Re: Hobby Lobby

1

Neither this nor the public union ruling, Harris vs. Quinn, was quite as bad as it could have been (presumably bounded by Kennedy in Hobby Lobby and -- kind of shockingly -- Scalia in Harris), but that seems to be the tack taken under the Roberts court: now that this is precendet, the appeals courts will whittle whittle whittle.

And I'm amazed by the willingness in Hobby Lobby to just nakedly state that aims shared by mainstream Republicans are blessed by RFRA while those that are fringy, like not paying for blood transfusions, aren't. Balls and strikes!


Posted by: snarkout | Link to this comment | 06-30-14 8:15 AM
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1.last: "The Constitution is big, it's the Supreme Court that got small."


Posted by: JP Stormcrow | Link to this comment | 06-30-14 8:20 AM
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@1: Right. The little "Of course this decision doesn't apply to medical procedures that might conceivably be needed by men" aside was extra special.

I think I'll just hang out in the nineties thread. Less depressing.


Posted by: AcademicLurker | Link to this comment | 06-30-14 8:24 AM
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1: Right. Both decisions look a lot less bad than they could have been, but boy do they leave a lot of room for lower courts to make mischief.

1.last, 3: they don't actually say that none of this RFRA stuff applies to things like blood transfusions, though that seems to be how it's getting reported. What they say is that they don't see any reason to be concerned with a parade of horribles at this point because nobody pointed to any significant number of employers who have excluded that stuff in the past or who are seeking to do so now. So the door remains wide open, I think.


Posted by: potchkeh | Link to this comment | 06-30-14 8:28 AM
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Isn't it great having a catholic majority on the supreme court?


Posted by: Unfoggetarian: "Pause endlessly, then go in" (9) | Link to this comment | 06-30-14 8:29 AM
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Any corporation that thinks abortion is wrong shouldn't get one.


Posted by: politicalfootball | Link to this comment | 06-30-14 8:37 AM
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Can't we, like, impeach the Supreme Court, or something?


Posted by: essear | Link to this comment | 06-30-14 8:43 AM
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7 - same procedure as for the President. Just need a majority in the House and 2/3 +1 in the Senate. Easy peasy.


Posted by: Tom Scudder | Link to this comment | 06-30-14 8:50 AM
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Let's get started! Who wants to give the Supreme Court a blow job?


Posted by: heebie-geebie | Link to this comment | 06-30-14 8:52 AM
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Let's not forget the unions-gutting case that was also decided today.


Posted by: x.trapnel | Link to this comment | 06-30-14 8:55 AM
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What's the deal with Harris. As a member of a public sector union, I'd like to know.


Posted by: Bostoniangirl | Link to this comment | 06-30-14 9:04 AM
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Ezra seems a little confused as to who has been on the Supreme Court. Wonder if that was a Freudian slip. (Will probably be fixed soon, but check the second last paragraph)


Posted by: dalriata | Link to this comment | 06-30-14 9:06 AM
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Oh, bah, already fixed. "William Rehnquist" was originally "Strom Thurmond."


Posted by: dalriata | Link to this comment | 06-30-14 9:06 AM
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Trying to look this up on the iPhone is such a pain in the ass, and there's no way that I'm using my government work computer to do it.


Posted by: Bostoniangirl | Link to this comment | 06-30-14 9:11 AM
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11: Harris doesn't (strictly speaking) apply to "full-fledged" public-sector unions where the state is the employer--the opinion drew some very strange distinctions based on the fact that the home health-care workers in this case are nominally employed by the individuals they take care of rather than the state. But it sure does call the viability of public-sector unions into question, and I'd expect to see a square challenge work its way up over the next few years


Posted by: potchkeh | Link to this comment | 06-30-14 9:13 AM
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12, 13: He also managed to go 0 for 4 on the Justice's ages.


Posted by: potchkeh | Link to this comment | 06-30-14 9:19 AM
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Basically the future of public sector unions depends on the outcome of the next election and when Scalia dies.


Posted by: Unfoggetarian: "Pause endlessly, then go in" (9) | Link to this comment | 06-30-14 9:25 AM
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Limiting it to home health workers is better than the alternative but fairly incomprehensible to me as a decision. Yes, around here and probably elsewhere the client does choose the provider, supervise them, sign timesheets, and can fire them. But it's still a public job with public payment; I'm not sure how client-centered administration changes things.

Has the Court already decided that states cannot mandate that private employees pay such fees? And if so, what's the First Amendment distinction?


Posted by: Minivet | Link to this comment | 06-30-14 9:29 AM
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and there's no way that I'm using my government work computer to do it

Because you don't use your work computer for other things at all, or because of this particular content?

(I read both decisions on my work computer. Hey, don't forget to vote on the new contract!)


Posted by: Blume | Link to this comment | 06-30-14 9:30 AM
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Limiting it [...] is better than the alternative but fairly incomprehensible to me as a decision.

Sort of the day's theme.


Posted by: Sifu Tweety | Link to this comment | 06-30-14 9:33 AM
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16: What is he, some sort of Wikipedia-looking-up-guy?

(I assume you have those ages on the top of your head due your death pool.)


Posted by: dalriata | Link to this comment | 06-30-14 9:37 AM
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18.1: I haven't read the decision closely, but to me the distinction was pretty much incomprehensible as anything but a means of keeping the decision relatively narrow (and setting up the next round). To go further they'd have had to overrule a prior precedent; this is a more incremental approach I suspect.

18.2: I don't know whether they've spoken to that particular question, but the opinion clearly thinks there should be much greater First Amendment scrutiny in the public-sector context because public employment is inherently tied up with "politics" and thus core First-Amendment values (e.g., Alito thinks that in the public sector it's harder to draw a line between bargaining expenditures--for which you can compel fair-share fees--and political expenditures). But then of course there's also a strong undercurrent of right-wing hysteria at the uncontrolled power of public-sector unions because the people on the other side of the table are playing with tax dollars rather than their own money so you can't expect them to drive a hard bargain. How that is supposed to be a First Amendment issue, I have no idea.


Posted by: potchkeh | Link to this comment | 06-30-14 9:48 AM
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In short, insurers paying for birth control is tyranny but mandatory transvaginal ultrasounds before being permitted to get a legal abortion are uncontroversial common sense.


Posted by: snarkout | Link to this comment | 06-30-14 9:50 AM
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I don't even want to glance at the front page of the Times right now. These 5 assholes.


Posted by: JRoth | Link to this comment | 06-30-14 9:59 AM
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4: Brushing aside the parade of horrible is especially rich, coming as it does from the high church of the broccoli mandate and "BUT WHAT'S THE LIMITING PRINCIPLE?"


Posted by: salacious | Link to this comment | 06-30-14 10:01 AM
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The statute needs to be amended or repealed. Won't happen right away, but it's going to come, especially if the thing gets expanded much.


Posted by: CharleyCarp | Link to this comment | 06-30-14 10:08 AM
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19: I don't use my shares work for anything the least bit personal, or non-work related. We are not getting our own computers until the fall. We are supermicromanaged here.

The K looks good to me. Yay, raise. I'm a little confused about the changes to intermittent FMLA.


Posted by: Bostoniangirl | Link to this comment | 06-30-14 10:14 AM
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Don't be fooled by the "limited to the present situation" rulings. The obvious counter example is the same sex mariage decision at this time last year. The Supreme Court expressly did not find a constitutional right to same sex marriages, and the ruling formally only affected California. But all of the lower courts that have looked at the issue since then found in favor of same sex marriages. They can take a hint. The next cases on public employees' unionization rights will also take the hint.

I suspect that Hobby Lobby won't have much wider effect, because there won't be very many substantial employers who want religious exemptions, and even fewer concerned about anything other that the right to control employees' fucking..


Posted by: unimaginative | Link to this comment | 06-30-14 10:15 AM
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With HL I wonder about the impact on the various efforts (e.g. in Arizona earlier this year) to make religious freedom a cover for discrimination against gay people. Justice Alito's treatment of the point about discrimination laws -- saying that there is a compelling state interest and that laws prohibiting discrimination are narrowly tailored -- would seem to kill all that kind of thing all the way dead.

Maybe that concession was needed to get Justice Kennedy's vote.


Posted by: CharleyCarp | Link to this comment | 06-30-14 10:21 AM
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29: But what Scalia wrote is "The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are narrowly tailored to achieve that critical goal." Can we rely on the crazification factor (in this case 55.6%) to treat LGBT identically to race if the issue comes up?


Posted by: Minivet | Link to this comment | 06-30-14 10:30 AM
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30 -- Well, yeah, crazy people will try and try, but the courts are going to hang their hats on this.


Posted by: CharleyCarp | Link to this comment | 06-30-14 10:45 AM
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The next cases on public employees' unionization rights will also take the hint.

I think that's very unlikely--they went out of their way not to overrule Abood, and even the most mendacious lower court isn't likely to just go ahead and flatly ignore it no matter how endangered it thinks that precedent is at this point. Of course the Supreme Court might well overrule it when they get a case they can't distinguish the way they did this one.

30 is exactly right (except Alito, not Scalia)--he specifically confined the discussion to racial discrimination laws and I would not be at all surprised if the wingnuttier lower courts read that as leaving the door wide open on other forms. Maybe the Supremes will eventually shut it, but maybe they won't.


Posted by: potchkeh | Link to this comment | 06-30-14 10:48 AM
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32.2 -- I think the gay marriage decision trend is showing that most courts aren't interested in going full wingnut on gays any more.

The Fifth Circuit may well prove me wrong on that . . .


Posted by: CharleyCarp | Link to this comment | 06-30-14 10:53 AM
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I mean, you can literally see the goalposts moving:

The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.

Posted by: potchkeh | Link to this comment | 06-30-14 10:55 AM
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Right, but when you look at what the dissent was arguing, you see that race is but one criterion, and not distinguished. You're proposing a quite disingenuous reading -- which I do not put past Justice Alito, but doubt would have gotten the vote of Justice Kennedy.

I don't doubt that people will try for this. I do not think that it'll get much if any traction anywhere that orientation is a protected category.


Posted by: CharleyCarp | Link to this comment | 06-30-14 11:03 AM
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Agree with 32 -- Harris isn't an invitation to the lower courts to ignore Abood, although Part II is conspicuously laying the groundwork for the Supreme Court itself to overrule Abood in some future case, and could certainly be read as an invitation to the (conservative side of the) bar to find a good vehicle for doing so. It does also signal that pretty much any colorable factual distinction with Abood will be accepted as a basis for limiting Abood's holding. I don't know this area well enough to come up with specifics, but I suspect that there will be other fact patterns where some of the lower courts will take the majority up on that.


Posted by: widget | Link to this comment | 06-30-14 11:06 AM
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No time to comment or read the thread, and I've barely skimmed the opinions, but the government deeply screwed up the Hobby Lobby litigation by emphasizing the "persons" RFRA issue instead of the substantial burden issue which should have been a stone cold winner (the ACA doesn't actually force private employers to provide contraceptive coverage), and it's the Court's screwing around on that issue (have only had time to skim) that ultimately will be more problematic than the ruling on the definition of "person" in RFRA.

And at the end of the day Harris I think will be by far the more significant case.


Posted by: Robert Halford | Link to this comment | 06-30-14 11:10 AM
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35: Of course it's disingenuous--there's no other reason for Alito to have phrased it the way he did and I don't believe for a second that it wasn't intentional. I hope you're right that the evil lower courts won't take up what I see as an cute invitation to be disingenuous too. (I do think that, if that happens, there's a decent chance the Supreme Court will eventually have to stop playing games and squarely shut it down, because Kennedy.)

On preview, 37 is right. I can't figure out why the gov't didn't argue that the "mandate" isn't really a mandate. Although Alito does say they wouldn't have bought it even if they had made the argument so maybe it was harmless error.


Posted by: potchkeh | Link to this comment | 06-30-14 11:12 AM
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Gotta love how corporations are RFRA persons and prisoners at Guantanamo Bay are not.


Posted by: CharleyCarp | Link to this comment | 06-30-14 11:14 AM
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Ginsburg is good in dissent. It's a shame she has to do it so often, but she's very good at it. I don't think there's anyone on the current Court who can match her. People talk about Roberts and Kagan as the best writers on the current Court, but you always get the sense with them that they know how good they are at playing the game (and they are in fact very good, of course). I never get that feeling with Ginsburg.


Posted by: widget | Link to this comment | 06-30-14 11:22 AM
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I just got my first Dem Senate candidate fight back against HL fund raising email.

Just think how long it would have taken in the 90s.


Posted by: CharleyCarp | Link to this comment | 06-30-14 11:32 AM
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Truly, this is the age of wonders.


Posted by: JRoth | Link to this comment | 06-30-14 12:25 PM
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40 -- really? I like Ginsburg, but her Hobby Lobby dissent seems at a first glance to commit the cardinal sin of dissents, which is to substantially overstate the majority holding for rhetorical effect in a way that makes it more likely that a bad opinion will be interpreted broadly to produce bad consequences. Still haven't had time to read the opinions or dissents as closely as I should, but that's a strong first impression.


Posted by: Robert Halford | Link to this comment | 06-30-14 1:41 PM
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43: My read on her dissent is that she's calling bullshit on the majority opinion's claims of limited effect. We can't know whether, in the absence of such a dissent, lower courts would limit themselves to the majority's alleged modesty, or take the ball and run. We'll see whether, in the event, RBG ends up getting cited by a lot of courts promoting findings she wouldn't support (as has happened, rather famously, to Scalia's anti-gay marriage dissent).


Posted by: JRoth | Link to this comment | 06-30-14 1:44 PM
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And the government was so fucking stupid to argue the case this way. Are there instances in which a for profit corporation should be able to state a claim under RFRA as a "person"? I'd say probably, or at least it's a tough question. Was this a substantial burden of religion under any pre-Smith standard previously articulated by the Supreme Court? No fucking way and it's not even close. Whoever managed this thing at the SG's office or whatever should be fired immediately.


Posted by: Robert Halford | Link to this comment | 06-30-14 1:46 PM
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Are there instances in which a for profit corporation should be able to state a claim under RFRA as a "person"? I'd say probably, or at least it's a tough question.

Seriously? "When someone wants me to pay the debts of this artificial legal construct, it's completely separate from me. On the other hand, when it's legally obliged to act in a way I religiously object to, we're the same person."


Posted by: LizardBreath | Link to this comment | 06-30-14 1:49 PM
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I mean, it's also not a substantial burden. But the legal person that's subject to the contraception mandate isn't a person that has religious beliefs.


Posted by: LizardBreath | Link to this comment | 06-30-14 1:51 PM
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So is this issue adverted to in 46 addressed in the opinions? Like, how do corporations have religious beliefs at all? Surely that's explained somewhere?


Posted by: nosflow | Link to this comment | 06-30-14 1:54 PM
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It's a question of congressional intent, and there could certainly be hypothetical cases where you could reasonably see RFRA applying to a for-profit corporation -- say, a claim by the press that prints books for the Seventh Day Adventist church against a law requiring that they have to stay open on Saturdays without good reason, or a claim against a law requiring an Amish-run shop to use mechanized tools, or whatever; these kinds of practices are reasonably in the realm of what Congress was trying to protect with RFRA and I think the Court is right that RFRA indisputably has to apply to non-profit corporations and that means that there are almost certainly instances where it should apply to for-profit corporations. The real question is whether something like the ACA (which didn't require employers to provide contraceptive coverage, and at most created an incentive for an employer to allow its employees to make an individual choice to buy contraception) and the answer to the question is no. The government chose to (primarily) fight the harder question and one where they could have reasonably expected to lose, and they lost.


Posted by: Robert Halford | Link to this comment | 06-30-14 1:56 PM
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Here:

As we will show, Congress provided protection for people like the Hahns and Greens by employing a familiar legal fiction: It included corporations within RFRA's definition of "persons." But it is important to keep in mind that the purpose of this fiction is to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people. For example, extending Fourth Amendment protection to corporations protects the privacy interests of employees and others associated with the company. Protecting corporations from government seizure of their property without just compensation protects all those who have a stake in the corporations' financial well-being. And protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies.

Fascinatingly, this places no clear limit on who the natural persons with religious beliefs have to be in relation to the corporation, in order for the corporation to assert religious claims. Owners, employees, 'others' associated with the company.


Posted by: LizardBreath | Link to this comment | 06-30-14 2:06 PM
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I just saw that quoted on facebook and I don't really see how it actually addresses the issue. Why stop at extending certain rights to corporations, thereby protecting the rights of the humans who run them [1]? Why not also note that the corporation has certain debts or other obligations, and extend those to the natural persons running the show? After all, the corporation is just an form of organization used by humans! Same reasoning applies, doesn't it?


[1] note the assumption that the human who runs it actually does have the right in question, which seems very strange to me, since we're essentially talking about something that a corporation is going to do, right? and even if it also pertains to individual natural persons, has it been established in that case?


Posted by: nosflow | Link to this comment | 06-30-14 2:09 PM
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Halford is completely right that it's also not a substantial burden on anyone's religious rights -- the same case should have gone the other way even if Hobby Lobby were a sole proprietorship. But I get really ticked off at people using the corporate form inconsistently as both a sword and a shield.


Posted by: LizardBreath | Link to this comment | 06-30-14 2:09 PM
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52 crossed with 51, but yes, that's exactly the issue that ticks me off.


Posted by: LizardBreath | Link to this comment | 06-30-14 2:10 PM
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Presumably someone authorized to assert the constitutional protection on behalf of the corporation (whether for profit or nonprofit) can do so. For example, it's pretty hard to assert that Congress didn't intend under RFRA to extend a claim to, for example, Catholic Charities, Inc. as an institution, and once you've conceded that there are almost good RFRA claims by more directly for-profit institutions as well. The question is was this a good claim or not, which requires looking at whether or not there was a substantial burden of religion under the Court's pre-Smith precedent.


Posted by: Robert Halford | Link to this comment | 06-30-14 2:14 PM
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For example, it's pretty hard to assert that Congress didn't intend under RFRA to extend a claim to, for example, Catholic Charities, Inc. as an institution, and once you've conceded that there are almost good RFRA claims by more directly for-profit institutions as well

Something went weird with your sentence structure here, so I'm not dead sure what you're saying, but there's a perfectly clear distinction between a religious nonprofit (which was explicitly created to express specific religious beliefs) and a for-profit corporation. That's not a muddy line at all.


Posted by: LizardBreath | Link to this comment | 06-30-14 2:17 PM
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But I continue to agree with you that we should also have won the case on the other grounds, that it wasn't a substantial burden.


Posted by: LizardBreath | Link to this comment | 06-30-14 2:18 PM
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once you've conceded that there are almost good RFRA claims by more directly for-profit institutions as well

Examples, please? The ones in 49 refer to laughably implausible laws (a law requiring furniture makers to use power tools?).


Posted by: JRoth | Link to this comment | 06-30-14 2:19 PM
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There might be safety regulations that assume electricity is being used, couldn't there?


Posted by: Cryptic ned | Link to this comment | 06-30-14 2:20 PM
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IANAL (and based on my reading of things during the ACA trial, Don Verrilli isn't very good at oral argument) but the "substantial burden" stuff was addressed during before the Supremes, and Paul Clement delivered a wave of bullshit that the court seems to have accepted.


Posted by: snarkout | Link to this comment | 06-30-14 2:23 PM
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(If my reading there is right, the very fact that religious entities can opt out was used by Clement to argue that the government doesn't really have a compelling interest in making insurance plans cover contraception.)


Posted by: snarkout | Link to this comment | 06-30-14 2:25 PM
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43: Well, she probably should have left out her footnote 19 and the accompanying text (where she questions whether the Court's rationale can be limited to closely held corporations). As far as the less-restrictive-alternative test combined with the "let the government pay" alternative, I'm not sure I see any way in which she's broadening the majority's holding.


Posted by: widget | Link to this comment | 06-30-14 2:26 PM
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Most churches and synagogues and mosques and related institutional religious activity, for example, are established in under state law in the form of nonprofit corporations. Many religions also have clearly affiliated organizations (for example, Catholic Charities, Inc, or hospitals) that are clearly religiously affiliated and nonprofits but that are not formally church or religious organizations. It would be almost unthinkable for RFRA not to apply to them in their institutional form at all. And, there are nominally for-profit institutions where the same concerns could apply; the beer making operations of a sect of monks, Amish run companies, and maybe even personally-owned companies where the owners have strong religious beliefs with which they expressly run the business (Black Muslim shops, for example). Again, this shouldn't mean that any such group GETS TO BREAK ALL LAWS but it's certainly reasonable to think that Congress intended RFRA to apply to them, particularly since all the law did was to reinstitute the "substantial burden" test. You might not like the substantial burden test or the fact that Congress was trying to give special protections to religious groups and organizations, but it clearly was trying to do so. Was it trying to protect against things like the application of the ACA here? IMO obviously not.


Posted by: Robert Halford | Link to this comment | 06-30-14 2:29 PM
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57: The sympathetic story in the opinion is a prior case brought by Orthodox Jewish merchants who wanted to open on Sundays despite a blue law, because they couldn't open Saturdays religiously and closing Sunday as well would be a burden. If we agree that's a valid claim, then why shouldn't it be a valid claim if they incorporate?


Posted by: LizardBreath | Link to this comment | 06-30-14 2:29 PM
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And, there are nominally for-profit institutions where the same concerns could apply; the beer making operations of a sect of monks, Amish run companies, and maybe even personally-owned companies where the owners have strong religious beliefs with which they expressly run the business (Black Muslim shops, for example).

I can't go along with you in regarding a corporation as 'nominally' for-profit. Either it's a tool for creating profits for natural-person owners while sheltering them from liability for its actions or it isn't.


Posted by: LizardBreath | Link to this comment | 06-30-14 2:38 PM
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62: I get why non-profits are exempted by RFRA; I'm having trouble making the leap to for-profit. Even in the example in 63, ISTM that, once you've incorporated, then hiring some goyim to run the shop on Saturdays is not a burdensome tradeoff.

The whole point here is that incorporating as a for-profit isn't - or shouldn't be - a freebie. Being religious in a secular society involves tradeoffs, and maybe one of them is that you can't maximize profit without bending some of your beliefs.


Posted by: JRoth | Link to this comment | 06-30-14 2:38 PM
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64, 65 - but it's a statutory word, "person," that the Court is asked to interpret, and that word is "persons." Congress could have said that RFRA only applied to non-profit corporations, but I didn't. Nonprofit corporations are creations of the tax code and are a tax designation anyway, not generally a formally separate kind of "corporation"'for these purposes. I agree that an actual church and a religiously-affiliated for profit corporation are different and that therefore the substantial burden test can and should apply to them in different ways, but that's a different question than whether or not Congress's use of the word "person" in RFRA was meant to encompass corporations at all under any set of circumstances.


Posted by: Robert Halford | Link to this comment | 06-30-14 2:49 PM
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The Orthodox Jew case is funny. It's sympathetic at first blush, but to the extent it's sympathetic, it seems like more an Establishment Clause claim (that is, that it's improper state Christianity to have a Sunday closing law at all) than a RFRA claim. That is, there's no religious problem for a Jew to close on Sunday; he can obey the law without a qualm. The claim is that it's unfair for Orthodox Jews to have to run a business that can open only 5 days a week, while everyone else (barring their own individual circumstances) can run a business that can open 6 days a week.

When you think about it, though, the unfairness would still be there in without a Sunday closing law at all -- atheists and most Christians could open 7 days a week, and Orthodox Jews only 6.


Posted by: LizardBreath | Link to this comment | 06-30-14 2:51 PM
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Oh, just ignore that construction of the first sentence. I need to stop commenting here anyway.

To 61 I think this is an opinion which a liberal court so inclined could pretty easily limit to its facts (especially the specific Congressional exception for religious nonprofits), and the RBG dissent is not providing much ammunition for the forces of good there.


Posted by: Robert Halford | Link to this comment | 06-30-14 2:52 PM
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66: Fair enough. As has been noted, what can, should, and maybe will happen is that the next time Dems control Congress the RFRA will be rewritten. Whether it hinges on for-profit or on some other relevant distinction, there are certainly ways to close this loophole.


Posted by: JRoth | Link to this comment | 06-30-14 2:53 PM
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66: The point is that Hobby Lobby is a 'person'. But it's not a 'person' that has religious beliefs, observances, or obligations, it's an immortal sociopath (a religious nonprofit, on the other hand, does have something in the nature of religious obligations written into its foundational documents). If Hobby Lobby's owners want to say that requirements imposed on Hobby Lobby violate their religious beliefs, the answer that makes sense to me is that the government isn't requiring the natural persons to do anything, it's only burdening the irreligious immortal sociopath.


Posted by: LizardBreath | Link to this comment | 06-30-14 2:54 PM
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Here's what I don't get: so what if Hobby Lobby Corporation has beliefs. Once you pay your employees, you don't get to control how they spend their money. Hobby Lobby isn't purchasing birth control bills. They're sending money on a monthly basis to an insurance company, regardless of how much sex their dirty slut employees have.

I mean, that argument applies to non-profits as well. But I get there that it was politically expedient to all pretend it was a valid point.


Posted by: heebie-geebie | Link to this comment | 06-30-14 3:00 PM
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That's Halford's argument, and it should also win: that the contraception mandate isn't a burden on anyone's religious beliefs. I didn't stay on top of the briefing, so I'm not personally clear on how culpable the gov't is for not strongly arguing that point. The holding of the majority is basically that if you claim it's a substantial burden, it is, because questioning that claim would mean questioning your religious beliefs:

This argument dodges the question that RFRA presents (whether the HHS mandate imposes a substantial burden on the ability of the objecting parties to conduct business in accordance with their religious beliefs) and instead addresses a very different question that the federal courts have no business addressing (whether the religious belief asserted in a RFRA case is reasonable). The Hahns and Greens believe that providing the coverage demanded by the HHS regulations is connected to the destruction of an embryo in a way that is sufficient to make it immoral for them to provide the coverage. This belief implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.

Arrogating the authority to provide a binding national answer to this religious and philosophical question, HHS and the principal dissent in effect tell the plaintiffs that their beliefs are flawed. For good reason, we have repeatedly refused to take such a step. See, e.g., Smith, 494 U. S., at 887 ("Repeatedly and in many different contexts, we have warned that courts must not presume to determine . . . the plausibility of a religious claim")

(Don't trust the above quote perfectly -- I had to mess with the formatting cutting and pasting out of a pdf, and might have introduced errors.)


Posted by: LizardBreath | Link to this comment | 06-30-14 3:12 PM
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And of course that holding won't stand up in other cases -- if it did, as I just saw someone say on FB, all the Quakers could pro-rate their taxes to stop paying for the defense budget.


Posted by: LizardBreath | Link to this comment | 06-30-14 3:17 PM
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Substance use disorder treatment is now mandated as an essential benefit under the ACA as well as the parity law. I could see some employer objecting to that.


Posted by: Minivet | Link to this comment | 06-30-14 3:17 PM
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It doesn't seem impossible, but what actual religion are you thinking of?


Posted by: LizardBreath | Link to this comment | 06-30-14 3:19 PM
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Straight edge.


Posted by: JRoth | Link to this comment | 06-30-14 3:22 PM
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Eh, Mormons?


Posted by: Turgid Jacobian | Link to this comment | 06-30-14 3:23 PM
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There are at least two "substantial burden" arguments here. The better one, which the government didn't make at all, though it was raised by amici, is that the ACA doesn't require employers to provide contraceptive coverage, or employee health care at all -- the only requirement is that IF an employer provides health insurance and doesn't have its employees go on the exchanges, that insurance plan must contain contraceptive coverage. If an employer doesn't provide health insurance, the employer pays a tax that partially (but not completely) compensates for subsidies on the exchange. That tax is generally less than, or at least roughly equal to, the cost of providing employee health insurance. Making a decision to provide employee insurance in this situation is clearly not a "substantial" burden on religion under any preexisting precedent. Rather, it is a situation in which there are arguably some costs and some benefits to having the corporation decide to provide employee insurance, when it had a reasonable choice not to that wouldn't have burdened its exercise of religion meaningfully at all. The government for some reason didn't make this argument. It was a huge failure not to build a substantial record on that point. It's pretty inexplicable. The opinion does treat the argument briefly (because some amicii raised it) but the Court ruled without the benefit of the record on the issue that should have made that decisive.

The second "substantial burden" argument is roughly the one Heebie makes in 71. I think that's a very good argument; the government did make it (though not as their lead argument, the Feds focused on "not a person") but the Court rejected it, on the basis of IMO no controlling precedent at all, though in ways which could be (but probably won't be) limited to these facts.


Posted by: Robert Halford | Link to this comment | 06-30-14 3:34 PM
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The church of mandatory abusing of substances.


Posted by: Moby Hick | Link to this comment | 06-30-14 3:38 PM
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That's probably the most likely, but it's not like it has to be closely justified in religious text and tradition - they basically can just say it violates their beliefs as long as it's not facially ridiculous, right?


Posted by: Minivet | Link to this comment | 06-30-14 3:38 PM
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Scientologists would object to most mental-health coverage if it might lead to prescriptions for psychoactive drugs, right?

Mormons wouldn't have a religious objection to treating addiction.


Posted by: Bave | Link to this comment | 06-30-14 3:39 PM
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78.1: IIRC, the lightness of the "burden" on HL if they chose not to provide health insurance did come up in some context during oral arguments, but was gruffly dismissed by Scalia on grounds that it would be a competitive disadvantage in attracting employees. (But it seemed to be just in passing--maybe a prompt from one of the commie sluts on the court. Or maybe I dreamt the whole thing.)


Posted by: JP Stormcrow | Link to this comment | 06-30-14 3:41 PM
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I'm having dinner at Midway (hello four hour delay) and the utensils are wrapped in what seems to be extremely shitty latex, like an unethical abortion clinic might use to make condoms to pass out as a business boost.


Posted by: Moby Hick | Link to this comment | 06-30-14 3:42 PM
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82 -- it was discussed in something like those terms at oral argument, but only bc the Court was asking the lawyers about an issue raised in the amici briefs.


Posted by: RH | Link to this comment | 06-30-14 3:43 PM
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73: Sure it would. A court could hold that the Quakers' exercise is substantially burdened, but also hold that uniform taxation is a compelling government interest and (trivially) that a uniform tax scheme is narrowly tailored to that end. That's pretty much U.S. v. Lee (in a pre-Smith free exercise context rather than RFRA).


Posted by: potchkeh | Link to this comment | 06-30-14 3:47 PM
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83:


My grandpa made cheap prophylactics
He poked every one with a pin
My grandma did backroom abortions
My God, how the money rolled in


Posted by: clew | Link to this comment | 06-30-14 3:47 PM
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81: You don't get addicted without sin. Providing a safety net just makes people more likely to indulge. That's just like condoning that sin. Ouch! My beliefs--get me sommmathat wingnut welfare!


Posted by: Turgid Jacobian | Link to this comment | 06-30-14 4:01 PM
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Speaking of making it easier, you can carry open drinks around Midway. Also, gate A4 is so far out of the loop that I walked past some guy's house on the way here. I'm not even joking. Looking out the windows, I could see I passed it.


Posted by: Moby Hick | Link to this comment | 06-30-14 4:09 PM
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I'm not drunk enough to see ifi can turn off CNN before they can explain what Obama wrong with Obamacare.


Posted by: Moby Hick | Link to this comment | 06-30-14 4:11 PM
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Let's see if we can goad drunk Moby into activating the inflatable slides on the plane he boards.


Posted by: Robert Halford | Link to this comment | 06-30-14 4:26 PM
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Let's see if you can goad whoever is in charge of the planes into putting one at the gate.


Posted by: Moby Hick | Link to this comment | 06-30-14 4:29 PM
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Some guy just left me to watch his laptop and bag. Is he a terrorist or an I really trust worthy looking? I don't even remember what he looks like except that he was a chunky white-guy in baggy shorts. That's like a quarter of the airport.


Posted by: Moby Hick | Link to this comment | 06-30-14 4:39 PM
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are you certain, mobes?


Posted by: alameida | Link to this comment | 06-30-14 4:40 PM
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93 to 89


Posted by: alameida | Link to this comment | 06-30-14 4:41 PM
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Oh man, I think I flew out of A4 the last time I was there. It's at the end of, or just off of, a narrow corridor, past a sad little snack shop?


Posted by: ogged | Link to this comment | 06-30-14 4:42 PM
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A sad little snack shop that sells liquor and beer, but that's it.


Posted by: Moby Hick | Link to this comment | 06-30-14 4:44 PM
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93: I have three hours and money, so we'll see.


Posted by: Moby Hick | Link to this comment | 06-30-14 4:46 PM
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Radar says you're definitely in for a wait. We're getting some very impressive thunder.


Posted by: ogged | Link to this comment | 06-30-14 4:48 PM
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You better run, you better take cover.


Posted by: Moby Hick | Link to this comment | 06-30-14 4:53 PM
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I think this means Moby's about to chunder.


Posted by: Sifu Tweety | Link to this comment | 06-30-14 5:02 PM
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Not at these prices. But I might go to Nuts on Clark and ask why Clark likes a teabagging.


Posted by: Moby Hick | Link to this comment | 06-30-14 5:18 PM
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Or buy the latest Terry Goodkind book so I can wonder how libertarians have enough sex to reproduce themselves.


Posted by: Moby Hick | Link to this comment | 06-30-14 5:24 PM
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Anyway, it's really raining very hard in Chicago.


Posted by: Moby Hick | Link to this comment | 06-30-14 5:26 PM
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Probably ogged should come keep you company.


Posted by: Sifu Tweety | Link to this comment | 06-30-14 5:29 PM
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92: Write a woman's name and a phone number on a napkin, and slip it into that guy's bag.


Posted by: torrey pine | Link to this comment | 06-30-14 5:30 PM
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"Jenny, 867-5309"


Posted by: Moby Hick | Link to this comment | 06-30-14 5:41 PM
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or write a man's name


Posted by: Turgid Jacobian | Link to this comment | 06-30-14 5:42 PM
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"John Roberts, 1-800-BLO-JOBS"


Posted by: Moby Hick | Link to this comment | 06-30-14 5:44 PM
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101 -- Countdown to pantsdown.


Posted by: Robert Halford | Link to this comment | 06-30-14 5:45 PM
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I think the Supreme Court majority just wants to side with bosses over workers on this health insurance thing. They seem embarrassed that it's phrased as a religious argument, surprising everyone with the wacky "This ruling applies only to erroneous beliefs about contraception, not any other erroneous medical religious beliefs" clause.


Posted by: Cryptic ned | Link to this comment | 06-30-14 6:03 PM
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I hope ogged didn't blow away or lose power or something.


Posted by: Moby Hick | Link to this comment | 06-30-14 6:24 PM
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I lived through kiddie bedtime, and the rain has mostly let up.


Posted by: ogged | Link to this comment | 06-30-14 6:35 PM
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how libertarians have enough sex to reproduce themselves

That's what Econ 101 is for.


Posted by: Kreskin | Link to this comment | 06-30-14 6:36 PM
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113: so not like zombieism or being uruguayan?


Posted by: Turgid Jacobian | Link to this comment | 06-30-14 6:44 PM
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The rain has let up but I'll be lucky to leave here in an hour.


Posted by: Moby Hick | Link to this comment | 06-30-14 6:47 PM
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There are more storms to the west, though it's not clear if they're going to go through Chicago. Which direction are you flying?


Posted by: ogged | Link to this comment | 06-30-14 6:54 PM
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Up first, then east.


Posted by: Moby Hick | Link to this comment | 06-30-14 7:01 PM
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Maybe you'll luck out and get a pilot who doesn't care if he or his passengers survive.


Posted by: ogged | Link to this comment | 06-30-14 7:03 PM
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The gate agent says the plane I'm going out on will land in five minutes. She looks honest and I asked her twice.


Posted by: Moby Hick | Link to this comment | 06-30-14 7:04 PM
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118: US Air doesn't even serve Midway.


Posted by: Moby Hick | Link to this comment | 06-30-14 7:05 PM
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There's a plane at the gate now.


Posted by: Moby Hick | Link to this comment | 06-30-14 7:09 PM
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Midway makes me nostalgic for college.


Posted by: essear | Link to this comment | 06-30-14 7:17 PM
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Can you see if there are any creatures on the wings?


Posted by: JRoth | Link to this comment | 06-30-14 7:17 PM
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And the next leg of the storm is rolling through now. If you get out tonight, I'm going to be very impressed with modern aviation.


Posted by: ogged | Link to this comment | 06-30-14 7:18 PM
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The near side is safe.


Posted by: Moby Hick | Link to this comment | 06-30-14 7:18 PM
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122: Your college was on an aircraft carrier?


Posted by: Moby Hick | Link to this comment | 06-30-14 7:20 PM
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125 to 123.


Posted by: Moby Hick | Link to this comment | 06-30-14 7:21 PM
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Midway is the airport where fun goes to die.


Posted by: Kreskin | Link to this comment | 06-30-14 7:21 PM
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Being awake at 4 AM makes me... not nostalgic, exactly, but also remember college. At least I don't really have to do anything tomorrow.

If your trip is going to be canceled you could take the Orange Line into town and find a better bar. Oh, I know: go all the way up to the Violet Hour and try to get them to make you the world's fanciest artisanal Rusty Nail.


Posted by: essear | Link to this comment | 06-30-14 7:21 PM
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Up first

You're taking a helicopter?


Posted by: teofilo | Link to this comment | 06-30-14 7:21 PM
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Midway is terrible. I do hope you make it out before the next wave of storms roll in, MH. I was in a similar situation last weekend, and I was really happy the crew was based in the destination city - good, we all have a strong preference for getting there!


Posted by: ydnew | Link to this comment | 06-30-14 7:27 PM
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Midway is better than O'hare, which is my most likely other choice for a connection.


Posted by: Moby Hick | Link to this comment | 06-30-14 7:28 PM
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Ugh, condolences. I was stuck in O'Hare similarly a couple of weeks ago. No fun.


Posted by: redfoxtailshrub | Link to this comment | 06-30-14 7:30 PM
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Ha.


Posted by: redfoxtailshrub | Link to this comment | 06-30-14 7:30 PM
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Midway has changed. I've had longer walks there recently than at O'Hare. And Midway doesn't have much charm.

Albuquerque. Now there's a perfect little airport. But probably not of much use to you at the moment.


Posted by: ogged | Link to this comment | 06-30-14 7:31 PM
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No, wait, a couple of weeks ago it was Midway. The trip before that it was O'Hare. What's your problem, Chicago?!


Posted by: redfoxtailshrub | Link to this comment | 06-30-14 7:31 PM
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It's not really a problem as I'm traveling alone and without a checked bag.


Posted by: Moby Hick | Link to this comment | 06-30-14 7:31 PM
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But, a maintainance issue now.


Posted by: Moby Hick | Link to this comment | 06-30-14 7:34 PM
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But, a maintainance issue now.


Posted by: Moby Hick | Link to this comment | 06-30-14 7:36 PM
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You're doomed. Looking at radar.


Posted by: JP Stormcrow | Link to this comment | 06-30-14 7:49 PM
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I just sprinted from A4 to B21 to get on a different flight to Pittsburgh that only had 30 passengers. I call bullshit on the maintenance issue.


Posted by: Moby Hick | Link to this comment | 06-30-14 7:53 PM
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For those betting on Moby's chances. Radar.


Posted by: JP Stormcrow | Link to this comment | 06-30-14 7:56 PM
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I'm with ogged in 124.


Posted by: JP Stormcrow | Link to this comment | 06-30-14 7:57 PM
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Radar don't lie; we've now entered the sheets of rain portion of the evening's entertainment, and the lightning is nearly constant.


Posted by: ogged | Link to this comment | 06-30-14 8:06 PM
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But we haven't heard from Moby. Maybe they really are going to leave. If Midway is anything like it is where I am, wow.


Posted by: ogged | Link to this comment | 06-30-14 8:08 PM
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Here's a U of C webcam where right now the lightning looks like it does here.


Posted by: ogged | Link to this comment | 06-30-14 8:09 PM
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They just pulled us off the plane because it wasn't safe to wait on it.


Posted by: Moby Hick | Link to this comment | 06-30-14 8:25 PM
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And my ceiling just started leaking.


Posted by: ogged | Link to this comment | 06-30-14 8:28 PM
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It's not supposed to do that.


Posted by: Moby Hick | Link to this comment | 06-30-14 8:29 PM
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I should have a talk with it, but I think I'll just go to bed. Good luck!


Posted by: ogged | Link to this comment | 06-30-14 8:34 PM
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Thanks. You also.


Posted by: Moby Hick | Link to this comment | 06-30-14 8:39 PM
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We've just been cleared to check the flashing on ogged's roof


Posted by: Moby Hick | Link to this comment | 06-30-14 8:56 PM
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Made it.


Posted by: Moby Hick | Link to this comment | 06-30-14 11:05 PM
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Modern aviation: seriously impressive.


Posted by: teofilo | Link to this comment | 06-30-14 11:10 PM
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The little boy next to me said, "I don't want lightening to hit the plane and knock us out of the sky."


Posted by: Moby Hick | Link to this comment | 06-30-14 11:14 PM
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63: My Dad said that when he was a kid in Buffalo, stores owned by Jews were able to open on Sunday despite the existence of blue laws, because they observed a Sabbath on Saturdays. That certainly privileges the religious over atheists, but nobody was forced to be open fewer days than anyone else.


Posted by: Bostoniangirl | Link to this comment | 07- 1-14 3:52 AM
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155: And so you explained Faraday cages to him?


Posted by: JRoth | Link to this comment | 07- 1-14 5:12 AM
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And how they don't work work if you keep turning around and taunting your little sister behind us until she screams.


Posted by: Moby Hick | Link to this comment | 07- 1-14 5:54 AM
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Halford is right about the government's arguments in this case. Completely inexplicable when evaluated on their own terms. Understandable only if you think the gov't was trying to throw the case in order to boost Dem. prospects in the midterms. (Which it will probably successfully do.) That seems far-fetched, but it's more plausible than any other explanation.


Posted by: urple | Link to this comment | 07- 1-14 6:45 AM
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153: Yeah, the last line ended up moving more NW->SE and therefor cleared the area somewhat quickly. Earlier it looked like they might continue to "train" across that area. But still probably lucky to have made it out.


Posted by: JP Stormcrow | Link to this comment | 07- 1-14 6:50 AM
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We didn't get any beverage cart service and there was a bunch of lightening around us.


Posted by: Moby Hick | Link to this comment | 07- 1-14 6:56 AM
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159: Hasn't there been a lot of dismay from supporters of the admin wrt the choices of both argument and arguer? People seem to be reallly down on Verilli, frex.


Posted by: Annelid Gustator | Link to this comment | 07- 1-14 6:58 AM
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Nobody correct Moby's spelling. He's been through a lot.


Posted by: Sifu Tweety | Link to this comment | 07- 1-14 7:03 AM
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Bevarage cert.


Posted by: Moby Hick | Link to this comment | 07- 1-14 7:05 AM
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67 - not so much being open 5 days instead of 6, as being open 0 days instead of 1 during the 2 days a week when most of your customers have the day off.


Posted by: Tom Scudder | Link to this comment | 07- 1-14 7:13 AM
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Do you really think that anything SG said, or that anyone else could have said, would have changed the result here?

It seems to me that there are a solid four votes for allowing a sort of corporate Hyde Amendment -- if the owners don't want to pay for abortion (whatever the science says about the items in issue) they don't have to. The question was whether someone could write in enough hedging language to get that fifth vote, and the answer, as we see, is yes.

A person could go mad trying to read the mind of Justice Kennedy, I know, but I'd guess that what he was really doing was weighing the gov't mandate vs. the alternatives with a kind of Casey undue burden analysis in mind.


Posted by: CharleyCarp | Link to this comment | 07- 1-14 7:14 AM
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159: I've been barraged with emails begging for money and citing the case as a reason. If they are even slightly successful in getting money out of people like me it will be a big win for Democratic fundraising.


Posted by: togolosh | Link to this comment | 07- 1-14 7:14 AM
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166.last - The description of Kennedy someone threw out on LGM, "a man who can't see a baby, just two half-babies", both made me laugh and struck me as correct.


Posted by: snarkout | Link to this comment | 07- 1-14 7:16 AM
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159, 162: Is this yet more evidence that Obama (and his people) are kind of shitty at selecting personnel? As Atrios says, the promise of technocratic leadership is actual competence at running the bureaucracy, and I haven't seen much evidence that Obama's people do much more than clear the incredibly low bar set by their immediate predecessors.

Someone's going to ask me to name examples, and frankly I don't have many to hand. But this isn't the first time the SG has been accused of running a shitty case before SCOTUS, the VA thing, while overblown, surely should have been caught sooner, the ACA website rollout was obviously a clusterfuck, the whole debacle around failing to pack the courts (after what Bush did, it was incumbent upon Obama to come into office with a list of nominees for every vacancy in the country, and push push push on them. Yes, there were other priorities, but I think it's pretty goddamn clear that passing liberal (ahem) laws doesn't do a lick of good if the judiciary is shot through with right wing assholes), and that's not even getting into the shitty high level appointments like Rahm and Geithner.

Furthermore, I get the sense that, deeper in the agencies, very little was done to undo Bush sabotage. I don't know whether rite's realistic to hope that HRC would/will be better on these things. I know her ideology is indistinguishable, and I doubt her partisan commitment, but I'm also given to understand that she did a legitimately good job of restoring a State Dept that Bush had left a shambles. I would stand foursquare behind a candidate who promised little more than a laserlike focus on recommitting government to civil service.


Posted by: JRoth | Link to this comment | 07- 1-14 7:18 AM
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BTW, I agree with 166, but I'm not convinced it lets Verilli or whoever off the hook.


Posted by: JRoth | Link to this comment | 07- 1-14 7:20 AM
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I do think that creating a record (not just argument) about the actual effect of the ACA on this issue could have changed the outcome of the case.

I disagree with 169 and think that generally the administration's appointments have been fine; this was just a fuck up.

The conspiracy theory in 159 seems more plausible once you realize (as seems to be the case) that the Hobby Lobby opinion won't actually have a practical effect on female Hobby Lobby employees. If the ACA's plan for religious nonprofits is extended to Hobby Lobby, which is what the Court suggests should happen, all that results is that an insurer is required to pick up 100% of the cost of contraception while certifying that none of the employer's funds are being used to pay for it, but the employee still gets the contraception coverage. Both the opinion and especially Kennedy's concurrence suggest that the government should simply extend this plan to Hobby Lobby. There's a different case coming up challenging even the nonprofit plan under RFRA, but it certainly seems from the opinion and the concurrence that there aren't 5 votes to get rid of that plan.

So, you have a decision with (perhaps) no practical consequence*, that the administration appears to have inexplicably thrown, that has an inexplicably over-broad RBG dissent (especially the first few pages) and that manages to passionately rile up both women voters and "corporations aren't people" voters ... hmmmm.

*I don't actually think this because some of the "substantial burden" analysis could be very dangerous in a subsequent case.


Posted by: Robert Halford | Link to this comment | 07- 1-14 7:34 AM
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...it was incumbent upon Obama to come into office with a list of nominees for every vacancy in the country, and push push push on them...

If the left had any sort of organization at all this would be almost a none-issue because there would already be a list of nominees lined up and ready to roll that the president could just pick up and fire off to congress. The right has a deep bench lined up through their various think tanks like Heritage and ALEC, not just nominees for the judiciary, but complete laws ready to roll out at a moment's notice. Places like CAP and Moveon just aren't up to the job - not enough money and also lacking the crazy passion that the Tea Party and evangelical right bring to the table.


Posted by: togolosh | Link to this comment | 07- 1-14 7:38 AM
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172:

If the left had any sort of organization at all this would be almost a none-issue because there would already be a list of nominees lined up and ready to roll that the president could just pick up and fire off to congress completely ignore.

FTFY.

Look, I'm not saying that the left does have these sorts of lists/organization. But seriously you'd have to replace "left" with "neoliberal" for that to be true of Obama's actions. He does push to the (center) left sometimes, but he's far more likely to do so when pushed really hard (Yellen instead of Summers) and that's not something you can do with an entire slate of nominees.


Posted by: MHPH | Link to this comment | 07- 1-14 7:59 AM
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Like Harriet Miers.


Posted by: urple | Link to this comment | 07- 1-14 8:00 AM
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171: Of course, Supreme Court rulings always end up having merely the narrow effect that writer of the opinion purports to be advancing.

Am curious, has your view of the import of the Citizens United evolved?


Posted by: JP Stormcrow | Link to this comment | 07- 1-14 8:01 AM
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174: Who would potentially have been a zillion times better than Alito. Hard to be worse.


Posted by: JP Stormcrow | Link to this comment | 07- 1-14 8:02 AM
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Harriet Miers.


Posted by: urple | Link to this comment | 07- 1-14 8:02 AM
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176: And the terrorists of the Federalist Society knew it and that is why they raised the hew and cry (and of course it was any easy one to torpedo).


Posted by: JP Stormcrow | Link to this comment | 07- 1-14 8:03 AM
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176: Better how?


Posted by: urple | Link to this comment | 07- 1-14 8:07 AM
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172 There are a lot more hardcore conservatives than liberals in this country. The silver lining of this unfortunate fact is that the left wing crazies are completely outside the party and also we're less likely to overreach with purity primaries in purple or reddish states (The Akin equivalents aren't even in the party, let alone getting nominated in places like PA or OH)


Posted by: teraz kurwa my | Link to this comment | 07- 1-14 8:07 AM
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Don't answer that.


Posted by: urple | Link to this comment | 07- 1-14 8:07 AM
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181 to 179.


Posted by: urple | Link to this comment | 07- 1-14 8:08 AM
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There are and were tons of organizations with lists of potential Democratic nominee judges and potential progressive legislation. Whatever the failure of the Obama administration was, it didn't come about because liberal groups had failed to make lists.


Posted by: Robert Halford | Link to this comment | 07- 1-14 8:11 AM
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70: a religious nonprofit, on the other hand, does have something in the nature of religious obligations written into its foundational documents

Where I find myself going on this is for there to be a more explicit delineation of "type" of corporation. If Hobby Lobby as an entity wants to avail itself of the protections given to religious organizations it should explicitly part of its charter, and very visible to those who want to engage in commerce with it such as those seeking employment.


Posted by: JP Stormcrow | Link to this comment | 07- 1-14 8:12 AM
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Were they bulleted lists? Were they bulleted lists with executive summaries? Did they use nice, readable fonts?


Posted by: Sifu Tweety | Link to this comment | 07- 1-14 8:13 AM
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175 -- not really. I thought at the time the main effects would be doctrinal (creating bad doctrine) and that the electoral effects would be real but overblown, and I still pretty much think that.


Posted by: Robert Halford | Link to this comment | 07- 1-14 8:13 AM
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"He's making a list, indenting it twice."


Posted by: JP Stormcrow | Link to this comment | 07- 1-14 8:14 AM
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187: "Gonna use Georgia 'cause Georgia is nice"


Posted by: Annelid Gustator | Link to this comment | 07- 1-14 8:17 AM
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Of course I live in a place where one of the most aggressively profit-seeking organizations (UPMC) is a "non-profit" so not sure what further categorization buys you in reality.


Posted by: JP Stormcrow | Link to this comment | 07- 1-14 8:21 AM
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189 -> 184


Posted by: JP Stormcrow | Link to this comment | 07- 1-14 8:21 AM
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189: They don't have a religion except profit.


Posted by: Moby Hick | Link to this comment | 07- 1-14 8:22 AM
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155, 157: Speaking of Faraday cages, Chicago last night.


Posted by: JP Stormcrow | Link to this comment | 07- 1-14 8:27 AM
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Binders full of judges.


Posted by: JRoth | Link to this comment | 07- 1-14 8:27 AM
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Oh hey, I may do an addition* for the daughter of the CEO of aforementioned org. I will strain to keep a civil tongue in my head.

*not an interesting project, but hopefully profitable


Posted by: JRoth | Link to this comment | 07- 1-14 8:29 AM
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192: Are you the Keymaster?


Posted by: Natilo Paennim | Link to this comment | 07- 1-14 8:34 AM
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For an explicitly-declared religious for-profit not sure what any "downside" would be other than maybe a requirement that they people would be . Theoretically there would be doctrinal constraints on acceptable actions, but of course necessarily not something subject to any regulations and controls, and also, Ha!


Posted by: JP Stormcrow | Link to this comment | 07- 1-14 8:34 AM
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195: Many Shuvs and Zuuls knew what it was to be roasted in the depths of the Slor that day, I can tell you!


Posted by: JP Stormcrow | Link to this comment | 07- 1-14 8:49 AM
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*I don't actually think this because some of the "substantial burden" analysis could be very dangerous in a subsequent case.

Not just the substantial burden analysis, but the legitimate state interest analysis as well, presumably.


Posted by: Ginger Yellow | Link to this comment | 07- 1-14 9:08 AM
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I thought the compelling state interest was binary -- you've got one or you don't. I think the court is implicitly treating it as if, while this is a compelling state interest, it's not a really compelling one, but I don't believe that sort of ranking is explicitly in the caselaw.


Posted by: LizardBreath | Link to this comment | 07- 1-14 9:28 AM
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So are you saying they've introduced a new test as well as (or in lieu of) making a stupid call on the existing test?


Posted by: Ginger Yellow | Link to this comment | 07- 1-14 9:35 AM
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Not really -- they didn't say anything at all on that point I noticed (and I really haven't read this carefully; all I did yesterday was scan for quotes) other than that this is a compelling state interest. You just have to think that they'd treat a different compelling state interest with more respect.


Posted by: LizardBreath | Link to this comment | 07- 1-14 9:39 AM
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In any of these cases you can rig the game by how you construct the "compelling state interest," since the "narrow tailoring" will follow whatever interest you construct. Eg if there's a compelling state interest in ensuring that all private employers have the same rules for health insurance regardless of religious affiliation, the ACA as written is narrowly tailored toward that goal. On the other hand if the interest is in providing affordable contraception coverage to women, then the government could adopt the plan of uses for nonprofits, so the ACA as written is not narrowly tailored. Etc etc.

It's easy for a moderately intelligent lawyer or judge to play that game to whatever end one wants.


Posted by: Robert Halford | Link to this comment | 07- 1-14 9:42 AM
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I thought (and I haven't had a chance to read it at all) that they said that even if it were a compelling state interest, the provision wasn't sufficiently narrowly tailored to outweigh the (supposed) substantial burden. I haven't seen anything to the effect that there's a compelling state interest, but not compelling enough.


Posted by: Ginger Yellow | Link to this comment | 07- 1-14 9:42 AM
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So there was, for instance this passage:"We find it unnecessary to adjudicate this issue. We will assume that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is compelling within the meaning of RFRA, and we will proceed to consider the final prong of the RFRA test, i.e., whether HHS has shown that the contraceptive mandate is "the least restrictive means of furthering that compelling governmental interest.""


Posted by: Ginger Yellow | Link to this comment | 07- 1-14 9:47 AM
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203: narrow tailoring isn't about outweighing the supposed burden: it's about making the burden as small as possible. There was no holding in the case about compelling government interest, they just assumed for the sake of argument that there was a compelling government interest in providing contraception without cost-sharing, and held that there were less-burdensome ways of achieving that interest.


Posted by: potchkeh | Link to this comment | 07- 1-14 9:48 AM
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203: narrow tailoring isn't about outweighing the supposed burden: it's about making the burden as small as possible.

Outweighing may be the wrong word, but I don't think that's quite right as a matter of law. If there's a substantial burden, the measure can only stand if it is narrowly tailored to promote the compelling state interest. The burden is still substantial, though, otherwise you wouldn't need the tailoring. The tailoring doesn't legally diminish the burden, it just gets the particular measure over the statutory hurdle.

Of course IANAL, so Ls feel free to tell me I'm talking shit.


Posted by: Ginger Yellow | Link to this comment | 07- 1-14 9:57 AM
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206 -- In this context Potchkeh is right, though this is all easily manipulable metaphysical nonsense so it's also kind of a who cares. The basic idea is that assuming all the other elements are met, the government has to make the burden on free exercise as small as possible to meet whatever its "compelling interest" is; if it has failed to do so, the law as applied doesn't stand.


Posted by: Robert Halford | Link to this comment | 07- 1-14 10:06 AM
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narrow tailoring isn't about outweighing the supposed burden: it's about making the burden as small as possible dressing like a mod.


Posted by: chris y | Link to this comment | 07- 1-14 10:08 AM
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all easily manipulable metaphysical nonsense so it's also kind of a who cares

My feelings about con law generally. I know it's important, and I know I should be intellectually interested, but I have a hell of a time staying focused given what incredible bullshit it all is. I end up just wanting to yell "You're nothing but a pack of cards!"


Posted by: LizardBreath | Link to this comment | 07- 1-14 10:10 AM
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206: I'm not entirely sure I'm following. Yes, narrow tailoring doesn't necessarily diminish the burden in any specific instance where someone is still burdened despite the narrow tailoring; but it does (in principle) mean that the collective burden should be smaller.)

(Also 202 is of course completely right, and Alito's handwavy assumption of what the compelling govt interest would be if there was one was total bullshit designed to set up the foregone conclusion. The government argued for a much broader interest.)


Posted by: potchkeh | Link to this comment | 07- 1-14 10:12 AM
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My feelings about con law generally. I know it's important, and I know I should be intellectually interested, but I have a hell of a time staying focused given what incredible bullshit it all is. I end up just wanting to yell "You're nothing but a pack of cards!"


Posted by: Sifu Tweety | Link to this comment | 07- 1-14 10:14 AM
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210: Try it this way: remember that the test is applied at a moment in time. So you're looking at the law as it is, not as it might be changed. (1) With the law as it is, is a religious interest substantially burdened? If not, plaintiff loses, if so, continue. (2) Does the state have a compelling interest in the law? If not, plaintiff wins, if so, continue. (3) We now have a substantial burden in conflict with a compelling interest. The final question is, in designing the law, did the state do everything it could have been expected to do in order to avoid the conflict? There had to be some law, because of the compelling interest, but is the law "narrowly tailored" so as to do the best the state could to minimize the burden? Even if the answer is yes -- the state narrowly tailored the law to minimize the burden -- the burden is still substantial, we decided that in step 1. But if the state narrowly tailored the law to avoid imposing more of a burden than necessary, the law survives.

Does that help as a way of thinking about it? You're not shrinking the burden as a process -- the situation is frozen at the point where you're analyzing it.


Posted by: LizardBreath | Link to this comment | 07- 1-14 10:19 AM
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211: Kinda.


Posted by: LizardBreath | Link to this comment | 07- 1-14 10:19 AM
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212: Sure. I'm just not following how 206 was disagreeing with 205. The reason for the narrow-tailoring requirement is to minimize (but not necessarily eliminate) the overall burden on religious exercise; a measure that is not narrowly tailored will be overall more burdensome than one that is.


Posted by: potchkeh | Link to this comment | 07- 1-14 10:34 AM
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Oh, I lost track of who was confused about what. 212 makes sense trying to clarify things for GY, not for you -- you had it clear from the beginning.


Posted by: LizardBreath | Link to this comment | 07- 1-14 10:37 AM
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Actually, GY isn't really confused either. I don't think anyone's confused about anything.


Posted by: LizardBreath | Link to this comment | 07- 1-14 10:43 AM
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Do you need somebody to be? I'm around.


Posted by: Sifu Tweety | Link to this comment | 07- 1-14 10:45 AM
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LB's clearly confused about who's confused.


Posted by: JP Stormcrow | Link to this comment | 07- 1-14 10:55 AM
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214: LB's pretty much covered it. I was trying to convey that "outweighing" (or whatever word you prefer) occurs in that the narrow tailoring doesn't reduce the burden of some hypothetical law below the "substantial" level. You still have a substantial burden, you still have a compelling state interest. The tailoring is what allows the actual law to stand despite the substantial burden.


Posted by: Ginger Yellow | Link to this comment | 07- 1-14 11:06 AM
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219: yes, but you can also have a situation where you strike something as insufficiently tailored becauae there's a narrower alternative that avoids the burden altogether. That's the thrust of yesterday's decision: if the government extends to Hobby Lobby the same accommodation it extends to religious nonprofits, it can still accomplish (Alito'so version of) its compelling interest without imposing the burden Hobby Lobby is complaining of at all. (Of course there are cases in the pipeline arguing that even the religious nonprofit accommodation is a RICA violation. Hopefully Kennedy will draw the line there.)


Posted by: potchkeh | Link to this comment | 07- 1-14 11:30 AM
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220.it can still accomplish (Alito's version of) its compelling interest without imposing the burden Hobby Lobby is complaining of at all.

Sure. And when interpreted narrowly ends up showing what a completely unprincipled narrow pander* to the base of the neo-confederate corporatist pseudo-libertarian wing of the court this decision is. Sure, easy-peasy, let the government fucking pay for it, says Samuel "no Medicaid expansion over my pasty white dead body" Alito.

*OK, maybe "the power of the RFRA compels me," but for me at least beyond the legal gyration this case has revealed what a horrorshow that piece of dreck is.


Posted by: JP Stormcrow | Link to this comment | 07- 1-14 11:49 AM
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221 is all kinds of incoherent legally, but it is right.


Posted by: JP Stormcrow | Link to this comment | 07- 1-14 11:50 AM
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all kinds of incoherent legally, but it is right

Isn't that a line from Kennedy's concurrence?


Posted by: politicalfootball | Link to this comment | 07- 1-14 12:47 PM
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The Supreme Court on Tuesday confirmed that its decision a day earlier extending religious rights to closely held corporations applies broadly to the contraceptive coverage requirement in the new health care law, not just the handful of methods the justices considered in their ruling.

Posted by: JP Stormcrow | Link to this comment | 07- 1-14 1:33 PM
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24 goddamn hours before the whittling began. Awesome.


Posted by: snarkout | Link to this comment | 07- 1-14 1:50 PM
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If you go whittling, use protection.


Posted by: Moby Hick | Link to this comment | 07- 1-14 2:09 PM
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This seems to be a good summary.


Posted by: chris y | Link to this comment | 07- 2-14 1:19 AM
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I even hate the name. "Hobby Lobby." It's annoying just to say. Do you even know what a "lobby" is, you misogynist dimwits?


Posted by: urple | Link to this comment | 07- 2-14 7:34 AM
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A lobby is a small anteroom. Pass through iit and you will be eaten by 100 mph falcons which think you're a dragonfly.


Posted by: chris y | Link to this comment | 07- 2-14 7:47 AM
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They obviously should have named it the Craft Shaft.


Posted by: dalriata | Link to this comment | 07- 2-14 8:07 AM
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I even hate the name. "Hobby Lobby." It's annoying just to say. Do you even know what a "lobby" is, you misogynist dimwits?

Though it ended up working out as a descriptor, given that they managed to force a change in law.


Posted by: Ginger Yellow | Link to this comment | 07- 2-14 8:12 AM
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There's one by my parents' house, but I've never gone inside it. I assume that whatever makes me want to flee from Michael's will be much worse in Hobby Lobby.


Posted by: Moby Hick | Link to this comment | 07- 2-14 8:31 AM
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220: (Of course there are cases in the pipeline arguing that even the religious nonprofit accommodation is a RICA violation. Hopefully Kennedy will draw the line there.)

RICA. ? Five minutes of googling doesn't yet tell me what that is. Having just reminded myself via a Washington Post article on organizations fighting the accommodation provision, whose reasoning is roughly:

"From our perspective, the accommodation doesn't change the equation. EWTN [religious broadcast network] is still in the position of having to trigger and direct others to provide what we find morally objectionable,"

this strikes me as absolutely critical. I'll have to read more at SCOTUSblog, which explains the Form 700 accommodation provision but doesn't mention RICA, as far as I see.

Dunno what the time frame on the dozens of other contraception mandate case coming up the pipeline is.


Posted by: parsimon | Link to this comment | 07- 2-14 9:56 AM
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233: Sorry, should have been "RFRA". I think it must've been phone autocorrect but I can't imagine what my phone was thinking. I owe you five minutes of googling.

As for time frame, one of the nonprofit religious accommodation cases will definitely hit the Supreme Court's docket in the fall--the Notre Dame case, with cert petition due early October. There are other cases but I think they're all pretty far behind.


Posted by: potchkeh | Link to this comment | 07- 2-14 10:15 AM
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RICA is just a typo for RFRA.

And, really, it's that second case that's crucial -- if the Court's line ends up being that the substantial burden/government interest/narrow tailoring rule only works as it did in Hobby Lobby because of the existence of a separate government program for nonprofits the implementstion of which wouldnt substantially affect the actual Hobby Lobby workers, then the case is NBD except for dropping some potentially dangerous (but easily distinguishable on the specific facts at issue in Hl) rhetoric.

If the Little Sisters case goes the other way, though, it's a full-fledged disaster. But the indications are that it won't, at least for Kennedy.


Posted by: Robert Halford | Link to this comment | 07- 2-14 10:20 AM
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Because there's no value I can add to the substance of this,

1) I imagine them as having mostly acrylic yarns in pastel baby blanket colors anyway so THEY WILL NEVER HAVE MY BUSINESS AGAIN

and

2) As a friend points out, Hobby Lobby is a really stupid fucking name. I mean, what happens in a lobby? Nothing, you wait for an elevator.

I am sort of proud for walking away from a dumb fb argument about the actual problem with a "oh, you're a libertarian, so there's no reason to talk to you" mic drop.


Posted by: Mister Smearcase | Link to this comment | 07- 2-14 10:31 AM
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Yeah, RFRA: puttering around in the kitchen just now and musing on "RICA" it dawned on me that RFRA may have been meant.

235: If the Little Sisters case goes the other way, though, it's a full-fledged disaster

Hell yeah: I'd be shocked out of my mind. How on earth the Court could rule that an employer can block coverage in general and under any circumstance for women in its employ would be mind-boggling.

RFRA seems to be a mess if could conceivably allow for that sort of thing.


Posted by: parsimon | Link to this comment | 07- 2-14 10:32 AM
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I assume everyone saw today's follow up decision. Christ almighty. Infuriating. The worst of the worst. Scoundrels. Dogs. Swine.


Posted by: urple | Link to this comment | 07- 3-14 5:14 PM
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Wow, that is surprisingly bullshit. Substantive bullshit, not much to do about, but procedural bullshit makes you a very bad judge.


Posted by: LizardBreath | Link to this comment | 07- 3-14 5:31 PM
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Ugh, what unspeakable shitbags.


Posted by: redfoxtailshrub | Link to this comment | 07- 3-14 5:32 PM
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Remember that stay in Bush v. Gore? I was a new baby lawyer, and I was shocked. Involuntarily yelped loud enough for people to hear in the hall when I read it.


Posted by: LizardBreath | Link to this comment | 07- 3-14 5:33 PM
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Could Wheaton College please be burned to the ground? That place is like a sister school to Bob Jones U. The whole thing is awful.


Posted by: ydnew | Link to this comment | 07- 3-14 5:56 PM
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The two schools could not be more different in their history on race.


Posted by: Moby Hick | Link to this comment | 07- 3-14 6:29 PM
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I thought the court went on recess immediately after issuing big rulings, so I kept thinking this meant some lower court, but that doesn't make sense and no one else seems confused by this.


Posted by: heebie-geebie | Link to this comment | 07- 3-14 6:36 PM
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I guess I don't understand the timing and how court orders work. I thought these things were all prewritten, but Ginsberg et al seem surprised by the sneakiness, but everyone only had three days to prepare all these writings?


Posted by: heebie-geebie | Link to this comment | 07- 3-14 6:39 PM
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243: I keep writing a longer response and promptly losing it. They're different on race (although I bet interracial dating doesn't come up much at Wheaton, I think it's pretty white), but they're very much alike in crazy conservative religious zealotry. In 2003, they overturned a policy banning dancing.


Posted by: ydnew | Link to this comment | 07- 3-14 6:52 PM
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244, 245: The last conference of the Term was June 26, and there will be no more merits opinions this Term, but this was an application for an injunction (emergency relief), not a merits opinion. The Court hears those all year round. The Justices may or may not be physically in DC to vote on emergency orders. A significant number of them do travel in the summer.

Sotomayor's chambers is almost certainly capable of putting together a dissent of this length in three days if necessary (i.e., if the vote had been taken on Monday), but they probably had more lead time than that. Probably this was done after the Hobby Lobby opinions became final, but that could have been sometime last week. They might have done the formal vote to grant relief at the June 26 conference (or even earlier) and then held off releasing the result while the order itself and the dissent were prepared.


Posted by: widget | Link to this comment | 07- 3-14 7:13 PM
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although I bet interracial dating doesn't come up much at Wheaton, I think it's pretty white

That's really minimizing a bunch of history. Wheaton had an African American graduate in 1866.


Posted by: Moby Hick | Link to this comment | 07- 3-14 7:15 PM
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247: thanks.


Posted by: heebie-geebie | Link to this comment | 07- 3-14 8:43 PM
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247: Wheaton only applied for the injunction on the 30th (and got a temporary injunction the same day), and briefs were due yesterday at 5pm, so the actual vote must have been last night or today. Presumably the writing was on the wall and the dissent got started in advance. (There was an extra conference on the 30th but probably before the application was docketed.) What a fucking clown show.


Posted by: potchkeh | Link to this comment | 07- 3-14 8:45 PM
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A significant number of them do travel in the summer.

To WalMart parking lots.


Posted by: Moby Hick | Link to this comment | 07- 3-14 8:58 PM
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250: The Conference gave them a four-day turnaround on an injunction pending certiorari and issued the order the day after the briefs were in? And it was clear enough what the majority was going to do (before the briefs were in) that there was time for a sixteen-page dissent? That really is amazing -- and Sotomayor's clerks must have been pulling all-nighters. Well, thank you for checking the details.


Posted by: widget | Link to this comment | 07- 3-14 10:51 PM
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248: Wheaton is about 80% white, 2.1% African American, 5% Latino. For comparison to a state school, UIUC is 46% white (although they list 16% "foreign," so it's a funny way of reporting), 10% Latino, 6% African-American. Wheaton's faculty is 76% white (88% when only full time faculty is included). About 10% of their student body has been homeschooled at some point in their high school career. I'm pretty comfortable characterizing it as a school for extremely conservative Christians, and I think that "pretty white" is accurate.


Posted by: ydnew | Link to this comment | 07- 4-14 6:17 AM
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I'm not disputing that it's pretty white or for extremely conservative Christians. I'm arguing that in the context of American Protestantism, a school that removed it's last racial segregation rules this century and one founded by abolitionists are too different for that reason to count as sister schools.


Posted by: Moby Hick | Link to this comment | 07- 4-14 6:32 AM
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253: 46 + 6 +10 (+16?) doesn't quite add up. The classes I taught at UIUC were well over 46% white.


Posted by: Di Kotimy | Link to this comment | 07- 4-14 6:44 AM
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European dudes find you irresistible.


Posted by: Moby Hick | Link to this comment | 07- 4-14 6:48 AM
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Demographics have indeed shifted significantly since the late 90s: http://www.dmi.illinois.edu/stuenr/#new


Posted by: Di Kotimy | Link to this comment | 07- 4-14 6:54 AM
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Let's all not open spreadsheets on a holiday.


Posted by: Moby Hick | Link to this comment | 07- 4-14 6:58 AM
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What is the star-spangled banner but a national spreadsheet?


Posted by: heebie-geebie | Link to this comment | 07- 4-14 6:59 AM
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254: I'd say the level of zealotry makes them family members, and that while they may have been reasonably good on race then, they're pretty sad now. BJU is worse, no argument, but I'd like to see them both gone.

255:Yeah, I pulled the #s from the link in 257. I left out the 17% Asian figure, which gets you close to 100%. (They had more categories than Wheaton did.)


Posted by: ydnew | Link to this comment | 07- 4-14 7:07 AM
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On the Wheaton College order/decision, there's something I don't get: according to SCOTUSblog,

First, the college need not file a form prescribed by the government to claim the accommodation that would shift the legal duty to its insurer or plan administrator to provide the actual birth control services. The college objected even to filing that form, saying it put the college into the middle of assuring access to those services.
Second, the college need only write a letter to the government to claim an exemption.

So ... how does simply writing a letter, rather than filing a form, avoid putting the college in the position of assuring access to contraception coverage? Either I'm missing something significant, or this makes absolutely no sense. Is there something particular about the form that violates RFRA (on this reading), while a simple letter doesn't?


Posted by: parsimon | Link to this comment | 07- 4-14 9:03 AM
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Secondly, Denniston goes on to note that

the Court said the government may rely on the college's letter to the government as the mechanism for facilitating the access to the birth control services. There is nothing in existing government regulations that allows such a letter instead of the government form, and nothing in those regulations that says such a letter is enough to guarantee access to birth control. But the Court order appears to be, in effect, a rewrite of those regulations.

Okay, that's weird too: is it supposed to be the case that RFRA is violated by the form because the form is government mandated, but is not violated by a letter because that's not mandated? I guess I need to understand more about just what RFRA says.

Er, the last thing I haven't gotten clear on is for how long this temporary injunction is to be in place: what are we waiting on? Some lower court determination about something, now?


Posted by: parsimon | Link to this comment | 07- 4-14 9:07 AM
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261, 262: Well, it doesn't make sense. But if I wanted to give them more charity than they deserve and make it make sense, I'd say that there's a little bit of daylight between informing the government of your religious objection on the one hand, and filing a form not just with the government but also the insurer/administrator on the other. But it's not entirely beyond the realm of possibility that they'll eventually hold that even notifying the government is an impermissible burden on Wheaton's exercise. (In the future, the government will be obligated to read the minds of religious objectors.) I'm still holding out some hope that Kennedy won't go that far--the Wheaton order, like the Hobby Lobby decision itself, seems to think this doesn't actually stop anyone from getting contraceptives without cost-sharing (although it's unclear at this point whether or not that's true); it's possible Kennedy won't go along with anything that does.

The injunction is in place until Wheaton gets appellate review, but since they haven't even gotten through the district court yet, that'll be a while, basically until the Supreme Court answers the question on the merits in one of the pipeline cases on this issue.


Posted by: potchkeh | Link to this comment | 07- 4-14 9:26 AM
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261, 262: Well, it doesn't make sense. But if I wanted to give them more charity than they deserve and make it make sense, I'd say that there's a little bit of daylight between informing the government of your religious objection on the one hand, and filing a form not just with the government but also the insurer/administrator on the other. But it's not entirely beyond the realm of possibility that they'll eventually hold that even notifying the government is an impermissible burden on Wheaton's exercise.

If the letter has the same practical effect, I can't see how they could hold otherwise (with a straight face), if Wheaton argues it. You'd need to make some kind of willful blindness argument, and then accept that the willful blindness should be respected, to distinguish the two. Which seems to contradict the entire point of willful blindness jurisprudence.


Posted by: Ginger Yellow | Link to this comment | 07- 4-14 9:38 AM
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263.last: basically until the Supreme Court answers the question on the merits in one of the pipeline cases on this issue.

Yeah, I see: a final judgment on accommodation-via-Form-700 awaits one of the merits cases. You mentioned the Notre Dame case as likely next in line? I can't quite make out the current status of the Little Sisters case, except that Sotomayor issued a temporary stay this past January.

But it's not entirely beyond the realm of possibility that they'll eventually hold that even notifying the government is an impermissible burden on Wheaton's exercise.

As I said, I'll be shocked out of my mind. I've just read about the Notre Dame case at some place called The Jurist:

under the University's view, a judge who recuses himself from a death-penalty case could claim that he has a RFRA right to refuse to recuse in writing because that would facilitate the assignment of a new judge to hear the case. A wartime conscientious objector could claim an exemption from appearing at the draft office to put his objection in writing because that would pave the way for someone else to be assigned in his place.

This is just an insane argument.


Posted by: parsimon | Link to this comment | 07- 4-14 9:48 AM
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264: It's not clear yet whether the letter can have the same practical effect, but yes, it's clear that Wheaton does object to the extent that it could. What they object to is triggering the designation of a third-party administrator to provide contraceptives without cost-sharing, and if the letter does it, they're going to claim that's a substantial burden. Unless the Court can come up with something even more narrowly tailored that still gets everyone their free contraceptives, they'll have to decide (a) whether this is still a "substantial" burden (which under the Hobby Lobby decision, it would almost have to be because "substantial burden" now equals "whatever the plaintiff says") and (b) whether there's in fact a compelling government interest here (which the Hobby Lobby decision passed over with some dismissive comments). So my guess is it'll probably ultimately turn on Kennedy's answer to (b).


Posted by: potchkeh | Link to this comment | 07- 4-14 9:55 AM
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It really doesn't make any sense as a distinction. An injunction saying Wheaton could do nothing, while still wrong, would be coherent. An injunction saying they can skip the form as long as they send a letter which will plausibly also lead to the provision of contraception to Wheaton's employees, is nuts. It's either pointless or it doesn't give them meaningful relief.


Posted by: LizardBreath | Link to this comment | 07- 4-14 10:25 AM
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At some point don't these arguments approach, "I'm not paying some of my taxes because they're used for war/IRS/Medicaid and I my religion is opposed to those things," arguments which have long been rejected?


Posted by: SP | Link to this comment | 07- 4-14 10:36 AM
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I think the majesty of the law is taking a blow to the crotch on this one.


Posted by: Moby Hick | Link to this comment | 07- 4-14 10:54 AM
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268: Yes? But the Court has been insisting that its rulings in these matters don't generalize: it's only about contraceptive coverage. Which is hogwash.

What these arguments approach is a claim that (on the basis of RFRA alone, apparently) a conscientious religious objection to a given matter of law doesn't exempt just the objector, but can morph into a essential veto against the execution of the law at all, by anyone else potentially taking the objector's place.

It is absolutely bananas. It's a libertarian argument, is it not?


Posted by: parsimon | Link to this comment | 07- 4-14 11:06 AM
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