The Uncertainty of “Least Restrictive Alternative”

(Cases concerning this are still pending, as I understand it.)

Notre Dame v Sebelius, where Posner wrote the opinion for the 7th Circuit.

The Court is saying that the least restrictive option is decoupling health insurance covering lowly and profane human-persons from the gift of lofty and pious corporate-persons, and good luck getting that past Congress, suckers.

Sandra Newman ‏@sannewman:

Maybe we should do a Santorum move, and make “Hobby Lobby” a term for the anus, as used in sex that doesn’t make you pregnant.
“Does she take it in the Hobby Lobby?”
“Yeah, she has to – can’t afford birth control.”
“Praise the Lord!”

@ widget, I find the thinking of 5 of 9 rather transparent.

Looking not at just this one case, but their decisions in general, it is: “What do rich white Republicans want? Then that’s the law!”
~

Maybe we should do a Santorum move

Nah. Given that a previous colloquial term for cheating someone is a slur against Gypsies, there’s an opening to replace it with “hobbylobbied”.

It is just possible this will backfire. For one thing, HL’s health insurance costs will be higher, because maternity care costs more than contraception. For another, young women may decide, because of the costs of contraception, to work elsewhere, and a lot of HL’s business depends on women selling to women. HL will also be subject to a boycott. I am not sure how extensive or effective it will be.

Finally, as Justice Ginsburg predicted, the Supreme Court is already being deluged with religious organizations asking for a carve-out for their pet taboos. Guys, you made your bed.

The Roberts Court, working on being the worst since Taney.

We are slowly but surely becoming a theocracy. And the people who want to take us there are being very clever about it. for the most part. Drip drip drip, rather than a true opening of the floodgates. Though, Alito’s (next-day) clarification after the initial opinion basically does open them. All contraception. Not just the four in question. And they sent out letters about this to the lesser courts.

And why stop at contraception? What makes it a special case over any other thing that might upset believers? After all, their god lists hundreds of “abominations” in their sacred text, with death penalties attached. Like, eating shellfish, wearing mixed fabrics, planting more than one crop at a time, working on Saturdays, talking back to your parents, and the real kicker: If you’re raped in the city and fail to scream out loudly enough — death penalty!!

Once they set a special privilege aside for believers in 950-year-old men, anything’s possible.

Just in case no-one has pointed out that depending on employers for insurance is stupid, consider it pointed out.

Another thought. Or two.

Health care benefits are a part of one’s paycheck. The Greens wish to dictate how their employees spend them, and this will happen all over the country now.

But the Greens are paying for contraception. The private insurance company is. Kaiser and Blue Cross, etc. etc write the checks, not the Greens.

But by forcing their employees to pay for contraception on their own, they will be using the Green’s paycheck to do so, which probably has their name on it. The Greens are actually closer to the transaction than if an insurance company pays.

The whole thing is ludicrous . . . and, yes, godoggo, it’s yet one more reason why we should have Single Payer. Obama and the Dems showed cowardice, IMO, to block even the discussion of that alternative. To me, that was unforgivable.

Yep, and the Obama Administration opened the door, when they caved to the non-profits on this issue, providing a work-around that they thought was oh so clever.

The only man who didn’t go along is a Jew. The only Catholic who didn’t go along is a woman. This is perhaps not beside the point.

Yep, and the Obama Administration opened the door, when they caved to the non-profits on this issue, providing a work-around that they thought was oh so clever.

This is just touchingly naive. Do you think the 5 justices in the majority wouldn’t have found some other way to achieve their desired result? 4 of them came up with exciting new commerce clause jurisprudence in an attempt to strike down the individual mandate.

One imagines a future Supreme Court case in which the owners of a restaurant chain argue that their religious principles require them to refuse service to the sons of Ham.

#s 19, 20 – But there is a reason that Republican appointees have all been Catholics, three of them (Roberts, Scalia, and Thomas) with seminary or Catholic private high school training.

It’s a given that a Republican appointment to the bench must be anti-abortion. Reagan didn’t quite make it a litmus test (he appointed Souter) but since then it’s been a requirement.

There are only two places to go for well-educated people who are reliably anti-abortion: Catholics and fundamentalists. Secular people, mainline Protestants, and Jews tend either to be pro-choice or a little bit squishy on the subject.

But you can’t find many fundamentalists who are qualified to be on the Supreme Court, because fundamentalist Christianity is anti-intellectual. It’s faith-based, which means its methods of reasoning don’t fit the legalistic mode of argumentation that’s required for a Supreme Court justice.

Educated Catholics, on the other hand, are steeped in legalistic argumentation. Their traditional modes of reasoning fit right in to the common-law legal tradition.

So if you’re looking for someone who is a skilled jurist AND is anti-abortion, nine times out of ten you’ll come up with a Catholic.

I do not understand how a corporation is a person; clearly I am way behind the times.

I do not understand how providing IUDs and morning after pills “substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability…” Not one person at Hobby Lobby has to use these forms of birth control.

Hobby Lobby covers Viagra, but not the morning after pill.

This decision sets the precedent for personhood. It accepts that an IUD is an instrument of murder, and thus coverage must be denied. This, in a nation that has an insane obsession with protecting the rights of gun owners to own what they want and do what they want with guns.

I think we will see this court overturn Roe V Wade soon – this case is a precedent for that.

But then again, SCOTUS gave us GW Bush in 2000…

(As a side note… THANK YOU TARGET FOR NOTING THAT SEMI-AUTOMATIC GUNS WITH HIGH CAPACITY MAGAZINES TAINT THE “FAMILY-FRIENDLY” EXPERIENCE.)

If there is intelligent life in the universe — it’s not here — and they know what’s going on, I imagine their complete bafflement at our granting special privileges to believers in the impossible and the unseen. I imagine them also thinking, “Why not grant the same to people who think Elvis is still alive, or people with moles on their toes. It’s just as arbitrary.”

This is supposed to be a secular society, and adjudicating “rights” should be based on evidence and reality, not “feelings” and “beliefs.” Basing special privileges on those creates an obvious slippery slope without end, because we all have “feelings” and “beliefs.” Why privilege only certain kinds above all others?

“Judge, it is my sincerely held belief that I had to break the law in order to comport with my sincerely held belief that Elvis lives.”

“Okay. Case dismissed!”

PS: Justice Kennedy, in his short concurring opinion (cited by Lederman), makes a point of citing Justice Kagan’s dissent in Town of Greece v. Galloway. The citation itself is anodyne boilerplate. I think it’s a clear shout-out to Alito and Roberts that Kennedy will not go any further in Notre Dame in October. This is the pending case where a Catholic employer demands that its women employees not only be denied contraceptive coverage through the employment group policy, but also through direct reimbursement from the insurance company, the Jesuitical fix Alito allowed for Hobby Lobby.

Don’t buy from Hobby Lobby. Put them out of business. It is the American Way.

Given that the “corporations are people” line of cases is now well established it was predictable that the court would find HL to have a right to religious practice. The existing exemption in the ACA for religious non-profits provided a ready-made argument in favor of HL despite, as Ginsberg pointed out, the significant difference between the two isn’t the legal structure, profit vs. non-profit, but the goal, religious work vs. secular money making. (I see a Monty Python sketch of Jesus confronting the money lenders, the latter successfully defending money lending as a path to salvation).

Where an honest court could easily have disposed of the case was the issue of attenuation. The Greens supply an insurance policy. Period. They don’t have a role in how it is used, specifically, what method of birth control is chosen. They bear no moral responsibility if an employee uses his or her wages on hookers and blow. Or will that be that next claim?

The court’s alternative of the tax payers picking up the contraception cost is just stunning. True judicial activism pulled out of nowhere. It should silence all attempts to argue that the majority authors have any intellectual honesty.

Plume #33: “…this case will likely radically increase their sales.”

More of the fearful “rhetoric of reaction”. If that happens, it happens: then that is the way it is going to go. But this is unlikely, because conservative areas are falling faster into poverty than liberal areas. Hobby Lobby needs to expand, and they have just made a big mistake. They may be about to run into a brick wall. Some businesses having supply contracts with Hobby Lobby are going to reconsider. Street customers should be encouraged to take their business elsewhere, too. Nobody “likes” abortion, but the majority feel it is the individual’s decision, and not for government or employer to decide. But business owners have a 1st Amendment right to say which hypocritical path to mammon they will pursue. So instead of the rhetoric of reaction and all the fearful fidgeting about what the Supreme Court is going to do next, why not go “pro-active” call for a consumer boycott? Is it too much work?

A minor correction of fact that changes no argument:

Bloix wrote:

Reagan didn’t quite make it a litmus test (he appointed Souter) …

GHWBush, aka 41, appointed Souter.

Lee #36,

There is no First Amendment right to discriminate against female employees. The Court didn’t even use the First Amendment to make its case. They used RFRA. Which is bizarre, given that it was put into place to protect the religious practices of Native Americans, especially their use of peyote.

It takes pretzel logic on steroids to get to the place where an employer can claim “religious freedom” in order to deny coverage to female employees for things that employer doesn’t like.

If he doesn’t like them, he doesn’t have to use them. He shouldn’t have the right to block usage for others, make their lives more difficult and costly. None of that has anything to do with First Amendment protections.

roy @3:

Well, that would certainly produce a lot of Santorums.

Bristol & Sarah Palin declared today to be #HobbyLobbyLove day. Check out that hashtag on twitter… it’s hilarious, in that dark form of humor we seem to have in spades today.

I have a comment stuck in moderation, so I will repeat here that the Hobby Lobby decision sets the precedent to overturn Roe v Wade. IUD as murder instrument…

Main Street Muse sez:

the Hobby Lobby decision sets the precedent to overturn Roe v Wade. IUD as murder instrument…

This doesn’t target Roe so much as it targets Griswold v. Connecticut, something that also excites the neo-taliban. Rick Santorum explicitly brought this up during his campaign. This was made abundantly clear by the SCOTUS revision of the decision to include all contraceptives in the ruling.

This is as much about ‘personal religious liberty’ as the Civil War was about ‘states rights’.

Yes, the Civil War was about “State’s Rights”, it’s just that it was about about the ‘state’s right’ to allow humans to be owned, bought and sold as livestock.

The HL case is about a corporation’s “personal religious liberty” to impose their religion on other people. Justice Ginsburg is correct, there is no way in hell this will end up being limited to contraception.

All the GOP-appointed judges are Catholics. I believe Thomas was not when he was appointed, but later converted. The same was true of Bork (when he was nominated). Douglas Ginsburg was the last Jewish judge a GOP president tried to put on SCOTUS (the only one I can think of who actually made it on is Cardozo). GWB tried to nominate Harriet Miers, who I believe is a Methodist, as well as Alberto Gonzalez, but settled for Roberts & Alito. I’m thinking that we may get a Mormon on the court before the next Protestant.

A lawyer representing a corporation is obliged to represent the corporation and NOT the corporation’s principles should they be attempting to use the corporation improperly.

How is a lawyer to determine whether a given corporation is Christian? Perhaps its principals are lying and trying to force their Christian beliefs upon a Muslim corporation? The corporation can only speak through its employees and owners, but as I understand this case, its religious values are separate from theirs.

I recognize that the Court might just accept whatever the corporation’s lawyers say about the corporation’s religious beliefs, out of a concern for not putting a person (corporation) through a religious inquisition to determine their true religious beliefs. There’s a long history of avoiding that sort of farce in a court room- if you say you’re jewish, the court will consider you jewish, generally speaking. So if the corporate lawyer says his client is an Evangelical corporation, that can be accepted as true. But the lawyer has an ethical obligation to ensure that this statement is actually true. How is he to discharge this obligation?

Off-topic, but I don’t think describing Justice Thomas as “a black person from coastal Geogia” is quite right; it’s sort of like describing Chief Custalow as “a black person from Tidewater Virginia.” It’s accurate as to looks, and as to the reaction of the ignorant, but probably not accurate as to how they would describe themselves. (Gullah and Mattaponi, respectively.)

Well John Holbo, there you go. Today’s Wheaton decision should cement this court’s reputation as being dominated by an unscrupulous pack of clowns. If this doesn’t wake people up to start voting the Taliban out of Congress, to try to ensure better judges, nothing will.

I think it’s a categorical error to examine the judicial decisions of the Opus Dei/Federalist Society majority on the Court in terms of the soundness or fallacy of its argumentation. They’re in charge. They can’t be removed from office. Everyone will follow their decisions no matter how absurd. They will use chop logic to write gobbldygook in their decisions just to prove that, unlike you and me and the rest of us who aren’t members of the Ennearchy, the rules don’t apply to them.

Back when Huey Long ran Louisiana, a week or so before election day he would assemble the sheriff’s from the parts of the state his machine controlled to determine the vote counts. Most parishes they would just give a quota. They would figure out how many votes they needed from that parish, and the sheriff’s responsibility was to make sure that quota was met. But some places, such as Plaquemines Parish downriver from New Orleans, their people had such tight control that they would use the meeting to actually determine the precinct by precinct returns. It let free a somewhat unexpected streak of creativity in an otherwise pretty unimaginative bunch. Some precincts they would give the exact same vote total election after election. Some they would do number sequences that would migrate from election to election. Some favored coding their wives’ names into the results numerologically.

It would be as profitable a use of your time to try to find anagrams in the texts of these people’s decisions, as to scrutinize them for sense and reason. The point of what they have to say is the same as the point made by the vote counts in Plaquemine Parish. “We’re in charge. We can do whatever the flip we want, and there’s nothing you people can do about it.”

They’re in charge. They can’t be removed from office. Everyone will follow their decisions no matter how absurd. They will use chop logic to write gobbldygook in their decisions just to prove that, unlike you and me and the rest of us who aren’t members of the Ennearchy, the rules don’t apply to them.

Are you sure you’re not confusing Hobby Lobby and Goodridge? Because that description sounds like something that actually changes long-established settled law, not something that decides the exact mechanism of application for a new administrative rule.

Also, remember to wear a bullet-proof vest.

Modernity seems at times to be leading us, like lemmings, over the final cliff, so to some extent I understand the proliferation of talibans, each tailored to the fears of the sufferers nearest at hand. Still, it’s hard to see Scalia, for example, as anything but a swine. His lineage is certainly at least as old as ours, which in some sense makes him the present avatar of an ancient adversary, but it’s still a stretch to take him as seriously as he takes himself.

We may be equally deluded, but if you can’t tolerate chaos, trust your own progeny, and believe that we’re bound somewhere whether we appreciate the journey or not, I can’t see the point of being human. We are, above all, changeable beasts — even those toiling in the depths of the Ministry of Truth must sense that all those words that need erasing have come from somewhere.

WT,

We are never going to get a system that keeps swine out of office. What we have to settle for is a system that never lets any of the potential swine have the kind of unlimited power that we have let SCOTUS justices acquire.

Stop blaming impersonal historical forces for the predicament we are in. I guess if you believe that the way things are supposed to work, the only way they can work, is that the other side, the conservatives, at least have to be decent and honest, if wrong-headed, then, sure, the existence of a Scalia is a sign of the End Times.

Scalia is a product of our side’s failings. We should never have let him on the Court. He was obviously, at the time of his nomination, a vain and shallow little man with a comic book ideology. He clearly lacked a sense of fairness or balance, and he very publically, in terms dripping with contempt for our side as well as for settled law, espoused an ideology contrary to ours. Yet our Senators refused to block his nomination out of the ridiculously impractical idea that litmus tests, blocking a nominee “just” because of poisonous beliefs, was beneath us, that only the other side would stoop to such. Our side had this vision, that you seem to share, that the courts could and should be the honest brokers, above politics, and that in their position above and beyond the blandishment of the comfortable, we could and should rely on them to comfort the afflicted and afflict the comfortable in ways the political branches would never find nearly as easy. But that vision was always just plain wrong. We had the Warren Court because of politics, because our side, plus three RINO presidents, did all the appointing from 1932 to 1980.

The other side has never forgotten the political nature of a Warren Court whose fundamental decency we take for granted, as foolishly as libertarians take for granted all the decencies of civil society. They worked tirelessly for a generation to exploit our foolish idealism and idolatry of the courts, and they finally succeeded in getting a stable working majority late in Dubya’s reign. Not one of the five, with the possible exception of Kennedy, should have gotten a single D vote for confirmation. They didn’t hide what they were, their contempt for law settled by courts of the Warren era, and how they would vote if allowed on the bench. We refused to take responsibility for not letting rightwing ideologues onto the court, and that, and only that, is what we should blame for this Opus Dei, Federalist Society junta that runs a court that we refuse to limit. Scalia went from being a muttering dissenter, who at least therefore felt compelled to write dissents that made some sort of sense, to an untrammeled swine.

Our side still refuses to even talk about litmus tests for future nominees, that we will never again let in a Scalia, or Alito, or Roberts or Thomas. You’ld think, if we wanted to convert outrage against these latest decisions into votes in November to protect our Senate majority, litmus tests would be the minimum thing we would be talking about, but, God help us, our side seems to still be above that. Oh, and just forget about mentioning restricting SCOTUS jurisdiction, or impeaching Alito and Roberts for lying about their devotion to stare decisis at confirmation. That’s crazy talk. Only the other side stoops to that sort of talk, to talking about judges as if they were anything but secular saints against whom mere politicians dare not raise a hand. Any method at all of limiting SCOTUS power is still completely off limits for our side.

Sure, if the power of SCOTUS can’t be limited, by all means give in to eschatological despair. The Five Horsemen of the Federalist Society Apocalypse are indeed upon us. That, or do something about the practical situation we face. What’s happened here is a simple, easy to understand power play, that can and should be countered with political power. We promise litmus tests for future nominees and thereby harness outrage to keep the Senate, and then the WH. We wait out the five. They aren’t actually apocalyptic beasts, but mere mortals, and Kennedy will check out some time soon. Maybe, if running against these bums in the next election gives us the trifecta, we can think about yanking SCOTUS jurisdiction over campaign financing, if only to get the public (and ourselves, chiefly our own court-besotted selves) used to the idea that judges are political creatures just like Congresscritters and Preznits, and need to have their leashes yanked from time to time.

We do all that, and Scalia still acts like swine, then it’s on Scalia. But power corrupts, and absolute power corrupts absolutely. We gave Scalia absolute power, so of course he gave in entirely to swinishness. It’s on us until we take back that absolute power.

Glen Tomkins @ 65

You’ve misunderstood me, but I can see why you might have felt the need to. I don’t know how it turns out any more than you do. Maybe it just goes on getting bigger and more frantic forever and ever amen. What I do know is that forever is a long time, and that an awful lot of us at present seem to me to be barking up the wrong tree.

Maybe a coalition of the willing can fix a lot of what’s wrong, but I think it’s worth considering that like the past, any possible future, eschatological or not, will incorporate a lot of things that will alone can’t fix. Politics, then — especially mass politics — is a matter of some subtlety, and a damned tedious process, even when it more or less works. Two steps forward, one step back. Maybe at some point we do come to the edge of the cliff, and maybe we don’t. Que será, será, eh?