Hobby Lobby & Health Care: Its going to take me awhile to digest this decision. Im definitely not a con law expert (or even a fan) and Ive actually been following the Halbig v. Sebelius case more closely than Hobby Lobby. Still, Ill offer a few preliminary thoughts. I know a lot of you have been following the case more closely than me -- feel free to add your wisdom. In fact, a lot of you have followed this case WAY more closely than me so add all you can -- especially arguments in support of the decision, because I came away a little baffled but that says more about my understanding of con law than it does about the majoritys opinion. First, its RFRA/free exercise case (not an establishment case -- sorry if I misled folks. The media certainly makes it sound like this is an undisputed first amendment win. Not so much). Suffice it to say, this is a decision that will probably seem counterintuitive to many/most non-lawyers. Get ready to treat corporations like people. Lawyers are already used to it, but this case arguably extends the corps are people logic to new areas. Overall, I think its hard to swallow the idea that corps have beliefs and practice religion -- especially when corps are created in the first place in order to separate their owners from the business and insulate them from liability. Heck, I know people who make a living creating corps that can do things their owners cant. Now the owners want to claim the benefits of not being one and the same with the corps they form while having the corp considered one and the same for first amendment purposes. Its a little mind-bending, but I dont know the free exercise case law well. Maybe it makes sense if you read it all. We already know that non-profit corps with religious purposes have right to the free exercise of religion. But why does that necessarily extend to for-profit corps? If we waited a few years until benefit corps catch on everywhere (B corps) could we have gotten around this by making religious owners register their companies as B corps instead of S corps? (a little left field, I know ... wishful thinking). The connection between the familys religious conviction and the contraceptive mandate is very attenuated in my opinion (as Ginsburg argues) -- these folks already pay taxes that fund contraception offered under the ACA and other government mandates. Is it really all that much worse to have women who work for them possibly use the ACAs contraceptive coverage instead of, say, having the government give it to them directly? Does it make a practical difference? If the Smith test governed, the dissent would win. Seems like the ACA is applied fairly and uniformly with no intention to encroach on the free exercise of religion. But we dont use the Smith test. RFRA pretty much restores Sherbet (in my simplistic understanding) ..... So, is the contraceptive mandate the least restrictive means to achieve the governments compelling interest? The majority doesnt think so. They say the government could provide contraception directly. Maybe that makes logical sense but will it work? I really dont want to rely on the government to create a program to give women contraception. After all, congress is busy suing the president and otherwise failing to pass useful legislation. Maybe its not relevant to the legal reasoning, but the knowledge that theres pretty much no way thats going to happen makes the decision even harder to swallow. I guess thats okay -- corporations are already considered fictitious legal people. Guess we can complement them with a fictitious Congress .... Even with a religious exemption to the contraceptive mandate what about fiduciary duties? What happens when shareholders disagree? Could a minority or non-controlling shareholder still bring an action to enforce the contraception provisions of the ACA? Im really a con law novice, so feel free to jump in. This one isnt easy -- it requires some imagination. The fictitious person concept has always required creative thinking though. Im waiting for the John Gray of Con Law to explain the decision to me. After all, the line that best summarizes my feelings right now is Corporations are from Mars and women are from Venus. More seriously though, could this case give rise to all new sorts of rights for the corp and shareholders? To constituency statutes? I actually wonder if weve just opened the door to German style capitalism? Or did we just close it? I cant tell.
Posted on: Tue, 01 Jul 2014 03:15:12 +0000
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