Tag Archives: courts

Some Thoughts on Hobby Lobby

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I’m riffing here and in a nearby post on The Wall Street Journal Law Blog‘s excerpts of a couple of opinions from this week’s Supreme Court Hobby Lobby decision. That decision can be seen here.

The excerpts in this post are from Justice Ruth Bader Ginsburg’s dissent.

Page 8 of the dissent: The exemption sought by Hobby Lobby and Conestoga would override significant interests of the corporations’ employees and covered dependents. It would deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage that the [Affordable Care Act] would otherwise secure… In sum, with respect to free exercise claims no less than free speech claims, “[y]our right to swing your arms ends just where the other man’s nose begins.”

This is nonsense. “Corporations’ employees and covered dependents” have no legitimate interest in company-paid, or insurance-paid, contraceptives. This is the sort of thing that’s plainly user maintenance, and belongs in the pocket books of the user. Besides, as a practical matter, contraceptives just aren’t that expensive. Another aspect about this claim that fascinates me is a bit of history. It used to be the case that offering a dental plan or health coverage was a business competition matter in the market for quality employees. That got nearly completely morphed into a manufactured “right.” Now Justice Ginsburg is busily (and cynically, say I) attempting to manufacture a “right” to contraceptives paid for with OPM.

Contra Ginsburg’s other claim here, women are not prevented from exercising their own religious beliefs. They remain free to practice their beliefs, and as the separate matter that this truly is, they’re free to obtain the contraceptives of their choice. They just don’t get to force other people to pay for them, any more than, oh, let’s say, a Presbyterian gets to force a Lutheran to pay for the former’s church. As Ginsburg noted in the above excerpt, “[y]our right to swing your arms ends just where the other man’s nose begins.” That applies to both people’s arms.

Pages 19, 33-34: The Court’s determination that [the Religious Freedom Restoration Act] extends to for-profit corporations is bound to have untoward effects. Although the Court attempts to cabin its language to closely held corporations, its logic extends to corporations of any size, public or private….

Would the exemption the Court holds RFRA demands for employers with religiously grounded objections to the use of certain contraceptives extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among others)?

I agree with Ginsburg’s argument on the extensibility of the exemption from closely held corporations to “corporations of any size, public or private,” and I hope she’s right. On what basis would a government claim that the owners of a closely held business, being small in number, have a legitimate claim on exercising their religious beliefs through their business, but the business owners of a large corporation (the shareowners of GM is one example bandied about in this context) must set aside their religious beliefs for the sacrilege of having bought shares in that company, or become partners in a large, interstate law firm?

On the potential for a variety of religious exemption claims, I certainly hope so—that’s what the Free Exercise is about: preventing government, especially, from dictating what a group’s religious beliefs must be, or how they must exercise those beliefs that are government-approved.

Pages 23-24: Even if one were to conclude that Hobby Lobby and Conestoga meet the substantial burden requirement, the Government has shown that the contraceptive coverage for which the ACA provides furthers compelling interests in public health and women’s well being. Those interests are concrete, specific, and demonstrated by a wealth of empirical evidence. To recapitulate, the mandated contraception coverage enables women to avoid the health problems unintended pregnancies may visit on them and their children.

Not at all. Eliminating the Contraceptive Mandate does not at all prevent women from getting the contraceptives of their choice (and so the actually rare health problems associated with pregnancies, unwanted or not). Women just won’t get to shift the cost of their choice—including their choice to use contraceptives at all—onto others.

Either we have Free Exercise, or we do not. There’s not much middle ground (there is some), but that middle assuredly cannot include government’s mandate that a man provide must for another that which his own religion bars him from providing to himself.

In Which I both Agree and Disagree

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…with a Supreme Court decision. In Mccullen v Coakley, the Supreme Court unanimously struck down a Massachusetts law that placed a mandatory 35 foot buffer zone around abortion clinics within which anti-abortion protests were prohibited. The purpose of the law, to allow women wishing an abortion unfettered access to the clinic, was met, but overbroadly, according to the court.

That’s the part with which I agree. If we’re going to argue as I have in the past that “free speech zones,” like those on too many college campuses, unconstitutionally restrict free speech, then so does the other side of that coin: non-free speech zones. Either we have free speech in this country, or we do not.

But Chief Justice John Roberts, writing for the Court, displayed a sad misunderstanding of that right of free speech. In his rationale for striking Massachusetts’ law, Roberts wrote

McCullen explained that she often cannot distinguish patients from passersby outside the Boston clinic in time to initiate a conversation before they enter the buffer zone.

And [emphasis added]

As explained, because petitioners in Boston cannot readily identify patients before they enter the zone, they often cannot approach them in time to place literature near their hands….

But this ignores the other person’s (here, the woman seeking the abortion) free speech right to choose what conversation she will hear, especially when that unwanted conversation is directed at her and not, from the public square, to no one in particular (and so equally to everyone). Roberts’ thesis also ignores the intended recipient’s free speech right not to have materials pressed on her without her prior consent.

I disagree with Roberts’ rationale.

In the end, an opinion founded on bad law is itself a bad opinion, even if it reaches the right conclusion.

Again, Racism on the Supreme Court

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Justice Sonia Sotomayor is at it again.

Supreme Court Justice Sonia Sotomayor rejected on Sunday the notion that alternatives to affirmative action such as income or residency could achieve similar results in diversifying the nation’s colleges and universities.

And

Sotomayor strongly backs affirmative action and wrote the dissent in April in a 6-2 decision that upheld a state’s right to outlaw the use of race in determining admissions.

Because Sotomayor insists on using race as a useful, somehow, discriminant in getting ahead.

She added, in so many words, that mere merit, just being actually qualified isn’t enough; she used “legacy” questions as her excuse [emphasis added]:

Look, we have legacy admissions. If your parents or your grandparents have been to that school, they’re going to give you an advantage in getting into the school again. Legacy admission is a wonderful thing because it means even if you’re not as qualified as others you’re going to get that slight advantage.

Because adding a second wrong corrects both wrongs. Of course we should have equal outcomes, regardless of qualification. Of course who you know and what color your skin is should be included in the determining factors. Minorities, this minority Justice insists, just don’t have what it takes to succeed without that special treatment.

It doesn’t get any clearer than this.

The Ground Zero Cross and Atheists

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American Atheists filed suit three years ago against having this symbol included in the National September 11 Memorial Museum, which officially opened late last month. Their suit was tossed forthwith as baseless; US District Court Judge Deborah Batts wrote

No reasonable observer would view the artifact as endorsing Christianity. [The museum curators] have not advanced religion impermissibly, and the cross does not create excessive entanglement between the state and religion.

The group appealed to the Second Circuit which responded by instructing American Atheists actually to make a case and not just bellyache, and to do so by 14 July. In so instructing, the Appellate Court cited an amicus brief provided by the Becket Fund for Religious Liberty which argued among other things that

Courts should not allow people to sue just because they claim to get “dyspepsia” over a historical artifact displayed in a museum.

As Eric Baxter, Senior Counsel for Religious Liberty noted,

Taking personal offense is not an injury that warrants invoking the power of the courts to shut down everything you disagree with. The Constitution is not a personal tool for censoring everyone’s beliefs but your own.

Indeed.

The Courts Get Another One Right

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Quartavius Davis was convicted of robbing, in 2010, seven stores in and around Miami and sentenced to roughly 162 years in prison. His prosecutors based their case, in large part, on cellphone records that placed Davis near the scene.

The evidence included records of the cell towers to which their phones were connected when they placed and received calls, according to court documents.

These data were obtained solely on the basis of a claim “that the records were relevant and material to an ongoing investigation.”

The 11th Circuit demurred. Writing for a unanimous court, Judge David Sentelle wrote in part

[I]t cannot be denied that the Fourth Amendment protection against unreasonable searches and seizures shields the people from the warrantless interception of electronic data or sound waves carrying communications. The next step of analysis, then, is to inquire whether that protection covers not only content, but also the transmission itself when it reveals information about the personal source of the transmission, specifically his location.

And [emphasis added]

One’s cell phone, unlike an automobile, can accompany its owner anywhere. Thus, the exposure of the cell site location information can convert what would otherwise be a private event into a public one. When one’s whereabouts are not public, then one may have a reasonable expectation of privacy in those whereabouts.
…
There is a reasonable privacy interest in being near the home of a lover, or a dispensary of medication, or a place of worship, or a house of ill repute. [W]e do not see…Davis’s location outside his expectation of privacy.

And ultimately,

Cell site location information is within the subscriber’s reasonable expectation of privacy. The obtaining of that data without a warrant is a Fourth Amendment violation.

Yewbetcha.

A 4th Amendment warrant requires a showing of probable cause, a rather stricter standard than just the government claiming an interest. However, the matter isn’t closed with this ruling; the 5th and 6th Circuits have ruled that warrants are not needed in such cases. This points to an eventual Supreme Court case.

The 11th Circuit’s opinion can be read here.