Hobby Lobby Judges Sniffing Airplane Glue?
“Hobby Lobby and Mardel are “persons” excercising religion. . . . "
- Hobby Lobby Stores, Inc. v. Sebelius, 10th Circuit Court of Appeals, No. 12-6294
"(We) conclude that for- profit, secular corporations cannot engage in religious exercise . . . .”
- Connestoga Wood Specialties Corp. v. Sibelius, 3rd Circuit Court of Appeals, No. 13-1144
The United States Supreme Court has agreed to hear cases arising under Obama’s Affordable Care Act, brought by for-profit businesses whose owners object, on purported “religious” grounds, to the requirement that employer-sponsored health plans provide coverage for contraception. The leading case is Hobby Lobby Stores, Inc. v. Sebelius, from the 10th Circuit Court of Appeals in Oklahoma, and the majority opinion was written by Judge Timothy Tymkovich, a George W. Bush appointee.
Hobby Lobby Stores is a for-profit business with 13,000 employees operating a chain of 500 craft stores, selling model airplane kits and the like. Judge Tymkovich, writing for the majority, reversed a District Court ruling that dismissed the case and ruled that the corporate plaintiffs had legal standing to file a federal lawsuit challenging the provision for contraceptive coverage in Obamacare. In so doing, he found that Hobby Lobby Stores, and another company under the same ownership, were “persons” entitled to the free exercise of religion..
At first blush, one might well conclude that Judge Tymkovich was sniffing some of the Testors airplane glue that Hobby Lobby sells, but the opinion is actually well reasoned within the narrow parameters of the law under which it was decided, the 1993 Religious Freedom Restoration Act. What the majority opinion does is to parse the language of that statute to conclude that Congress intended to include for-profit corporations as “persons” entitled to religious freedom under the statute. The majority opinion did not directly address the issue under the First Amendment or make any holding on that basis, although one of the concurring judges did so.
Judge Tymkovich, writing for the majority, made much of the fact that the Green family that owns Hobby Lobby Stores professes to be “deeply religious,” and they have even written a “Christian” mission statement into their corporate trust documents. On this basis, they claim that requiring them to purchase contraceptive coverage for some 13,000 employees who may or may not profess to be Christian somehow violates their religious “freedom.”
In other words, for the Green family, religious freedom means the right to impose their beliefs on others as a condition of employment in a basically secular, for-profit business. That, essentially, is what Judge Tymkovitch’s majority opinion holds, which is arguably a correct reading of the express statutory language.
Within the narrow framework of the RFRA, construing the statutory language as written, Judge Tymkovich's opinion is both factually accurate and well-reasoned. He is, in fact, Exhibit A as to why the Democrats' recent vote to change the fillibuster rules for judicial appointments was both necessary and long overdue. It is the Republicans' expressly stated aim to stack the federal judiciary with highly skilled right-wing ideologues like Tymkovich, while denying the Democrats any opportunity to counterbalance them, and that is why they have abused the fillibuster during Obama's administration by blocking any and all judicial appointments.
So, now, the Supreme Court has decided to take the Hobby Lobby case, along with the Connestoga Wood Specialties Case from the Third Circuit, which held that for profit business corporations have no standing to claim religious freedom under either the RFRA or the First Amendment and upheld the District Court’s dismissal of the case on that basis. There are about forty other cases out there, with several Federal Circuit Courts splitting on the issue, and the Supreme Court has therefore agreed to consider and resolve the issue.
This is just the latest fallout from the deeply flawed insurance-based health care model Obama promoted instead of the taxpayer supported, single-payer model that works both more successfully and equitably in every other modern civilized nation. That's not just a question of rollout or any alleged constitutional violation based on mandatory enrollment or violation of religious “freedom” as in the Hobby Lobby case. It is simply a fundamentally wrong way to provide access to health care under the principle of the greatest good for the greatest number, i.e. to uphold the Constitutional mandate to promote the general welfare of all Americans, but it has also opened up a legal can of worms as with the Hobby Lobby case.
Thanks to Obamacare, the Supreme Court idologues who conceived of corporate personhood for purposes First Amendment free speech, through spending scads of cash from anonymous donors for media access to influence elections, will now get a shot at finding a First Amendment religious “freedom” basis for letting so-called “Christian” fundamentalists use their secular business corporations to enforce restraints on a woman’s control over her own reproductive rights indirectly, which Congress cannot do directly under the Fourth Amendment and Roe v. Wade.
The issue based on close construction of the RFRA statute is arguable either way, given the fact that it is a basically flawed law to begin with, itself of questionable constitutionality as it was enacted in response to a 1990 Supreme Court decision, Employment Division v. Smith, which held that a religiously neutral law of general application, such as Obamacare, does not violate or impinge on an individual’s Free Exeercise rights. The real folly of Obamacare for any truly progressive agenda is that it has now opened the door for the likes of Scalia, Thomas and Alito to find a corporate right of religious freedom under the First Amendment that burdens a woman’s Fourth Amendment right to reproductive freedom. The door may have in fact be opened somewhat for those judicial ideologues to revisit the Fourth Amendment issue under Roe v. Wade as well.
We can be certain that Justice Scalia will write an opinion, whether it be the majority opinion, a concurring opinion or a dissent, that parrots Judge Tymkovich’s narrow statutory analysis under the RFRA in the Hobby Lobby case, without even questioning the constitutionality of that law. What is equally predictable, and more problematic if it is a majority or concurring opinion, is Scalia’s likely treatment of the First Amendment issue, to overturn Judge Cowen’s ruling in the Connestoga Wood Specialties case that secular business corporations do not have a First Amendment right of religious freedom.
This would be an ideologically consistent extension of the Citizens United ruling, that corporations are “persons,” distinct from their owners and officers, for purposes of free speech under the First Amendment. Here, it is predictable that Scalia, Thomas and Alito will find some tortured analysis to uphold corporate religious freedom under the First Amendment as well.
In light of Scalia’s strained reasoning in the Second Amendment cases, effectively readng the Militia Clause out of the Constitution to reach a correct result he could have obtained honestly by applying an evolving standards analysis, his Hobby Lobby ruling might be something even more ridiculous than corporate personhood, like corporate ensoulment, i.e.that secular business corporations have souls which qualifies them as “persons” entitled to religious freedom under the First Amendment. Ensoulment for natural human beings occurs, theoretically for anti-abortion zealots, when the sperm enters the ovum, but with corporations it would occur when the articles of organization, including a “Christian” mission statement in addition to profitable return on investment, are filed with the state secretary of corporations.
More seriously, the Hobby Lobby lawyers in fact argued a theory of “management standing,” where the corporation’s management assert their personal religious beliefs through the corporation as the basis for First Amendment protection under the Free Exercise clause. That is a cock-eyed theory that is sure to persuade right-wing ideologues like Scalia, Thomas and Alito.
We can only hope, and pray, that at least one less ideologically driven justice, like Kennedy or Roberts, will not be affected by the airplane glue reeking from the Hobby Lobby lawyers’ brief. We can only pray to God that they will see right through such nonsense to reverse the 10th Circuit’s ruling in Hobby Lobby Stores, Inc., while upholding the 3rd Circuit ruling in Connestoga Wood Specialties Corp., that .secular business corporations do not have either a First Amendment or a statutory right of religious freedom to burden their female employees’ Fourth Amendment right to reproductive freedom.
We can only pray that a majority of the Justices will realize that the alleged infringement on a corporate owner's religious freedom through the purchase of contraceptive coverage in employee group health plans is both far more tenuous and trivial than the very real impingement on a woman's right to control her own reproductive experience, with affordable access to birth control, not subject to anyone else's purported religious agenda whether directly through Congress or indirectly through a self-proclaimed "Christian" fundamentalist cum corporate CEO.