Friday, April 20, 2018
Opinion

Yes, (some) corporations can pray— and we'll all pay

In its decision Monday in the Hobby Lobby case, the conservative U.S. Supreme Court majority that upheld corporations' religious objections to birth control spends an inordinate amount of time defending itself from the reasoning and wrath of Justice Ruth Bader Ginsburg's dissent.

Justice Samuel Alito, whose name is on the decision, alludes no fewer than 24 times to the "principal dissent," which Ginsburg wrote for the four-member minority. Plainly, he felt Ginsburg's powerful intellect breathing down his neck as he tried to find a path to upholding the Hobby Lobby parties' attack on women's rights without expanding corporate "personhood" too much.

He failed. Ginsburg concisely labels Alito's ruling one of "startling breadth," pointing out all the doors it opens to religious claims by business owners trumping the rights of their employees. She also observes that the majority's answer to allowing business owners to opt out of covering their employees' legitimate health needs is that "the general public can pick up the tab."

In other words, the decision gives business owners the right to weasel out of their legal obligations by sticking you and me with the bill.

The Hobby Lobby case, as we reported earlier, has been percolating for months as yet another corporate challenge to the Affordable Care Act. It was brought originally on behalf of the pious owners of that privately held crafts chain, along with other private businesses. They asserted that their religious convictions were trampled by the Affordable Care Act's mandate that medium and large employers cover contraceptives for their female employees without cost sharing — that is, without co-pays and deductibles.

The businesses pointed to a 1993 federal law, the Religious Freedom Restoration Act, which prohibits the government from imposing a "substantial burden" on a person's exercise of religion, even in a generally enforced law. The court majority ruled that the law effectively pre-empts the contraceptive mandate in the ACA.

Eric Posner of the University of Chicago law school contends that, to the extent the majority relied on the RFRA, "Alito's legal argument is stronger than Ginsburg's." But the law itself, he says, "is pretty dumb."

Alito maintains that his decision is narrow, applying only to contraceptives, and only to "closely-held" companies — that is, not to publicly traded corporations. Ginsburg doesn't buy it. She asks how the ruling can be differentiated from those in which business owners pose religious objections to granting insurance coverage for "blood transfusions (Jehovah's Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia ... and pills coated with gelatin (certain Muslims, Jews and Hindus); and vaccinations (Christian Scientists, among others)." She concludes, "the court ... has ventured into a minefield."

To a great extent, the decision turns on whether a business is a "person." This is the same minefield the court seeded in its infamous Citizens United case in 2010, when it held that campaign finance laws limiting corporate contributions violated corporations' free-speech rights. The detonation of those mines has laid waste to the electoral process, turning it into a playground for corporate interests. (More of a playground, anyway.)

Here the court's majority rules that a privately held company is, in effect, a "person" that can express religious convictions. Alito sugarcoats that finding, acknowledging that corporate personhood is a "fiction," but one designed to "provide protection for human beings."

Ginsburg also picks that assertion clean. "The exercise of religion is characteristic of natural persons, not artificial legal entities," she writes, quoting retired Justice John Paul Stevens as having observed in the Citizens United case that corporations "have no consciences, no beliefs, no feelings, no thoughts, no desires."

Today's decision invests them with all the consciences, beliefs, thoughts, and desires of characters from Tolstoy. And that's a lot.

Alito and Justice Anthony Kennedy, in a separate concurrence, argue that the federal government has already offered an accommodation to nonprofit organizations that object to the contraception mandate — they can cede the responsibility for the coverage to their insurers, who cover their own expenses via a rebate on a federal tax. They ask: Why not extend that break to closely held companies?

(That's how the general public would end up subsidizing the religious discrimination practiced by Hobby Lobby's owners.)

What Kennedy and Alito seem to miss is that those nonprofit groups didn't gain the exemption because they were nonprofit, but because their exclusive purpose was religious, not commercial. "The court forgets that religious organizations exist to serve a community of believers," Ginsburg writes. "For-profit corporations do not fit that bill."

It will be said that Monday's decision walked a fine line, giving the Hobby Lobby owners what they sought without opening the floodgates to religious objections to a wide range of laws and regulations.

The court has signaled that it's open as never before to claims by private businesses for exemptions from laws that apply to the rest of us, based on religious beliefs that can't be objectively verified. And if they win, we'll pay. Ginsburg's question is apt: What's next? — Los Angeles Times

Comments
Goodman: In America, truth is missing in action

Goodman: In America, truth is missing in action

It’s "Mueller Time," as the nation grows ever closer to a confrontation with the truth.Was collusion with the Russians an illusion? If not, who was involved, what was done, and when? Did it impact the 2016 campaign, the fate of Hillary Clinton and no...
Updated: 5 hours ago
Editorial: New Cuba president is chance for new start

Editorial: New Cuba president is chance for new start

For all the symbolism, Raul Castro’s handoff of the Cuban presidency this week amounts to less than meets the eye even if his handpicked successor, the Communist Party functionary Miguel Diaz-Canel Bermudez, is the first person not named Castro to le...
Updated: 5 hours ago

Editorial: A missed chance for open primary elections

The Florida Constitution Revision Commission did a lot of things wrong this week by combining unrelated or unpalatable provisions into single amendments that will appear on the November ballot. It also wasted an opportunity to do one thing right. The...
Updated: 6 hours ago
Editorial: When they visit Nature’s Classroom, kids are right where they belong

Editorial: When they visit Nature’s Classroom, kids are right where they belong

The Hillsborough school district planted a fruitful seed with the opening of Nature’s Classroom five decades ago on the cypress-lined banks of the Hillsborough River northeast of Tampa. • The lessons taught there to some 17,000 sixth graders each yea...
Published: 04/20/18
Howard Altman: Tampa company analyzed strike on Syrian facilities

Howard Altman: Tampa company analyzed strike on Syrian facilities

After President Donald Trump announced the U.S., France and England had carried out attacks on three Syrian chemical weapons centers, a Tampa company began its own analysis of the bomb damage.The analysis, by geospatial intelligence firm Radiant Solu...
Published: 04/20/18

Editorial: Equality pays off on Southwest Flight 1380

The passengers of Southwest Flight 1380 can be thankful that, 33 years ago, the U.S. Navy took the lead on equal opportunity.Capt. Tammie Jo Shults was piloting the flight from New York to Dallas on Tuesday when an engine exploded, blowing out a wind...
Updated: 6 hours ago
Editorial cartoons for April 21-23

Editorial cartoons for April 21-23

These cartoons are from various Times wire services.
Updated: 7 hours ago
Book review: James Comey wants to explain himself

Book review: James Comey wants to explain himself

In 2016, as the director of the FBI, James Comey publicly dissected Hillary Clinton’s email server controversy. Later, we learned that Comey was keeping to himself the beginnings of an investigation into Russia’s active interference in the U.S. elect...
Updated: 8 hours ago
Nickens: Democratic candidates for governor are not ready for prime time

Nickens: Democratic candidates for governor are not ready for prime time

Here’s a sentence that will surprise some folks: I agree with Blaise Ingoglia.Ingoglia is the chairman of the Republican Party of Florida and a state representative from Spring Hill. That’s an inherent conflict that he doesn’t recognize, and we don’t...
Updated: 9 hours ago
Column: Why the Starbucks racial bias training is more than just good PR

Column: Why the Starbucks racial bias training is more than just good PR

Starbucks isn’t really in the coffee business. We’ve known that for over a decade. McDonald’s coffee is better and cheaper than Starbucks, but that hasn’t done any harm to the coffee shop’s bottom line. That’s because what people are paying for when ...
Updated: 10 hours ago