Anti-gay activists are rejoicing at the Supreme Court's decision in Hobby Lobby today, in part because they are hopeful that the decision will pave the way for one of their own policy goals: to use the religious liberty argument to push for broad exemptions for corporations from nondiscrimination laws.
Liberty Counsel's Matt Barber is hopeful that the decision bodes well for those trying to use religious freedom as a cloak to justify discrimination against LGBT people:
Peter LaBarbera of Americans for Truth About Homosexuality has a similar take:
LGBT Left has been winning in the courts, but now we have hope that SCOTUS will honor small biz conscience exemptions on homosexuality #tcot— Peter LaBarbera (@PeterLaBarbera) June 30, 2014
There may be reason for them to be optimistic. As SCOTUSblog pointed out, the majority's opinion pointedly leaves open "the question of whether the Government has a similarly compelling interest in preventing discrimination on the basis of sex or sexual orientation."
With respect to implications for other kinds of religious-based discrimination, the Court writes that racial discrimination in hiring will not be permitted under RFRA because "The Government has a compelling interest in providing equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to acheive [sic] that critical goal." Note that this leave open the question of whether the Government has a similarly compelling interest in preventing discrimination on the basis of sex or sexual orientation.
UPDATE: TPM has more on this.
UPDATE II: Bryan Fischer of the American Family Association has joined the chorus:
What freedom means: if you want to hire homosexuals, you can. If you don't want to hire homosexuals, you don't have to.— Bryan Fischer (@BryanJFischer) July 1, 2014
The Religious Right’s reaction to the Supreme Court’s decision in the Hobby Lobby case — in which the Court’s conservative majority ruled that some for-profit businesses must be exempt from the Affordable Care Act’s contraception coverage mandate — has started rolling in.
Erick Erickson sees the decision as a victory over the promiscuous:
My religion trumps your “right” to employer subsidized consequence free sex.— Erick Erickson (@EWErickson) June 30, 2014
Eric Metaxas thinks King George III would have been on the side of contraceptive insurance:
The Franciscan University of Steubenville compared businesses that don’t want to provide their employees with contraception coverage to religious martyrs in ancient Rome:
Steve Deace called the Green family, which owns the Hobby Lobby chain, "the Rosa Parks of the religious liberty fight" and urged the movement not to "settle" with just the Hobby Lobby victory:
If we play our cards right, and God grants us a favor, we can use this as a momentum changer. That’s mainly thanks to the Green family, who just became the Rosa Parks of the religious liberty fight. Just as her refusal to comply with an unjust edict on a bus one day blew the lid off the civil rights movement, perhaps the Greens’ refusal to comply with Obamacare’s unjust edict can accomplish the same for a similarly worthy cause.
But that won’t happen if we “settle” for this win like we have all too many others.
AFA’s Bryan Fischer thinks he knows Chief Justice John Roberts’ motivation to vote with the Court's majority:
Roberts joined majority opinion today. His way of admitting that he blew it when he upheld ObamaCare to begin with.— Bryan Fischer (@BryanJFischer) June 30, 2014
And finally, the American Family Association is taking a poll:
Writing for the majority in the Hobby Lobby case, Justice Alito emphasized [PDF] that the ruling, which partly overturned the Obama administration’s rules on birth control coverage, does not apply to other cases involving religious objections to government regulations:
This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage man-dates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs. Nor does it provide a shield for employers who might cloak illegal discrimination as a religious practice.
In any event, our decision in these cases is concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious disease) and may involve different arguments about the least restrictive means of providing them.
Apparently, the Supreme Court has determined that contraception, unlike immunizations, just doesn’t cut it in terms of public health.
In a footnote, Alito cites findings of the Centers for Disease Control and Prevention to back up claims that the government should be allowed to require immunizations over the religious objections of people who oppose vaccinations.
Of course, the contraception rule, the New York Times points out, “relied on the recommendations of the Institute of Medicine, an independent group of doctors and researchers that concluded that birth control is not just a convenience but is medically necessary ‘to ensure women’s health and well-being.’”
It is undeniable that the advent of contraception, used by around 99 percent of sexually active women, and family planning has had an extraordinary impact on public health on a level similar to the creation of new vaccines. Unless, of course, your worldview leads you to believe that such pills are simply used by women as tools to have an abortion.
Justice Ginsburg points out in her dissent that the Supreme Court has rejected past religious objections to generally applicable rules from non-persons, including church-operated schools:
And where is the stopping point to the “let the government pay” alternative? Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage, see Tony and Susan Alamo Foundation v. Secretary of Labor, or according women equal pay for substantially similar work, see Dole v. Shenandoah Baptist Church? Does it rank as a less restrictive alternative to require the government to provide the money or benefit to which the employer has a religion-based objection?
Religious groups that believe in the subservience of women, reject vaccines and blood transfusions or seek to use controlled substances as part of religious rituals, according to the majority opinion, don’t have as much “religious liberty” than a secular for-profit corporation such as Hobby Lobby.
Hobby Lobby and Conestoga surely do not stand alone as commercial enterprises seeking exemptions from generally applicable laws on the basis of their religious beliefs. See, e.g. Newman v. Piggie Park Enterprises, Inc (owner of restaurant chain refused to serve black patrons based on his religious beliefs opposing racial integration)…
[H]ow does the Court divine which religious beliefs are worthy of accommodation, and which are not? Isn’t the Court disarmed from making such a judgment given its recognition that “courts must not presume to determine…the plausibility of a religious claim?”
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)?
[A]pproving some religious claims while deeming others unworthy of accommodation could be “perceived as favoring one religion over another,” the very “risk the Establishment Claus was designed to preclude.”
While Alito stresses that only closely-held corporations are involved in this case, what about a company board dominated by Jehovah’s Witnesses, Christian Scientists, or evangelicals like David Barton who believe “that the Bible opposes the minimum wage, unions and collective bargaining, estate taxes, capital gains taxes, and progressive taxation in general”?
With Congress currently debating the Employment Non-Discrimination Act, what if Hobby Lobby’s owners cited their religion as a reason to discriminate against LGBT employees? Or refuse to cover HIV/AIDS treatments?
With this ruling, it seems that the court wants to decide for itself what counts as a necessary government strategy to protect public health, and what doesn’t.
North Carolina Lt. Gov. Dan Forest followed Texas Lt. Gov. candidate Dan Patrick to the microphone at the Faith and Freedom Coalition’s 2014 Road to Majority conference. Forest joked about following another “Lieutenant Dan” and said he’d been backstage crossing things out because Patrick was already saying them. Indeed, Forest’s comments about the Constitution being grounded in “biblical truth” echoed Patrick’s Christian-nation address. “My friends,” Forest said, “America is at a great crossroads where it must decide for or against God.”
Excerpts from Dan Forest's remarks:
Forest quoted George Washington and Abraham Lincoln writing about the nation relying on God’s aid, and he said that the Declaration of Independence’s assertion that all men are created equal and endowed by their creator with the unalienable rights of life, liberty, and the pursuit of happiness was “one small declaration from tyranny, one giant declaration of dependence upon Almighty God.”
American leaders, he said, continued to rely on God until Supreme Court rulings on church-state separation:
In America, as time moved on, our leaders sought the help of the Lord through the great and terrible Civil War, through a Great Depression, through two great world wars and numerous other conflicts. Then, in 1947 our Supreme Court separated church and state and placed a high wall between the two. In 1962 our Supreme Court removed prayer from our public schools. In 1973, our Supreme Court ruled that it was OK to kill children still in the womb. In the span of a mere 25 years, we, the people allowed our nation to turn its back on God in the name of independence and freedom.
And he began a litany of ways he said America had turned its back on God:
We have forgotten God and we call it freedom.
We kill our children for convenience, and we call it freedom.
We enslave our poor in welfare and call it freedom.
We take from the hard working and give to the sluggard in the name of income equality and call it freedom.
We allow our children to become addicted to pornography in the name of free speech and we call it freedom.
We rack up mountains of debt on the backs of our grandchildren and we call it freedom.
We reward the criminal at the expense of the victim and we call it freedom.
We take God out of our schoolhouse, out of our statehouse, out of our courthouse and we call it freedom.
We allow a few individuals in the courts to determine the moral standard for all and we call it freedom.
Forest said the country must choose between “policy band-aids” and getting at the root of problems, which is that we as a nation have taken our eyes of God, “who is the giver of truth, virtue, and a moral compass.”
The heart of the matter is we have forgotten God. We have kicked him out of our house, out of our schoolhouse, out of our courthouse, and out of our statehouse, and now, out of our nation. We call it everything but what it is, we call it everything but sin, the turning away from God.
He said that the national focus on rebuilding after the 9/11 attacks was done in the name of freedom and security, but that we did it by our own strength rather than relying on God.
We don’t just need, my friends, to rebuild the walls of America. We need to rebuild the biblical foundation upon which the walls sit. We need to trust God. Fear only comes when we don’t believe that God is who he says he is. If God is the creator of the universe, if he allows our hearts to beat and our lungs to breathe, why do we not trust him? If we trust God, my friends, there is nothing we can’t accomplish. With him we can do anything. Apart from him we can do nothing. Seek first his kingdom and all these things will be given.
We continue to declare ‘God Bless America’ without doing our part, without prayer, without fasting, and repentance as a nation, without recognizing the sins we commit and humbling ourselves before the sovereign ruler of nations, and asking for forgiveness.
It is time for America to recognize that freedom does not come from being a nation of wealth, power, influence, abundance, and ease – but rather it comes from being a humble nation on its knees. It behooves us then, to humble ourselves before the offended power, to confess our national sins, and to pray for clemency and forgiveness.
Part of the Christian-nation lineup at this weekend’s Faith and Freedom Coalition Road to Majority conference was former Arkansas Gov. Mike Huckabee, a right-wing media figure and former (and likely future) presidential candidate.
Excerpts from Huckabee's remarks:
Huckabee said that he and his wife recently went to China to celebrate their 40th anniversary. He said he hadn’t been earlier because he doesn’t like the Chinese government — citing piracy and dumping but, oddly, not China’s repression of dissent and religious freedom.
He praised the flowering of entrepreneurship in China, saying the country is becoming more like America used to be and America is becoming more like China used to be. Huckabee compared NSA spying to Chinese control over Internet access. And more absurdly, he equated the Chinese government’s erasure from history of the massacre of protesters at Tiananmen Square with what he said was our country’s treatment of the role of God in America’s founding.
“And I thought I’m so glad that I’m in a country that would never erase a significant part of our history, and then I remember that we are erasing most of the history of this country. We’re telling young people that God had nothing to do with the foundation of this country when in fact there wouldn’t be a United States of America if it were not for the men and women of faith who got on their knees to pray and then got on their feet to fight, who took muskets off their mantles and took on the toughest army that had ever existed in the world at that time and had no chance of creating a new country, but they did -- because of the Providence of God’s hand. And you try to find that in an American textbook today in a public school, and good luck doing it.
Maybe Huckabee’s desire to have public school textbooks teaching that God was behind America’s founding reflects the fact that he’s been hanging out with Christian-nation zealot David Lane, who wants to make the Bible a primary public school textbook. CBN’s David Brody reported on Friday that Lane has organized a European trip for Huckabee and pastors from key primary states. Huckabee says the trip, called “Reagan, Thatcher, Pope John Paul II Tour: God Raising Extraordinary Leaders for Extraordinary Times,” is an opportunity to show “the human instruments used by God to change the world’s history.”
Huckabee clearly has a hankering to put himself in that category. At the Faith and Freedom conference, he railed against government regulation and “irrational people” running the government. He said abortion is “a curse for which we will answer.” He also signaled what may be a defining campaign issue if he decides to run: an attack on the federal courts.
And one of the things that I do not understand is why more Americans have not rallied in opposition to the notion that just because the Court says something that that is the final word. Have we not read our Constitution? Have we not reminded ourselves that we have three branches of government, not one, and all of those three branches are equal branches of government. One is them is not superior to either of the other two, and certainly not to both of the other two. This notion that when the Supreme Court says something it’s the last word is fundamentally unconstitutional and wrong. It is the Supreme Court, not the supreme branch. And we have allowed guys and women in black robes not simply to interpret a law, but to transform a law, rewrite a law, and actually prescribe the fix and implement it, two responsibilities and functions that are left exclusively and totally to the legislative and executive branches.
It is high time that we recognize that one of the greatest threats to our liberty in this land is the notion of judicial supremacy. There is no such thing in the Constitution of judicial supremacy, and one of the ways in which we must transform America, unlike the way that our current occupant of the White House has transformed America, is to teach our children and to teach our peers that ultimately the authority in this country is not the courts, nor is it even the legislature or the executive branch, the ultimate authority in this country still remains the people of America, We the People. And if we don’t truly believe that and exercise that, we will lose this country not because we have to, but because we have given it away.
Huckabee that he is optimistic, because there has never been a greater opportunity to show what freedom looks like – and it’s not just because there are a lot of conservative activists motivated to fight.
It’s because I believe that there is a God, and that his country would not be here without him, and that if this country will get on its knees and it will ask God’s forgiveness for how we have behaved. It’s not about the people who hate us, it’s about those of us who decide we wanna love God more than we wanna hate our enemies. And when we get on our knees in forgiveness, God will heal our land and He will restore us.
To those at the conference who seem overly pessimistic about the state of the country and the world, he said he’s “read the end of the book,” and his message is, “In the end, we win, and that’s good news.”
In his speech to the March for Marriage today, National Organization for Marriage chairman John Eastman compared the Supreme Court’s decision striking down a key part of the discriminatory Defense of Marriage Act to the infamous Dred Scott decision.
Eastman cited Justice Scalia’s “call to arms” in his dissent to the DOMA decision, paraphrasing it as, “the court should never take away controversial issues away from the voters in this country.”
“The last time the court tried to do that a century and a half ago on the slavery question, Abraham Lincoln refused to comply,” he said.
All were right-wing efforts to literally overthrow President Obama. None of them exactly worked.
In 2012, Family Research Council president Tony Perkins similarly warned of an anti-government uprising if the Supreme Court were to strike down bans on same-sex marriage. “I think that could be the straw that broke the camel’s back,” he said, warning that such a ruling would mean “you could have a revolt, a revolution, I think you can see Americans saying ‘enough of this’ and I think it could explode and just break this nation apart.”
In case you thought that was just a one-time gaffe, Perkins maintained a year later that if the government “goes too far” on marriage equality, it would “create revolution” and “literally split this nation in two and create such political and cultural turmoil that I’m not sure we could recover from it.”
That brings us to a poll released today by the Human Rights Campaign and conducted by Alex Lundry, who served as Mitt Romney’s data director in 2012. Respondents to the poll were read Perkins’ “revolution” remarks verbatim. Unsurprisingly, only a tiny handful agreed with him, and even most opponents of marriage equality didn’t buy into his idea of an anti-gay revolution.
Conducting his poll at the beginning of June, Lundry didn’t find much support for that kind of revolt when the quote was read to respondents, with 59 percent overall disagreeing with Perkins. Of people who said they were opposed to gay marriage, 58 percent said they wouldn’t do anything, despite disagreeing and being disappointed in the decision.
“Only one directly mentions the word ‘revolution,’ five voters threaten to leave the country, and a scant fifteen people (3% of opponents) mention any form of protest,” reads a prepared polling memo. “Clearly, there is no real threat of widespread calamity should we extend the freedom to marry to gays and lesbians.”
Support for gay marriage is at 56 percent, with 37 percent opposed, squaring with public polls. Asked to rate the degree of their support, 44 percent said they “strongly” support legalization, with only 28 percent opposed.
Those feelings are reflected in some of the other answers to the survey: 74 percent of people said their lives wouldn’t change with legalized gay marriage, and among those who did foresee a change, many rated it as one that would be for the better.
But we don’t expect Perkins to be deterred. The only poll on the topic that the Family Research Council president appears to believe was sponsored by his organization and only surveyed Republicans and Republican-leaning independents.
There is about a month remaining before the end of the Supreme Court’s current term, which is expected to be at the end of June. The Roberts Court has already done great damage in the cases it has decided so far. The far-right’s ruling in McCutcheon v. FEC drove another dagger into the heart of our democracy by empowering the wealthiest and most powerful among us to exercise even more control over our election. Town of Greece v. Galloway continued the arch-conservatives’ goal to undermine the constitutionally mandated separation of church and state.
But there are many important cases remaining to be decided over the next several weeks. Depending on how the Court rules, the entrenched power imbalance already harming our democracy could be significantly worsened.
Recess appointments and sabotage of the executive branch: NLRB v. Noel Canning.
This case has the potential of completely remaking the president’s recess appointment authority from how it has been understood and exercised since the 1800s. The recess appointment power has long been used by presidents of both parties during all kinds of recesses, not just those occurring annually between sessions of Congress. And it has always been used to fill vacancies regardless of when those vacancies first became open. But that may soon change.
It’s important to note that this case arose out of far-right conservatives’ efforts to nullify laws they don’t agree with. In this case, the laws in their crosshairs were those protecting workers, which they sought to undermine by preventing the National Labor Relations Board from having enough members to conduct business. Specifically, Republicans blocked the Senate from holding confirmation votes on President Obama’s nominees to the NLRB, finally provoking him to make recess appointments in January of 2012. This was during a vacation period when the Senate was meeting for pro forma sessions for a few minutes every few days, a practice that came about for the specific purpose of preventing recess appointments.
The Supreme Court has been asked to answer several questions: (1) Can a recess appointment be made only during the recess between two sessions of Congress (which occurs once a year and can last only a split second), or can it be made during any recess? (2) Can the Senate use pro forma sessions to turn what would otherwise be a recess into a non-recess, thereby preventing recess appointments? (3) Is a recess appointment limited to those vacancies that first became open during the same recess during which the appointment is made?
Attacks on public sector unions: Harris v. Quinn.
This case is about home care personal assistants (PAs) in Illinois, who provide in-home care under two of its Medicaid programs to people with disabilities and other health needs. But it has the potential, should the Roberts Court wish, to deliver a crippling blow to public sector unions nationwide.
Illinois PAs are classified as state employees for the purposes of collective bargaining and work under a common “agency shop” agreement: If the employees in a particular group choose to have a union represent them, the government employer recognizes that union as their exclusive representative. When the union carries out its collective bargaining functions, it does so on behalf of all the employees, regardless of whether they actually join the union. Members pay dues to support this activity on their behalf. To prevent “free riding,” the law requires non-union members to pay their fair share to support the basic collective bargaining activities being done on their behalf, but not to support non-collective bargaining activities such as political campaigning with which they might disagree.
The Supreme Court has long recognized that such arrangements for public employees are consistent with the First Amendment, dating back to a 1977 case called Abood v. Detroit Board of Education. But that precedent is threatened in this case as petitioners – backed by the anti-worker National Right to Work Legal Defense Foundation – call for the Roberts Court to overrule Abood. According to the PAs who brought this case, the arrangement violates their First Amendment freedom to choose with whom to associate. They also claim that exclusive representation violates their right to petition the government on matters of public policy, since the subject of their negotiations is the functioning and budgets of state Medicaid programs.
As Justice Kagan noted during oral arguments, this “would radically restructure the way workplaces across this country are run,” imposing so-called “right to work” regimes on all public employment throughout the United States. In so doing, it would substantially drain the coffers of public sector unions, which has been a longtime political goal of conservative extremists.
Unfortunately, the far-right Justices on the Roberts Court have already demonstrated their eagerness to join in the political attack on workers. Two years ago, in Knox v. SEIU (another case involving public sector unions), they severely undercut another longtime precedent that had enabled public sector unions to protect workers’ rights by deciding an issue that wasn’t before them, ruling against the union on an issue that it had not even had a chance to argue. As Justice Sotomayor pointed out in her dissent, the majority was acting in violation of the Court’s own rules to achieve this result. Whether they will show a similar eagerness to undercut public sector unions remains to be seen.
Corporate religious liberty rights: Sebelius v. Hobby Lobby and Conestoga Wood Specialties Corp. v. Sebelius.
These cases have the potential to give religious liberty rights to for-profit corporations, and to empower their owners and managers to ignore laws on health insurance coverage, employment discrimination, and other areas based on their religious beliefs.
Under the Affordable Care Act and HHS guidelines, employers generally have to provide certain preventive health services, including FDA-approved contraception, to women employees. The cases challenging this requirement involve several companies and their owners. Conestoga Wood is a for-profit corporation with 950 employees, owned by members of the Hahn family. Hobby Lobby is an arts and crafts chain store with over 500 stores and about 13,000 full-time employees, owned by members of the Green family. The Greens also own a corporation called Mardel, a chain of 35 for-profit Christian bookstores with about 400 employees.
The Greens and the Hahns have religious-based opposition to the use of some of the contraceptives covered by the law. They claim that the law violates not only their own religious freedom, but also the religious freedom of the large for-profit corporations they run. The primary law at issue in the cases is the Religious Freedom Restoration Act (RFRA), enacted in 1993. Under RFRA, a federal law cannot “substantially burden a person’s exercise of religion” unless it advances a compelling government interest in the least restrictive manner.
A key question for the Justices is whether a for-profit corporation is a “person” covered by RFRA. Unsurprisingly, before this litigation, no court had ever found that for-profit corporations have religious liberty interests either under RFRA or under the First Amendment. Yet a divided Tenth Circuit ruled for Hobby Lobby: They concluded that since corporations have First Amendment political speech rights under Citizens United, it follows that they also have First Amendment religious rights, and that RFRA should be interpreted to include them as “persons.” As PFAW Foundation Senior Fellow Jamie Raskin has written, “the outlandish claims of the company involved would not have a prayer except for Citizens United, the miracle gift of 2010 that just keeps giving.”
The next question is whether the coverage requirement is a substantial burden on the families’ (and possibly corporations’) exercise of religion, even though they are not forced to use or administer the contraception, or to affirm that they have no religious objection to it. Since the ones providing the health insurance are the corporations and not the individual owners, a ruling in favor of the owners would have implications for a concept basic to American law: that a corporation is a legally separate entity from its owners.
If the Justices find a substantial burden on the corporations or their owners, then they will determine if the government interest (furthering women’s health and equality) is a compelling one, and if the coverage provision advances that interest in the least restrictive manner.
While a victory for either the corporations or their owners would directly harm women’s health, it could also open the door to employers being able to exempt themselves from other laws that they have religious objections to, such as anti-discrimination protections.
Women’s Access to Reproductive Health Clinics: McCullen v. Coakley.
The Court is being asked to overrule a 2000 precedent upholding buffer zones around reproductive health clinics. The current case involves a Massachusetts law that creates a 35-foot buffer zone around such clinics (with exceptions for employees, patients and others with business there, and people passing through on their way somewhere else). Anti-choice advocates claim this violates their freedom of speech because it restricts only people with a particular viewpoint.
The lower courts disagreed, citing the 2000 case of Hill v. Colorado, where the Supreme Court upheld a buffer zone making it illegal to approach within eight feet of people at clinics for the purpose of counseling, education, or protesting. (This applied anywhere within 100 feet of the clinic.) That 6-3 decision analyzed the law as a content-neutral regulation of speech that was reasonable in light of the importance of protecting unwilling people’s right to avoid unwanted conversations and their right to pass without obstruction. However, two of the conservative Justices in the 6-3 majority have been replaced by far more conservative Bush nominees: Rehnquist (by Roberts) and O’Connor (by Alito). Since Justices Kennedy, Scalia, and Thomas dissented in the 2000 case, there may very well be five votes to not only strike down the Massachusetts buffer zone but also to overrule Hill completely.
As noted in an amicus brief that PFAW Foundation joined, the Massachusetts law applies to people regardless of the content of their speech and is a content-neutral way to ensure that women can enter the clinics to exercise their constitutional rights. The law does not prevent abortion opponents from approaching women who are more than 35 feet from the clinic entrance (as opposed to the Colorado law, which prohibited unwanted close contact anywhere within 100 feet of the clinic). And the record in this case shows that anti-choice advocates have consistently been able to distribute literature to individuals approaching clinics, as well as to have quiet conversations with them.
Nevertheless, many felt after oral arguments that five conservative justices were likely to strike down the Massachusetts law. If they do, we will see if they also overrule the 2000 precedent, opening the floodgates to another era of efforts to block women from exercising a deeply personal constitutional right.
Regulating greenhouse gases: Utility Air Regulatory Group v. EPA (and several companion cases).
In these cases, industrial interests and their allies are attacking the EPA’s ability to effectively regulate their greenhouse gas emissions.
In Massachusetts v. EPA in 2007, the Supreme Court ruled in a 5-4 decision that the EPA has the authority under the Clean Air Act to regulate emissions of greenhouse gases from new motor vehicles, since they easily fit within the CAA’s broad definition of “air pollutant.” This ruling, resisted by the Bush Administration, allowed the Obama Administration to adopt regulations on greenhouse gases from cars and trucks in 2010.
Under the EPA’s longstanding interpretation of the Clean Air Act, once EPA regulation of a pollutant from mobile sources (like cars and trucks) goes into effect, that pollutant is automatically subject to regulation under EPA rules for stationary sources (like factories and power plants). Those regulations involve permitting requirements for facilities emitting pollutants over statutory thresholds. But greenhouse gases are emitted in far greater volumes than other pollutants, and millions of industrial, commercial, and even residential sources exceed the statutory threshold. The EPA recognized that immediately adding these millions of stationary sources to its permitting programs would impose tremendous costs to both industry and to state permitting authorities. So in what is called the “Tailoring Rule,” the agency chose to move gradually, initially subjecting only the largest sources of emissions to mandatory greenhouse gas permitting, and planning a gradual phase-in for others, with planned rulemakings on how best to accomplish that phase-in.
Industrial interests, the Chamber of Commerce, and their conservative allies in state government have challenged the EPA rules. They argue that since the addition of greenhouse gases to the stationary sources permitting programs would cause what they characterize as results not desired by Congress (such as bringing huge numbers of buildings, including churches, schools, bakeries, and large private homes into the programs), it means that greenhouse gases are not the type of pollutant to which these permitting programs apply. And that lets the major industrial contributors to greenhouse gas pollution off the hook. They also claim that the Tailoring Rule is a rewrite of the Clean Air Act, which only Congress can do. So we end up with hyperbolic right-wing talking points in Supreme Court briefs, like this from Southeastern Legal Foundation:
This case involves perhaps the most audacious seizure of pure legislative power over domestic economic matters attempted by the Executive Branch since Youngstown Sheet & Tube [the 1952 case striking down President Truman’s seizure of steel mills during the Korean War].
As the Constitutional Accountability Center noted in their amicus brief supporting the EPA, the agency’s gradual approach satisfies rather than subverts the central purpose of the Clean Air Act:
This is not a suspension of the relevant statutory provisions nor a failure to enforce the CAA as written. To the contrary, EPA is setting priorities based on both practical realities and its limited resources, biting off no more than it or, as important, the regulated entities themselves, can chew at any given time. This phase-in of the CAA’s requirements is not a rewrite of the statute, and it is fully consistent with the executive authority vested in the President by Article II of our enduring Constitution and the separation of powers evidenced in the Framers’ design.
American Family Association spokesman Bryan Fischer said on his radio program today that he loved Justice Clarence Thomas’s concurring opinion in Town of Greece v. Galloway so much that after reading an excerpt to his audience, he remarked, “I’m reading this and I’m thinking, man, I’m listening to myself.”
“Clarence Thomas is sounding like me,” Fischer said. “There’s no restrictions on what states can do, according to the First Amendment.”
David Barton, an influential conservative activist who helped write the Republican Party’s 2012 platform, argues that the Bible opposes the minimum wage, unions and collective bargaining, estate taxes, capital gains taxes, and progressive taxation in general. Should a company whose owners share Barton’s views be allowed to ignore laws that protect workers by claiming that those laws violate the company’s religious beliefs?
That’s a questions being asked as the U.S. Supreme Court considers whether it will recognize for the first time ever that for-profit corporations can make religious freedom claims under federal law.
When an actual human being goes to court with a claim that the federal government is violating their freedom to practice their religion, judges consider several questions in applying the Religious Freedom Restoration Act: Does the law or policy in question place a substantial burden on the person’s religious exercise? If so, can it be justified because the law is advancing a compelling government interest and doing so in the least restrictive way?
That’s pretty straightforward, even if individual cases require tough judgment calls about what constitutes a substantial burden and a compelling government interest. But what happens when a for-profit corporation claims a law violates its exercise of religion? Can a business have a religious conscience?
That crucial question is being considered by the Supreme Court in two cases brought by for-profit corporations claiming their religious freedom is violated by a requirement that their insurance plans include comprehensive contraception coverage. In Sebelius v. Hobby Lobby Stores and Conestoga Specialties Corp. v. Sebelius, business owners say their companies should not be required to provide their employees with insurance that covers kinds of contraception that violate the business owners’ religious beliefs or what they say are the religious beliefs of the corporation itself.
Legal scholars have weighed in on both sides of the claim. While federal courts have never recognized a for-profit corporation’s right to make a religious exercise claim, they have also never explicitly ruled that there is no such right. In the cases now before the Supreme Court, two appeals courts disagreed with each other. The Tenth Circuit sided with Hobby Lobby but the Third Circuit said, “[W]e simply cannot understand how a for-profit secular corporation—apart from its owners—can exercise religion.”
If the Supreme Court sets a new precedent granting for-profit corporations a soul, so to speak, where will it end? Law professors Ira Lupu and Robert Tuttle warn that it would produce “a massive redistribution of legal leverage away from employees and to their employers.” And, they write, “If Hobby Lobby’s claims prevail…other employer claims under RFRA will be very difficult to deny. Some current cases involve objections to coverage of all pregnancy prevention services. In the future, others may involve protection of employees with respect to different medical services, collective bargaining, family leave, or invidious discrimination.”
The Becket Fund, the conservative legal group representing Hobby Lobby, dismisses concerns about opening the floodgates to all kinds of religious objections, saying it hasn’t happened under RFRA to date. But of course, no Court has yet invited the flood of objections by giving business owners the right to claim corporate exemptions for religious belief.
Justice Elena Kagan raised this concern during oral argument, asking Hobby Lobby’s lawyer Paul Clement about employers who might have religious objections to sex discrimination laws, minimum wage laws, and child labor or family leave laws. Clement said he doubted the “parade of horribles” would happen. But Justice Kagan replied that if the Court were to adopt his argument, “then you would see religious objectors come out of the woodwork with respect to all of these laws." Solicitor General Paul Verrilli noted that if the Court grants corporations a right to make free exercise claims, judges will have to grapple with potential harm to employees and other third parties.
But it’s not just employees who could be hurt by such a ruling – it could be companies themselves. David Gans, writing for Slate, made an interesting observation: corporate America is staying out of this case almost completely, which is surprising given its eagerness to use federal courts to promote corporate interests. Gans says that not a single Fortune 500 company filed a brief in the case. Neither did the Chamber of Commerce or the National Federation of Independent Business. The corporate voices that did weigh in — the U.S. Women’s Chamber of Commerce and the National Gay and Lesbian Chamber of Commerce — oppose Hobby Lobby’s claims because recognizing a corporate right to the free exercise of religion would “wreak havoc in corporate boardrooms.”
Gans cites a brief from a group of corporate law scholars “who argued that Hobby Lobby’s argument would eviscerate the fabric of corporate law” because ascribing a business owner’s religious views to the corporation would treat the owner and company as one and the same. “Such an unprincipled, idiosyncratic exception from corporate law fundamentals, the scholars argued, would breed confusion in the law, lead to costly litigation, and undermine critical aspects of corporate law designed to spur creativity and innovation.”
Mary Ann Glendon, a law professor who serves on Becket’s board, has argued that if we want businesses to behave responsibly, “they must be treated as having some moral agency.” The Supreme Court, she says, “should take the opportunity to confirm that businesses can and should have consciences.” It’s a nice thought. But given right-wing efforts to merge the Tea Party and Religious Right, and foster a growing belief that far-right economics and anti-government ideology are grounded in religious dogma, it seems highly unlikely that the consequence of giving conservative business leaders a powerful new tool for undermining government regulation would be more socially responsible corporate behavior.