So, let me get this straight. A federal judge is worried about the public perception of the Court, and his solution is to write a piece that actually works to foster the very negative perception that hes supposedly trying to avoid? Frankly, Im not buying it. There are only two possibilities here. Either the judge actually believes the argument that the Hobby Lobby opinion was motivated by gender, politics or religion, and he just lacks the courage to admit it; or, he does not believe those false public perceptions, and he lacks the courage to correct them. (Not that this judge actually lacks courage, of course. But, it would certainly look that way to the public.) Worse, Judge Kopf presents us with a cure that is worse than the disease. Apparently, Judge Kopf believes that the publics acceptance of the Courts opinions would be enhanced by (1) lower court judges publicly attacking the Supreme Court and (2) federal courts refusing to hear meritorious cases. He asks, What harm would have befallen Hobby Lobby family members who would have been free to express their religious beliefs as real persons? Really? What would this judge say if a litigant made that absurdly offensive argument in the courtroom? Gee, judge, how about granting my motion for summary judgment because, ya know, theyll eventually get over it, dont you think? Not only that, but in his quote, Judge Kopf embraces an argument that was only accepted by two of the nine justices. Not even Breyer or Kagan would go so far as to categorically deny corporations the right to bring claims under RFRA. And, for good reason. If corporations are not protected by RFRA, then the government has the power to shut down a Jewish deli or a Kosher butcher. After all, what harm would befall the Jewish butcher if he is free to express his religious beliefs individually? Im sure that the nations Kosher food needs can be met by individual butchers who are effectively prevented from doing business in corporate form. Poppycock! The Supreme Court simply applied a straightforward state that has been on the books for more than 65 years. That is, whenever a statute refers to a person, it also applies to corporations. The statutes context-based exception would not apply, and this judge should know it. The long-standing principle of statutory interpretation is that context is derived from the words of the statute itself. That view was specifically affirmed with respect to corporate personhood by the Supreme Courts 1993 decision in Rowland v. California Mens Colony. Im starting to worry that the public might believe that Judge Kopf doesnt know how to read a statute. At the end of the day, this case involves a regulation created by an agency, and the regulation violates a statute passed by Congress. If Congress had included the birth control mandate, the result might have been different. But, as it is, the ACA exempts all employers with fewer than 50 employees, all employers with grandfathered plans, along with any employer that was given an exemption by DHHS. In all, 97% of employers were exempted by statute or regulation. The refusal to give Hobby Lobby a very modest exemption from four types of birth control is just absurd. To be honest, the decision is so utterly obvious that it is boring. And, lacking any form of intelligent argument to the contrary, Judge Kopf and those like him are resorting to fanning the flames of public outrage and then pointing to those flames as an argument in their favor. And, to what end? As others have noted, this article only serves to disqualify Judge Kopf from any case that turns on the concepts that he trashed here. And, by concepts, I basically mean the law.
Posted on: Tue, 08 Jul 2014 07:55:55 +0000
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