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Posted on 03/31/2014 5:41:06 PM PDT by Rashputin
Can the Supreme Court duck the central issue in the Hobby Lobby case?
By Phil Lawler - March 28, 2014 6:18 PM
In the the Hobby Lobby case, a key question facing the Supreme Court is whether a corporate enterprise qualifies for the same religious-freedom protections as an individual. At first glance that seems a very simple question. It is a long-established principle of Anglo-American law, set forth clearly in Blackstone’s Commentaries even before the American Revolution, that for legal purposes, a corporation is a person.
For purposes of affirmative-action programs, the US government recognizes certain corporations as “minority” contractors, because the companies are controlled by members of racial minority groups. It doesn’t matter that some employees may be WASP males; the corporation, as a legal person, qualifies for the minority preference. So it’s difficult to see why other corporations—in this case, Hobby Lobby and Conestoga—should not be recognized as Christian “persons,” qualifying for protection.
During the Supreme Court hearing on the Hobby Lobby case, an alert Wall Street Journal reporter noticed that Chief Justice John Roberts spied one way in which the Court might resolve the Hobby Lobby case without entirely gutting the contraceptive mandate in the Obamacare program. The Court could rule that “S corporations”—generally small corporations, which pass their taxable income directly along to shareholders, rather than paying corporate income taxes—qualified for religious-freedom protection, while larger corporations do not. But such a ruling would be a step away from the general principle that every corporation is a legal person. By taking that step, and setting a new precedent, I suspect that the Court would be creating havoc in other fields of corporate law.
In another revealing exchange during the oral arguments, Justice Elena Kagan tried out the argument that Hobby Lobby was not unduly burdened by the contraceptive mandate, because the company could simply stop providing any health-care insurance for employees, and pay the $2,000-per-worker penalty for failure to comply with the Obamacare rule.
That’s an interesting argument. Justice Kagan thereby suggests that the best way to justify the Obamacare law might be to frustrate its purpose; the law is set up to ensure that all workers have health insurance, and yet she proposes that the company could stop providing health insurance. Aside from its byzantine complexity, there are two problems with that logic.
First, the $2,000-per-employee penalty is most assuredly burdensome. For Hobby Lobby, that penalty would amount to $26 million. Kagan suggests that the company could simply pony up that money and move on, saving all the money that it might have spent on employees’ health insurance. It doesn’t work that way. Employees of Hobby Lobby, suddenly deprived of an important job benefit, would certainly demand much higher wages. To satisfy them—just to avoid slashing their real income—the corporation would be obliged to raise their wages by an amount equivalent to the cost of the health-care policies they would buy. So the real burden for the company would be, roughly speaking, the current cost of health-care insurance plus $26 million. By any reasonable standard, that’s a substantial burden.
Yet even that’s not the whole story. As Francis Beckwith points out in a perceptive commentary , the corporate executives of Hobby Lobby see it as a moral obligation to provide their employees with decent health-care coverage. So by suggesting that they should drop the coverage and pay the penalty, Justice Kagan is saying that they should avoid one moral wrong by committing another. As Beckwith states the dilemma:
Either they must acquiesce to the HHS mandate and materially cooperate with the termination of nascent human life, and thus violate their conscience and what they believe is a clear command of God (Psalm 127:3), or they must cease offering health benefits to their employees, and thus violate their conscience and what they believe is a clear command of God.
As things stand, the Hobby Lobby executives cannot escape the moral dilemma without some help from the Supreme Court. A ruling that ducks the central issue will leave the legitimate complaints of Christian employers unresolved.
If I owned Holly Lobby and the USSC ruled in favor of this mandate, I would presumably be wealthy enough to simply shut down. Give everyone notices, work hard to help entire Holly Lobby employee team restart somewhere else, and sell off/close.
Yes. they are more flexible than a LesbianThespianGymnasticMidget...
Off the top of my head, I can’t recall the portion of the First Amendment that stipulates that freedom of religion is denied to business owners.
The question of the owners themselves is a separate matter which is what those who agree with Obama keep trying to pretend makes the whole issue go away. It doesn't. Defining a special class of persons based on the desires of the government to limit rights in one instance will always lead to defining more classes the government wants to deprive of specific rights due to the "common good" being more important than the individual.
The court could stipulate that the corporation is a different sort of person as a way to hide the fact that they are taking away an individuals rights by creating such a definition, but if they do they destroy the definition of a person to some degree.
They've already sidestepped the issue of differing classes of persons on numerous occasions by avoiding cases that would define a conceived child as a person at some point which is why folks think they may try to sidestep the issue again. Obviously those arguing for the government believe they have the right to create classes of persons without some or all of the rights the Constitution guarantees whenever they see fit to do so.
Keegan made herself look like a complete idiot trying to focus on what's a burden rather than the real issue but making herself look like an idiot probably isn't unfamiliar and therefore uncomfortable territory for her.
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IMHO, there is another flaw in Kagan's logic that I haven't seen addressed by anyone. Paying the contraceptive-mandate penalty every year creates a history of non-compliance with the IRS. Such a history can cause trouble. Here's just one example from the IRS Penalty Handbook.
Review available IRS information in determining whether or not the taxpayer exercised ordinary business care and prudence. Check the preceding tax years (go back at least three years or twelve quarters) for payment patterns and the taxpayer’s overall compliance history.Who knows how a history of intentional non-compliance will play out 5-10 years from now.Assertion of the same penalty(s) in the taxpayer's history may indicate that the taxpayer is not exercising ordinary business care.
If this is the taxpayer’s first incident of noncompliant behavior, weigh this factor with other reasons the taxpayer gives for relief, since a first time failure to comply does not by itself establish reasonable cause. See IRM 20.1.1.3.6.1 for First-Time Abate.
Consider the length of time between the event cited as a reason for the noncompliance and subsequent compliance. The length of time between events may serve to cancel or reduce the event’s effect. Penalty relief may not be appropriate if, after considering all facts and circumstances, the taxpayer failed to correct their noncompliant behavior within a reasonable period of time.
Can the supreme court miss the side of a barn from 5 feet with a double barrel 12 gauge shotgun that fires only truth?
Aw hell, they could prolly manage to miss the water if’n they fell out of a boat.
I think Hobby Lobby should-- and I cautiously predict, will--win this case, but the "200 years of precedent" the author talks about is far more mixed than the article lets on. Corporations have always been understood to have certain constitutional rights, chiefly those relating to protections of property rights. There are also certain constitutional rights that corporations clearly do not have, such as the privilege against self-incrimination. There are certainly gray areas in this field of law.
For example, individuals who operate a corporation retain attorney/client privilege while the attorney/client relationship between the corporate entity and an attorney has no where near the same degree of protection.
The few gray areas that exist are very small and in fact most have equivalents in law as it relates to individuals in some circumstances.
" In the words of Chief Justice Marshall, a corporation is "an artificial being, invisible, intangible, and existing only in contemplation of law." Dartmouth College v. Woodward, 4 Wheat. 518, 636 (1819). As such, it is not entitled to "`purely personal' guarantees" whose "`historic function' . . . has been limited to the protection of individuals." First National Bank of Boston v. Bellotti, 435 U.S. 765, 779 , n. 14 (1978). Thus, a corporation has no Fifth Amendment privilege against self-incrimination, Wilson v. United States, 221 U.S. 361 (1911), or right to privacy, United States v. Morton Salt Co., 338 U.S. 632 (1950). On the other hand, a corporation has a First Amendment right to freedom of speech, Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976), and cannot have its property taken without just compensation, Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978). A corporation is also protected from unreasonable searches and seizures, Marshall v. Barlow's, Inc., 436 U.S. 307 (1978), and can plead former jeopardy as a bar to a prosecution, United States v. Martin Linen Supply Co., 430 U.S. 564 (1977). Furthermore, a corporation is entitled to due process, Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408 (1984), and equal protection, Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869 (1985), of law. Whether a particular constitutional guarantee applies to corporations "depends on the nature, history, and purpose" of the guarantee. First National Bank of Boston, supra, at 779, n. 14. "
This already exists — just look at ex-felons (that is, those having served their entire sentence) and how they are denied arms, voting, and serving on a jury.
I believe they can fly…
Let's assume for the sake of argument that the USSC declares "Corporations are not People" and therefore the owners of Hobby Lobby don't have the "right" to run their business according to their religious beliefs.
By declaring "Corporations are not people" in this case, wouldn't the USSC also be overturning Citizens United, for which Justice Kennedy wrote the majority opinion which stated:
"Justice Kennedy's majority opinion[29] found that the BCRA §203 prohibition of all independent expenditures by corporations and unions violated the First Amendment's protection of free speech. The majority wrote, "If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech."[30]
I think they would. If the USSC is to be consistent, they simply HAVE to find for Hobby Lobby. If they don't, Citizens United is absolutely meaningless at worst, contradictory at best.
Just my own humble non-legal opinion.
Given the remote possibility that some freepers and lurkers have not seen the following excerpts, you will probably find them very interesting.
”State inspection laws, health laws, and laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c. are not within the power granted to Congress. (emphases added)” —Gibbons v. Ogden, 1824.“Congress is not empowered to tax for those purposes which are within the exclusive province of the States.” —Justice John Marshall, Gibbons v. Ogden, 1824.
“Inspection laws, quarantine laws, health laws of every description (emphasis added), as well as laws for regulating the internal commerce of a state and those which respect turnpike roads, ferries, &c., are component parts of this mass.” —Justice Barbour, New York v. Miln, 1837.
“Direct control of medical practice in the states is obviously (emphasis added) beyond the power of Congress.” –Linder v. United States, 1925.
Remember in November!
I’ve already given up on the fantasy that our government, especially at the federal level,
IS IN ANY WAY LEGITIMATE.
The only thing they have is FORCE. They do not have my willing compliance, as they are an illegitimate authority at this point.
The Federal government has long been an illegitimate government as compared to the government the Constitution defines. Which laws are or are not logically consistent is a measure of how far from legitimate government is in relation to a given issue.
To return to fully Constitutional government we'd need to overturn more than a few USSC decisions.
JMHO
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