well.

This is a gross violation of the First Amendment and a despicable political gambit. That the ACLU deserves to lose this lawsuit goes without saying; more relevant is that the organization and its officers should be deeply ashamed of themselves even for attempting it.

The ACLU once was an organization that occasionally (and opportunistically) interceded against the Orwellian boot stamping on a human face forever. The organization has even come to the assistance of this magazine in the matter of Michael Mann’s risible lawsuit against us. But in this matter, the ACLU is choosing to be the boot.

The ACLU is suing the U.S. Catholic bishops over the case of Tamesha Means, a woman who sought treatment for a pregnancy-related problem at a Catholic hospital, Mercy Health Partners. The ACLU contends that Miss Means should have been prescribed an abortion, but Catholic hospitals do not offer that gruesome service. The ACLU hopes to see the power of the state deployed to force them to do so.


Civil "liberty"? This is not liberty, it is tyranny.

David Ivester said...


Liberty, as you pose it, appears to be when employers do as they please with their employees and their employees say OK. Why should we let government interfere with this idyllic circumstance? We don’t need no stinking government.

That, I suppose, is an answer of sorts to my twice-posed question why we as a society should allow employers to have any say over their employees’ health insurance choices on religious grounds.

Even though we as a society, through enactment of laws, have made the policy decision that making qualifying health insurance widely available to everyone is a good thing and moreover we have afforded objecting employers options that do not force them to act contrary to their consciences while still assuring that their employees get qualifying insurance, you advocate that employers should be accorded a power over their employees to displace the law’s policy and substitute in its place the employer’s religious beliefs—in effect creating little fiefdoms where the employers’ religions, rather than the law’s policy, hold sway over the employees’ health insurance choices. Allowing employers to thus lord over their employees is . . . liberty?

Having made the policy decision to make qualifying health insurance widely available and having given objecting employers a way to avoid acting contrary to their consciences, we as a society need not, in the name of the employers’ “liberty,” also let employers undercut the law’s policy by allowing them to provide their employees with non-qualifying health insurance.

Tom Van Dyke said...

Liberty, as you pose it

Um, no. "Liberty" as you pose it is a horror.

That, I suppose, is an answer of sorts to my twice-posed question why we as a society should allow employers to have any say over their employees’ health insurance choices on religious grounds.

Who do you think you're fooling with this? "We as a society should allow" is already tyranny regardless of the blahblahblah that follows. Allow?

You don't even know what a "society" is. You exterminate "society" with government, which alone holds the force of the gun. Hobby Lobby has no guns.

I don't think you're even rare or deranged, David. I think you prove that our education system fails in teaching the Founding principles.

JMS said...

Brian – if you are going to predicate an opinion blog with an epigram from Jefferson’s “Bill for Establishing Religious Freedom,” you should acknowledge that the criteria Jefferson appealed to was “reason alone.”

Failure to base opinion on fact or truth “beget habits of hypocrisy and meanness,” as expressed by David Green, the owner of Hobby Lobby. The entire Hobby Lobby case against the ACA is that emergency contraception is the same as abortion, and so it objects to the law on religious grounds even though science and medicine does not support the abortion claim.

Contrary to the falsehoods propagated by various FOX News pundits, the morning-after pill is not an is not an abortifacient: it prevents pregnancy but cannot stop pregnancy after fertilization takes place (i.e., emergency contraception is not intended to block the implantation of a fertilized egg: it blocks ovulation). So, the ACA law passed by Congress does not prohibit Mr. Green’s “free exercise of religion.”

Beyond the appeal to reason, bloggers at AC pride themselves on appeals to history. I challenge anyone to provide founding era primary source evidence that any founding father ever believed that a corporation was entitled to the same First Amendment rights as an individual person.

Even if corporations could have religious beliefs, the contraception requirements do not burden religious liberty. An employer’s personal religious beliefs do not allow a company an exemption from business regulations generally. As noted in U.S. v. Lee (1982) when an Amish employer, sued the federal gov’t. following an assessment for unpaid Social Security taxes, claiming that the imposition of such taxes violated his freedom of conscience, a 9-0 SCOTUS decision (including Rehnquist) that applied to its competitors, noting that “limits [employers] accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.” The Court noted that allowing individual employers religious exemptions from government laws would operate to “impose the employer’s religious faith on the employees.”

The same reasoning applies to Hobby Lobby’s wanting an exemption to the ACA’s contraception requirements. For-profit corporations do not have a compelling religious freedom argument.

So failing an appeal to either reason or history, please try to avoid the hyperbole of FOX News, the Ron Paulines or the Heritage Foundation when you start crying “tyranny.” Instead appeal to history for what tyranny really means: “In the exact sense, a tyrant is an individual who arrogates to himself the royal authority without having a right to it. This is how the Greeks understood the word 'tyrant': they applied it indifferently to good and bad princes whose authority was not legitimate. [Rousseau, "The Social Contract"].”

Tom Van Dyke said...

Contrary to the falsehoods propagated by various FOX News pundits, the morning-after pill is not an is not an abortifacient: it prevents pregnancy but cannot stop pregnancy after fertilization takes place (i.e., emergency contraception is not intended to block the implantation of a fertilized egg: it blocks ovulation).

Which Fox News pundits? Typical mindless slime.

Further, the argument is sophistic--regardless of what you call it, the Hobby Lobby people believe what the "morning after" pill does is morally evil, and to force them against their will to cooperate with moral evil is tyrannical.

Some on the left don't get it, never will. They have nothing but contempt for the religious beliefs of others. "Reason alone," they say, but they are moral imbeciles.

Tom Van Dyke said...

BTW, I'm making a slight return to political blogging at the site below. Thx for the good discussion--yes, you, David--a worthy foil.

While I respect leftists as my fellow Americans, I do not feel the same way about modern leftism, which I consider hostile to our Founding principles. I hope you'll view my remarks above as passionate but not personal. My anger is not at the products of our educational system, but the leftpersons who dominate it.

Brian Tubbs said...

JMS, briefly in response...

1) Corporations are made up of people. People shouldn't have to surrender their free exercise of religion rights or their rights of conscience when they enter the public square, but...

Even if you disagree with that (as you apparently do)...

2) This isn't simply about what rights corporations (or people within corporations should have). It's an issue of HOW MUCH POWER THE NATIONAL GOVERNMENT SHOULD HAVE. There's NO WAY the Founders would've been comfortable with the amount of laws and regulations the national government places on corporations (not to mention, individual citizens) today.

Yes, Jefferson believed in reason. No doubt about that. And perhaps Jefferson would disagree with Hobby Lobby's claims that ACA forces them to cover abortion-inducing drugs (or face a fine). Maybe Jefferson would disagree with Hobby Lobby on that, but I guarantee Jefferson would still be fighting alongside them. Not so much because of Hobby Lobby's religious views, but because Jefferson (perhaps more than any other A-list Founder) believed in LIMITED government.

I think what Tom and I are saying is that, based on the principles of the Founding Fathers, this whole debate SHOULDN'T EVEN BE HAPPENING! The national government shouldn't have anywhere near this kind of authority and power. That fact that they do should give everyone serious pause.

JMS said...

Tom –

1) I posted a lengthy comment, so listing FOX pundits or right-wing bloggers by name would have been redundant since we can all “google” them easily. You state that you welcome “good discussion,” but then don’t address even one point I raised refuting Brian’s thesis, before reverting to name-calling instead (“mindless slime”).

2) Characterizing my argument as “sophistic “ is just a more pretentious form of name-calling. The Free Exercise clause does not require exemptions for every claim of religious belief (e.g., beliefs against vaccines, blood transfusions, psychiatry, or any medical intervention other than “faith-healing”). Then it’s back to hyperbole. Contraception is not illegal or “tyrannical,” and religious Liberty does not extend to the case where an employer or insurance company CEO gets to decide what medical procedures are “morally evil.”

3) Back to more inventive: don’t label me as a leftist or accuse me of having contempt for the religious beliefs of others. But as I’ve commented before, perhaps you’d like to hear it from a conservative icon like Justice Scalia, and accuse him of the same things. In Smith v Oregon (1990) Scalia wrote, “to permit this [i.e., permitting the use of peyote in a Native American church ceremony in violation of federal drug laws] 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."

4) The “reason alone” quote was from Jefferson’s Bill for Establishing Religious Freedom that Brian invoked in his blogpost that I commented on, so I guess you consider Jefferson as a “moral imbecile.”

Get a grip.

JMS said...

Brian - here’s another objection to Hobby Lobby’s lawsuit. Hobby Lobby objects to the contraceptive mandate on the grounds that it violates their religious beliefs. But legally, what is Hobby Lobby?

According to founder John Marshall (who sided with Patrick Henry and George Washington during the General Assessment controversy that Madison and Jefferson opposed), a corporation is a legal construct that is the product of positive law. In Dartmouth College v. Woodward (1819) Marshall observed that “[a] corporation is an artificial body, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only the properties which the charter of its creation confers upon it, either expressly, or as incidental to its very existence.”

From where did Marshall derive such a ruling? English common law fully recognized the separate personality of the corporate entity. It inherited this principle from the Roman law. A business organization does not have religious beliefs, or as it has been famously put by Blackstone, “a corporation has no soul.”

WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 477 (3d ed. 2003) (“Neither can a corporation be excommunicated; for it has no soul....”)

Tipling v. Pexall (1613) (“The opinion of Manwood, Chief Baron, was this, as touching corporations: that they are invisible, immortal, and that they have no soul. A corporation is a body aggregate: none can create souls but God; but the King creates them, and therefore they have no souls.”);

Sutton’s Hospital (1613) (“A corporation aggregate of many is invisible, immortal, and rests only in intendment and consideration of law. They can’t commit treason, nor be outlawed, nor excommunicated, for they have no souls … .”

So, by founding era principles of business law, it is clear there is no natural or juridical person whose Free Exercise rights are burdened by the ACA mandate.

Tom Van Dyke said...

JMS, you seem to have been parroting Media Matters about some Fox guest host nobody ever heard of and a couple of guests. Mindless slime it was, and why you didn't come up with a specific case.

As for your wanting to leverage a Scalia decision rather than make an actual argument, I told you I won't play that familiar game.

Bottom line--there's no reason to be strongarming the Hobby Lobby people even if it is constitutional.

It's unnecessary and brutish. Pass a law for the government to give out the free contraceptives--if you can. Leave those good people and their family business out of it.

[As for Jefferson, yes, he was a moral imbecile.]

Tom Van Dyke said...

UPDATE 12/17/13

"Nor is the Mandate the least restrictive means by which the Government can improve public health and equalize women’s access to healthcare. ... The Government could provide the contraceptive services or insurance coverage directly to plaintiffs’ employees, or work with third parties – be it insurers, health care providers, drug manufacturers, or non-profits – to do so without requiring plaintiffs’ active participation."

My main argument, that maximizes religious liberty and minimizes government coercion.


a) An infringement on religious liberty

b) No compelling interest

c) With millions of other people exempt via Obama admin's waivers, ineffective,

d) Extralegal executive branch overreach


Tom Van Dyke said...

Yesterday, Judge Brian Cogan of the United States District Court for the Eastern District of New York, not only struck down Obamacare's contraception mandate as applied to religious non-profit organizations, but also sent a strong signal that federal courts were losing patience with President Obama's many stitches of executive power.

Previous courts had ruled against President Obama's contraception mandate as applied to for-profit entities (see Sebelius v Hobby Lobby), but this was the first court to hold that participating in Obama's scheme to provide free birth control is a substantial burden on the free practice of religion (specifically the Catholic Archdiocese of New York and its affiliate organizations).

The contraception mandate "directly compels plaintiffs, through the threat of onerous penalties, to undertake actions that their religion forbids," Cogan wrote. "There is no way that a court can, or should, determine that a coerced violation of conscience is of insufficient quantum to merit constitutional protection."

Cogan forcefully rejected three key Obama defenses of the mandate. First, on the government's claim that there was a compelling interest in uniform enforcement of the contraception mandate, Cogan wrote:

Tens of millions of people are exempt from the Mandate, under exemptions for grandfathered health plans, small businesses, and “religious employers” like the Diocesan plaintiffs here. Millions of women thus will not receive contraceptive coverage without cost-sharing through the Mandate. Having granted so many exemptions already, the Government cannot show a compelling interest in denying one to these plaintiffs.

Second, the court also rejected Obama's last minute claim that Obamacare's contraception mandate, as implemented for religious organizations, did not, in fact, mandate contraception:

Here, the Government implicitly acknowledges that applying the Mandate to plaintiffs may in fact do nothing at all to expand contraceptive coverage, because plaintiffs’ TPAs aren’t actually required to do anything after receiving the self-certification. In other words, the Mandate forces plaintiffs to fill out a form which, though it violates their religious beliefs, may ultimately serve no purpose whatsoever. A law that is totally ineffective cannot serve a compelling interest.

Finally, the court also rejected the government's argument that Obama's failure to convince Congress to "fix" Obamacare authorized him to enforce his contraception mandate in the manner he did:

Nor is the Mandate the least restrictive means by which the Government can improve public health and equalize women’s access to healthcare. ... The Government could provide the contraceptive services or insurance coverage directly to plaintiffs’ employees, or work with third parties – be it insurers, health care providers, drug manufacturers, or non-profits – to do so without requiring plaintiffs’ active participation.

The Government first argues that the alternatives above are infeasible because the defendants lack statutory authority to enact some of them. This argument makes no sense; in any challenge to the constitutionality of a federal law, the question is whether the federal government could adopt a less restrictive means, not any particular branch within it. It would set a dangerous precedent to hold that if the Executive Branch cannot act unilaterally, then there is no alternative solution. If defendants lack the required statutory authority, Congress may pass appropriate legislation.