UBB.classicTM 6.5.0
quote:There seems to be exactly zero legal reasoning as to why contraception is a such a special case other than an implied "girls have cooties, so their medical needs don't count".
This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs. Nor does it provide a shield for employers who might cloak illegal discrimination as a religious practice. United States v. Lee, 455 U. S. 252, which upheld the payment of Social Security taxes despite an employer’s religious objection, is not analogous. It turned primarily on the special problems associated with a national system of taxation; and if Lee were a RFRA case, the fundamental point would still be that there is no less restrictive alternative to the categorical requirement to pay taxes. Here, there is an alternative to the contraceptive mandate. Pp. 45–49
quote:Like a lot of things, this goes back to the Second World War. During the war there was national price and wage control. Since companies couldn't compete for workers by offering higher wages (and labor was at a premium with the draft), they started competing by offering better benefits packages, which didn't fall under the wage control legislation. After the war, while the U.K. was busily implementing the NHS the U.S. simply took the existing employer-based insurance system and started subsidizing it with tax breaks, essentially cobbling together an ad hoc "national health care system".
Originally posted by Twangist:
As an ignorant Englishman I'm not honestly seeing the back story on this (I realise that Americans don't have the NHS and that health insurance is therefore the way to go).
Why is your healthcare anything to do with your employer?
quote:Not exactly. The main plaintiffs in this case [Hobby Lobby/the Green Family] are partisan opponents of President Obama and his reforms. This suit was part of a concerted effort to derail the ACA/"Obamacare". Hobby Lobby's opposition to contraception is of dubious sincerity and recent vintage.
Originally posted by Twangist:
Light dawns .....thanks
so does that mean that Mr Obama's reforms have in this case been used to have the opposite effect than was intended? (he presumably wanted better healthcare for more people not worse healthcare for some people)
quote:
Documents filed with the Department of Labor and dated December 2012 — three months after the company's owners filed their lawsuit — show that the Hobby Lobby 401(k) employee retirement plan held more than $73 million in mutual funds with investments in companies that produce emergency contraceptive pills, intrauterine devices, and drugs commonly used in abortions. Hobby Lobby makes large matching contributions to this company-sponsored 401(k).
quote:In fairness to the complainants, I'm not sure what to make of the phrase "some scientists and doctors". And I wonder if everyone is working with the same definition of what constitutes an abortion (a question which if pursued would no doubt take us directly to Dead Horses). I don't think anyone tried to argue in this case that the complaints' understanding of the science was simply wrong.
Originally posted by quetzalcoatl:
One fascinating aspect of this is the belief by the employers (Green et. al.), that the contraceptives in question are abortive. However, some scientists and doctors seem to disagree that they are abortive,
quote:But haven't the courts determined that it is not within their remit to determine the plausibility of a religious claim? This seems to mean that it doesn't matter whether Green et. al. are correct in calling these contraceptives abortive and therefore immoral; what matters is that they sincerely hold this belief.
Originally posted by marsupial.:
quote:In fairness to the complainants, I'm not sure what to make of the phrase "some scientists and doctors". And I wonder if everyone is working with the same definition of what constitutes an abortion (a question which if pursued would no doubt take us directly to Dead Horses). I don't think anyone tried to argue in this case that the complaints' understanding of the science was simply wrong.
Originally posted by quetzalcoatl:
One fascinating aspect of this is the belief by the employers (Green et. al.), that the contraceptives in question are abortive. However, some scientists and doctors seem to disagree that they are abortive,
quote:Alito actually addresses this on pp. 36-38 of the opinion.
Originally posted by marsupial.:
quote:In fairness to the complainants, I'm not sure what to make of the phrase "some scientists and doctors". And I wonder if everyone is working with the same definition of what constitutes an abortion (a question which if pursued would no doubt take us directly to Dead Horses). I don't think anyone tried to argue in this case that the complaints' understanding of the science was simply wrong.
Originally posted by quetzalcoatl:
One fascinating aspect of this is the belief by the employers (Green et. al.), that the contraceptives in question are abortive. However, some scientists and doctors seem to disagree that they are abortive,
quote:So in other words, it doesn't matter if a form of contraception actually causes abortion, what matters if whether or not you believe it does. The triumph of conviction over reality.
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”); Hernandez v. Commissioner, 490 U. S. 680, 699 (1989); Presbyterian Church in U. S. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U. S. 440, 450 (1969).
<snip>
Similarly, in these cases, the Hahns and Greens and their companies sincerely believe that providing the insurance coverage demanded by the HHS regulations lies on the forbidden side of the line, and it is not for us to say that their religious beliefs are mistaken or insubstantial. Instead, our “narrow function . . . in this context is to determine “whether the line drawn reflects “an honest conviction,” id., at 716, and there is no dispute that it does.
quote:I'm fairly sure that anyone making the case to women that handing the Republicans the power to appoint more Supreme Court Justices like Samuel Alito is a bad idea will cite this opinion as Exhibit #1. (Unless a more atrocious opinion is issued between now and November 2016.)
Originally posted by quetzalcoatl:
Don't you think that it may also be a Pyrrhic victory for the Christian Right? Surely this is going to exercise many women, and probably increase the number voting for Hillary?
quote:Actually HHS simply stipulated that insurance companies had to offer no-cost riders to employees of exempted non-profits, without the government picking up the cost. I suspect that the "cost" of these riders is something most insurance companies are more than willing to bear themselves, since a year's worth of contraceptives is a lot cheaper for them to cover than an unplanned pregnancy. In short, I suspect the "cost" of contraceptive riders is negative, from the insurer's point of view.
Originally posted by ToujoursDan:
Last year there was a huge controversy over Obamacare mandating that the insurance carriers for all institutions, including Catholic hospitals/universities, etc. provide contraception coverage. The Catholic bishops fought tooth and nail over it, saying that they shouldn't have to pay for something they are against. The Administration ultimately provided a compromise whereby insurance companies are still required to provide contraception coverage but that the government would pick up the cost.
quote:You'd think something like that would have been clearly spelled out in the opinion.
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.
The justices did not comment in leaving in place lower court rulings in favor of businesses that object to covering all 20 methods of government-approved contraception.
quote:Still, they have some nice juicy targets now; first, the horrid gays, with their horrid life-style choices. Second, all those uteruses, which somehow must be controlled, or horror, horror, they will be empty! And that means women are not fulfilling their divine duty to babyfarm; instead the immoral sluts are having sexyfuntime and taking slut pills. #NoPillsForSluts
Originally posted by Martin PC not & Ship's Biohazard:
Dear me. And all of this because the religious right couldn't discriminate PROPERLY, on the basis of race, any more.
quote:Well, we can considerably restrict their right to vote, or rather, their ability to vote.
Originally posted by Brenda Clough:
And do not neglect persons of ethnicity. All those annoying demands to vote, or work, or sit down on buses.
quote:Given how weaselly Alito is about emphasizing that the sincerity of the plaintiff's beliefs, not their accuracy, is what's key, I'm not sure this is the most plausible interpretation of the opinion. From p. 8:
Originally posted by marsupial.:
(Replying to Croesos, but not trying to edit that long quote:)
I saw those paragraphs in Alito's decision. I read them as addressing the issue of moral remoteness, not the issue of the science itself.
quote:The emphasis is added by me, but you can see the outline of the argument. The contraceptives in question cause abortions "according to their religious beliefs", not according to the FDA or any other kind of evidence. "[T]hey believe they will be facilitating abortions", argues Alito, leaving aside the question of whether that belief in any way reflects reality.
The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients. If the owners comply with the HHS mandate, they believe they will be facilitating abortions, and if they do not comply, they will pay a very heavy price — as much as $1.3 million per day, or about $475 million per year, in the case of one of the companies. If these consequences do not amount to a substantial burden, it is hard to see what would.
quote:I'd phrase it a little differently: the conservatives on the Supreme Court think women who use birth control are dirty whores. It comes down to that. They also wouldn't weigh in on whether certain birth control methods that the plaintiffs think cause abortions (IUD, morning after pills) actually cause abortions or not (hint: they don't), which I think is really chickenshit. Can I say that in Purgatory?
Originally posted by quetzalcoatl:
I would think that Hillary Clinton is currently dancing a jig in her office, as surely this gives her some useful ammunition; 'Republicans target women's rights and reproductive health' has quite a nice ring.
quote:This is interesting. I don't know anything about the science, though before looking at Wikipedia a moment ago I would have assumed the science was more on their side than Wikipedia says it is. In the end, as you say, as a matter of law it doesn't matter whether they have the science right. As a practical matter I would have thought it was a bad idea to embark on a long expensive court case if there was no scientific evidence supporting your belief in the actual effect of these contraceptive methods. I think you would risk a (very embarassing) finding at first instance that your belief in the actual effect of these methods was not a sincere religious belief but simple scientific misapprehension. Of course if the empirical issue is more debatable then I suppose we are off to the races.
Originally posted by Crœsos:
The emphasis is added by me, but you can see the outline of the argument. The contraceptives in question cause abortions "according to their religious beliefs", not according to the FDA or any other kind of evidence. "[T]hey believe they will be facilitating abortions", argues Alito, leaving aside the question of whether that belief in any way reflects reality.
quote:I think this is just wrong. Courts have never been in the business of assessing the objective reasonableness of religious beliefs. The key thing is that finding a sincere religious belief doesn't end the analysis. There is a justification analysis for interfering with these beliefs based on whether there is a compelling state interest in taking action that burdens that belief, and the normative basis for assessing this state interest is (broadly speaking) that of the liberal constitutional state. It's very clear that a majority of the Court (Kennedy J. + the dissent) thinks there is a compelling state interest in making all forms of contraception generally available. But the "least restrictive means" argument was a hard argument for HHS (given the majority's holding) because Congress had already carved out a similar exception for religious non-profits.
Originally posted by quetzalcoatl
Maybe the Enlightenment has now come to an end, or has been anaesthetized.
quote:If you're wary of Wikipedia, how about what the FDA says? Here is the patient information leaflet for Plan B
Originally posted by marsupial.:
This is interesting. I don't know anything about the science...
quote:and the Prescribing information for Mirena, a commonly used IUD.
Emergency contraceptive pills are not effective if a woman is already pregnant. Plan B
One-Step is believed to act as an emergency contraceptive principally by preventing ovulation or fertilization (by altering tubal transport of sperm and/or ova). In addition, it may inhibit implantation (by altering the endometrium). It is not effective once the process of implantation has begun.
quote:FDA is extremely fussy about what information goes into these kind of leaflets, and generally you can't say anything in them or make claims without hard data that they have thoroughly evaluated. So they will generally represent the most up to date science and consensus (companies are obliged to update their leaflets whenever new data comes to light, whether they generate it or someone else does).
It is not known exactly how Mirena works. Mirena may work in several ways. It may thicken your cervical mucus, thin the lining of your uterus, inhibit sperm movement and reduce sperm survival. Mirena may stop release of your egg from your ovary, but this is not the way it works in most cases. Most likely, these actions work together to prevent pregnancy.
quote:It may give her some vision and message besides "It's my turn now " which it has been up to now
Originally posted by quetzalcoatl:
I would think that Hillary Clinton is currently dancing a jig in her office, as surely this gives her some useful ammunition; 'Republicans target women's rights and reproductive health' has quite a nice ring.
quote:I.e., as I said above (way above), the issue is partly purely an empirical issue and partly a definitional issue. I think reasonable people would generally agree that the empirical issue should be settled purely on the evidence and has nothing to do with religious belief. The definitional issue has to do with normative issues that could reasonably be matters of religious belief (the reasonabless or otherwise of which of course is a topic for Dead Horses).
Originally posted by hilaryg:
The other thing to note is that medical science (at least in both the USA and UK) defines conception as implantation. So even if Plan B or Miranda do prevent a pregnancy due to inhibiting implantation, they are not abortifacients as defined by the medical community, only by people who define conception as fertilisation.
quote:I must admit that the Supreme Court ruling feels somewhat anti-science. This is established facts and mainstream science that HL are saying they do not believe, and the ruling effectively says that's ok in law.
Originally posted by marsupial.:
I.e., as I said above (way above), the issue is partly purely an empirical issue and partly a definitional issue. I think reasonable people would generally agree that the empirical issue should be settled purely on the evidence and has nothing to do with religious belief. The definitional issue has to do with normative issues that could reasonably be matters of religious belief (the reasonabless or otherwise of which of course is a topic for Dead Horses).
quote:There are plenty of cases of spontaneous abortion in early pregnancy. If you think "life begins at fertilisation", then you would naturally rank fertilised eggs that don't implant alongside fertilised eggs that implant but are spontaneously aborted soon after. I don't think "addressing" is required.
Originally posted by hilaryg:
Only 50% of fertilised eggs ever eventually implant and form a pregnancy. I've not yet seen the "life begins at fertilisation" crowd address the matter of the 50% of fertilised eggs that never become a pregnancy.
quote:Not all corporations are publicly traded, so your distinction is meaningless. The difference is between corporations and entitities in which the owners take direct responsibility for the actions of the company.
Originally posted by Leorning Cniht:
Publicly-traded companies are another thing, but can anyone advance a real argument for why John Smith, private individual should be treated differently from John Smith, self-employed tradesman, or from Smith LLC, a company with two employees entirely owned by Mr. Smith?
Because the implication of snarking about corporations being people is that you think it's different.
quote:No, really, it's not.
Originally posted by mousethief:
Not all corporations are publicly traded, so your distinction is meaningless.
quote:In practice, people who own small businesses allow their personal morals and ethics to govern their business practices all the time. I don't think any one of us would view a landlord who threw a young family out on to the streets any differently because he happened to manage his rental properties through a corporation rather than as an individual. Same guy, same actions.
A corporation is a legal fiction designed to allow people to not take responsibility for their actions. If you're going to hide behind the corporate wall, then insist that your religion should be allowed to permeate that wall in one direction, but responsibility should not permeate the wall in the other direction, then you are a fucking hypocrite (generic "you").
quote:But John Smith LLC, even if it's a corporate "person" in some ways as concerns the law, is not the SAME person as John Smith. And it's not at all clear that all of John Smith the person's rights should devolve onto John Smith LLC, when all of the responsibilities of John Smith LLC do not devolve onto John Smith. It's trying to have it both ways.
Originally posted by Leorning Cniht:
It's obvious that Exxon Mobil, say, does not represent a single person. It's owned by a large number of people (and a lot of its owners are pension funds and the like, which in turn ...)
It is equally obvious that John Smith the person is still John Smith the person when he's pretending to be John Smith the S corp or John Smith LLC.
quote:Not that I want to disagree with you about the substantial issue here... but a charity is incapable of being baptised. Is a charity therefore incapable of being religious? For that matter, is a church or whatever you call the body that runs a mosque incapable of being religious?
Originally posted by mousethief:
Companies cannot be baptised, they cannot be circumcised, they cannot go on hajj. There is a category error taking place here -- the type of "person" that a company is, is incapable of being religious.
quote:Hear, hear! That's the first word of sense on this mystifying thread.
Originally posted by Dafyd:
quote:Not that I want to disagree with you about the substantial issue here... but a charity is incapable of being baptised. Is a charity therefore incapable of being religious? For that matter, is a church or whatever you call the body that runs a mosque incapable of being religious?
Originally posted by mousethief:
Companies cannot be baptised, they cannot be circumcised, they cannot go on hajj. There is a category error taking place here -- the type of "person" that a company is, is incapable of being religious.
quote:That is not necessarily the case at all. The government's interest in ensuring access to blood transfusions is more compelling, since it is more expensive, there are fewer alternatives that provide the same outcome, etc. Furthermore, one would need to look at the alternative means available to ensure access to blood transfusions, which is likely fewer. Thus, this is a very different analysis that could well have a different outcome.
Originally posted by Matt Black:
But...based on that reasoning, a JW-owned 'closely-held' corporation would be entitled to withhold payment for coverage for blood transfusions. Happy with that?
quote:But you are defining 'harm' quite narrowly here. What about the fact that some women's reproductive health choices are being described as immoral? I am certainly hearing women saying that they feel shocked and harmed by that judgment.
Originally posted by GCabot:
Without going into legal technicalities, this boils down to the harm caused to each side.
With the way the SCOTUS ruled, the employees of this closely-held corporation are not provided coverage for four types of birth control. This does not significantly hamper the employees' access to birth control. Hobby Lobby still covers all sixteen other forms of birth control recognized by the FDA. The four types that are not provided are not something that is hard to find or too expensive for employees to afford on their own, i.e., there are numerous other means of ensuring access to these types of birth control, if necessary, than requiring employers to provide them.
This ruling also does not provide employers carte blanche to start denying employees things left and right as they wish. First, evidence of sincerely held religious belief must be shown. Second, the severity of the infringement must be taken into account. If some company tried to not pay its employees, for example, this would obviously not pass constitutional muster.
Conversely, if the SCOTUS had decided the other way around, the harm would be an infringement of the owners' right to free exercise of their religion. This is one of the most fundamental rights protected under the Constitution. This is illustrated by the high level of scrutiny applied to the infringement of such rights. Versus the right of employees of certain corporations to receive a few specific types of easily obtainable birth control through their employer-provided health care plans... the relative weight of harm is clear.
quote:From some of what I've seen of Ginsberg's dissent, though (not the whole thing), isn't this exactly the kind of 'minefield' that she's talking about? That courts are going to end up having to do incredibly complex assessments to decide which cases are "delivery of this is more important than management's personal opinions", and which cases are "management's personal opinions are more important than delivering this service"?
Originally posted by GCabot:
quote:That is not necessarily the case at all. The government's interest in ensuring access to blood transfusions is more compelling, since it is more expensive, there are fewer alternatives that provide the same outcome, etc. Furthermore, one would need to look at the alternative means available to ensure access to blood transfusions, which is likely fewer. Thus, this is a very different analysis that could well have a different outcome.
Originally posted by Matt Black:
But...based on that reasoning, a JW-owned 'closely-held' corporation would be entitled to withhold payment for coverage for blood transfusions. Happy with that?
quote:I don't see it. I can't see how forcing your employees to follow your religious beliefs is part of your free exercise.
Originally posted by GCabot:
Conversely, if the SCOTUS had decided the other way around, the harm would be an infringement of the owners' right to free exercise of their religion.
quote:Some people may well have done. That isn't my contention. My contention is that John Smith the human is a person, whether he is acting in his role as an individual, or in his role as the sole proprietor of John Smith LLC.
Originally posted by mousethief:
We have forgotten that the "personhood" of the corporate is a legal fiction that allows certain legal transactions and so forth, and it is not literal or real.
quote:Yes. That is the whole purpose of incorporating.
Originally posted by Leorning Cniht:
Suppose John Smith were a slumlord. I think we'd all agree that slumlords are pretty scummy people. If I follow your argument, it suggests that we should somehow treat Mr. Smith differently depending on whether he holds his slum properties as his personal property or within a corporation that he owns.
quote:Quite so. But the law isn't about moral culpability but legal culpability. This by the way is one of the reasons I am against corporations as currently defined under the law.
My claim is that there is not one jot of difference between the moral culpability that Mr. Smith has in the two cases.
quote:Again, no, we're talking about legal issues here not moral issues. The SCOTUS doesn't define morality, only legality.
Or consider the trend popular with the rich to own their houses through a holding company (21 Main Street, Inc) rather than directly. It's either a tax or a privacy dodge, but are you suggesting that we should somehow excuse the owner from moral culpability for his actions as a homeowner just because he's slipped a company in the middle?
quote:Agreed, there have been multiple decisions lately saying that employees should view their jobs as separate from any religion (unless they're pharmacists) In other words, they should either do the job or if not wearing a cross or whatever interferes with their religious scruples too much, they should get out. I don't see why the head of Hobby Lobby couldn't have been told that, if his religious beliefs interefered with running his company, then he should find another job.
Originally posted by mousethief:
quote:I don't see it. I can't see how forcing your employees to follow your religious beliefs is part of your free exercise.
Originally posted by GCabot:
Conversely, if the SCOTUS had decided the other way around, the harm would be an infringement of the owners' right to free exercise of their religion.
quote:We're not talking about moral culpability, though, in a court case. We're talking about legal rights. And the very point, as I've said, of corporations law is to say that John Smith and John Smith LLC are two entirely different things.
Originally posted by Leorning Cniht:
Suppose John Smith were a slumlord. I think we'd all agree that slumlords are pretty scummy people. If I follow your argument, it suggests that we should somehow treat Mr. Smith differently depending on whether he holds his slum properties as his personal property or within a corporation that he owns.
My claim is that there is not one jot of difference between the moral culpability that Mr. Smith has in the two cases.
![[Hot and Hormonal]](icon_redface.gif){kind=icon}
]quote:But we're discussing a moral question. You've just agreed that there's no moral difference between the actions of Johnny Slumlord, sole trader and Johnny Slumlord as owner of Slumlord LLC. We agree that it's harder for legal claims to pierce the corporate veil in the case of the LLC, but you're agreeing that Johnny Slumlord doesn't have some kind of moral get-out-of-jail-free card over the actions of Slumlord LLC.
Originally posted by mousethief:
Quite so. But the law isn't about moral culpability but legal culpability.
quote:That is a legal question, not a moral one. It is a legal question about morality, not a moral question about morality. Therein lies the fault in your position.
Originally posted by Leorning Cniht:
The question at stake here is whether an employer should be forced, in the public interest, to do a particular thing that he finds immoral (in this case, pay for certain kinds of contraception).
quote:I agree with both you and Orfeo about the legal issues, and I know what an LLC is. But the case you are making is that Johnny Slumlord shouldn't care that Slumlord LLC is forced to do things that he considers immoral, because Slumlord LLC's actions are not his actions.
Originally posted by Leorning Cniht:
quote:But we're discussing a moral question.
Originally posted by mousethief:
Quite so. But the law isn't about moral culpability but legal culpability.
quote:
I can't see why it should excite anyone so much either way.
quote:No, I'm not.
Originally posted by Leorning Cniht:
I agree with both you and Orfeo about the legal issues, and I know what an LLC is. But the case you are making is that Johnny Slumlord shouldn't care that Slumlord LLC is forced to do things that he considers immoral, because Slumlord LLC's actions are not his actions.
quote:The courts have to use a legal, objective standard of harm. Just because someone "feels" harmed, does not mean they are entitled to redress in the courts.
Originally posted by quetzalcoatl:
But you are defining 'harm' quite narrowly here. What about the fact that some women's reproductive health choices are being described as immoral? I am certainly hearing women saying that they feel shocked and harmed by that judgment.
Women also seem to find that their reproductive health is not just a matter between them and their doctor, but can be vetted by their employer, who can decide what is immoral and what is not.
I find that quite bizarre.
quote:Justice Ginsburg trotted out the parade of horribles argument, but frankly, this is the kind of analysis that courts do all the time. The legal standard of strict scrutiny is not a new concept that was created by RFRA. The entire point of courts is to adjudicate tough decisions, not abrogate their responsibility when things get difficult.
Originally posted by orfeo:
quote:From some of what I've seen of Ginsberg's dissent, though (not the whole thing), isn't this exactly the kind of 'minefield' that she's talking about? That courts are going to end up having to do incredibly complex assessments to decide which cases are "delivery of this is more important than management's personal opinions", and which cases are "management's personal opinions are more important than delivering this service"?
Originally posted by GCabot:
quote:That is not necessarily the case at all. The government's interest in ensuring access to blood transfusions is more compelling, since it is more expensive, there are fewer alternatives that provide the same outcome, etc. Furthermore, one would need to look at the alternative means available to ensure access to blood transfusions, which is likely fewer. Thus, this is a very different analysis that could well have a different outcome.
Originally posted by Matt Black:
But...based on that reasoning, a JW-owned 'closely-held' corporation would be entitled to withhold payment for coverage for blood transfusions. Happy with that?
It's going to be litigation city, and it's going to be based on a weird fiction that selling arts and crafts supplies has a religious basis, and that a company shares characteristics of its owner. The very POINT of corporations law is that a company and its owner are entirely separate.
quote:I do not see how you can possibly construe this as a company "requiring" its employees to follow the employer's religious beliefs. Just because someone is not provided a form of freely available birth control through their employer-provided health care plan, does not equate forcing one's religion upon another. Forcing an employer to violate his conscience by paying for drugs he considers to be abortifacients, however, certainly does infringe on the employer's ability to freely exercise their religion.
Originally posted by mousethief:
quote:I don't see it. I can't see how forcing your employees to follow your religious beliefs is part of your free exercise.
Originally posted by GCabot:
Conversely, if the SCOTUS had decided the other way around, the harm would be an infringement of the owners' right to free exercise of their religion.
quote:Companies do not exist independently in and of themselves. They are owned by their shareholders. In a closely-held company, which is the only type that this ruling applies to, one can easily identify the beliefs of the few shareholders of that company. There is no essential difference between saying "Corp X is paying for birth control" and "Person Y, 100% shareholder of Corp X, is paying for birth control."
Originally posted by Gwai:
The employer is not the company though. The company may have to spend money on birth control, but no employee of the company, including its CEO is being forced to spend any money on it at all.
quote:If people are merely lamenting how they feel personal harm from this decision, then so be it. If they are using their feelings of personal harm as justification for why this decision should legally have come out differently, then one has to look to the legal, objective standard of harm.
Originally posted by quetzalcoatl:
GCabot wrote:
The courts have to use a legal, objective standard of harm. Just because someone "feels" harmed, does not mean they are entitled to redress in the courts.
Yes, I don't know if you've noticed, but we are not in court here. So I think it's OK to use a non-legal idea of 'harm', viz., that quite a lot of women do seem to feel harmed by this ruling, in that it introduces their employer into issues to do with their reproductive health, and gives his religious ideas priority.
quote:Except if I decided that I couldn't comply to the dress code of my workplace for religious reasons, they would be entitled, I think, to set me free to go get another job. Presumably they would if my requirements interefered with doing my job. It seems to me that if the CEO or shareholders of a company cannot continue in their position for religious reasons, they too should have to go find another position.
Originally posted by GCabot:
quote:Companies do not exist independently in and of themselves. They are owned by their shareholders. In a closely-held company, which is the only type that this ruling applies to, one can easily identify the beliefs of the few shareholders of that company. There is no essential difference between saying "Corp X is paying for birth control" and "Person Y, 100% shareholder of Corp X, is paying for birth control."
Originally posted by Gwai:
The employer is not the company though. The company may have to spend money on birth control, but no employee of the company, including its CEO is being forced to spend any money on it at all.
quote:The whole POINT of incorporating is to separate the owners from the corporation. If corporate law doesn't do this, it's not doing its job. If a person wants to apply their personal beliefs to all their business dealings, then they shouldn't incorporate.
Originally posted by GCabot:
quote:Companies do not exist independently in and of themselves. They are owned by their shareholders. In a closely-held company, which is the only type that this ruling applies to, one can easily identify the beliefs of the few shareholders of that company. There is no essential difference between saying "Corp X is paying for birth control" and "Person Y, 100% shareholder of Corp X, is paying for birth control."
Originally posted by Gwai:
The employer is not the company though. The company may have to spend money on birth control, but no employee of the company, including its CEO is being forced to spend any money on it at all.
quote:I would think, that as with disability, the corporation should have to show that they couldn't make reasonable accommodations.
Originally posted by Gwai:
Except if I decided that I couldn't comply to the dress code of my workplace for religious reasons, they would be entitled, I think, to set me free to go get another job. Presumably they would if my requirements interefered with doing my job.
quote:There is certainly an essential difference between Corp X owes me a million dollars, and person Y, 100% shareholder of Corp X, owes me a million dollars. Likewise, there is an essential difference between person Y was criminally negligent and corp X was criminally negligent. I can't see why the case of paying for birth control is any different.
Originally posted by GCabot:
There is no essential difference between saying "Corp X is paying for birth control" and "Person Y, 100% shareholder of Corp X, is paying for birth control."
quote:Wow. I was unaware that you had such intimate knowledge of the gynecological and financial circumstances of every single one of Hobby Lobby's present & future employees.
Originally posted by GCabot:
Without going into legal technicalities, this boils down to the harm caused to each side.
With the way the SCOTUS ruled, the employees of this closely-held corporation are not provided coverage for four types of birth control. This does not significantly hamper the employees' access to birth control. Hobby Lobby still covers all sixteen other forms of birth control recognized by the FDA. The four types that are not provided are not something that is hard to find or too expensive for employees to afford on their own, i.e., there are numerous other means of ensuring access to these types of birth control, if necessary, than requiring employers to provide them.
quote:No, it's about the religious freedom of a corporation vs. the religious freedom of the individual. If Hobby Lobby can correctly claim that birth control is a "moral or religious" matter, then it is a moral or religious matter for their employees as well. And because, in this country, regrettably, health care is bound to employment, it means that SCOTUS has determined that the corporations religious freedom is more important than the employee's.
Originally posted by GCabot:
Without going into legal technicalities, this boils down to the harm caused to each side.
...Conversely, if the SCOTUS had decided the other way around, the harm would be an infringement of the owners' right to free exercise of their religion. This is one of the most fundamental rights protected under the Constitution. This is illustrated by the high level of scrutiny applied to the infringement of such rights. Versus the right of employees of certain corporations to receive a few specific types of easily obtainable birth control through their employer-provided health care plans... the relative weight of harm is clear.
quote:Birth control is not cheap nor is it "easily obtainable", particularly the forms not covered by Hobby Lobby. The same groups siding with Hobby Lobby are the ones picketing to force Planned Parenthood from receiving funding or setting up shop in their communities.
Originally posted by GCabot:
This is illustrated by the high level of scrutiny applied to the infringement of such rights. Versus the right of employees of certain corporations to receive a few specific types of easily obtainable birth control through their employer-provided health care plans... the relative weight of harm is clear.
quote:When a company provides food or shelter, often the salary is less as a result. When a company does not provide food/shelter, the greater salary allows the employee the freedom to purchase those things on the free marketplace. Which is why salaries are usually higher in cities where housing or food is more expensive.
Originally posted by GCabot:
quote:Companies do not exist independently in and of themselves. They are owned by their shareholders. In a closely-held company, which is the only type that this ruling applies to, one can easily identify the beliefs of the few shareholders of that company. There is no essential difference between saying "Corp X is paying for birth control" and "Person Y, 100% shareholder of Corp X, is paying for birth control."
Originally posted by Gwai:
The employer is not the company though. The company may have to spend money on birth control, but no employee of the company, including its CEO is being forced to spend any money on it at all.
As to the larger discussion, let me posit this:
Some companies provide their employees with free meals. Some provide them with company housing at no cost. Clearly, the right to food and shelter are more basic, fundamental rights than the right to a few specific types of birth control. Since most companies do not provide either food or shelter for free, should we be outraged at their gall? Is this really infringing on the employees' personal autonomy or imposing the employer's personal beliefs on the employees?
Both food and shelter are widely available, even if the employer does not provide them. The fact that the employer does not provide them does not preclude the employee from getting food or shelter. Similarly, just because Hobby Lobby does not pay for coverage to its employees of a few types of birth control, does not preclude those employees from access to those forms of birth control in any realistic way. It just means they will not be getting them provided by their employer, just as we do not expect our employer to provide many things in life. This is an imposition of another's religious beliefs, how?
quote:Which is to say the chickenshit SCOTUS knew this would just squash it like a bug.
Originally posted by cliffdweller:
Entirely right and true. Problem is, SCOTUS doesn't have to get it thru Congress.
quote:Exactly. I'm glad I kept scrolling to see if you replied. Your first sentence is almost word for word what my first sentence would have been.
Originally posted by mousethief:
quote:The whole POINT of incorporating is to separate the owners from the corporation. If corporate law doesn't do this, it's not doing its job. If a person wants to apply their personal beliefs to all their business dealings, then they shouldn't incorporate.
Originally posted by GCabot:
quote:Companies do not exist independently in and of themselves. They are owned by their shareholders. In a closely-held company, which is the only type that this ruling applies to, one can easily identify the beliefs of the few shareholders of that company. There is no essential difference between saying "Corp X is paying for birth control" and "Person Y, 100% shareholder of Corp X, is paying for birth control."
Originally posted by Gwai:
The employer is not the company though. The company may have to spend money on birth control, but no employee of the company, including its CEO is being forced to spend any money on it at all.
quote:Very good. I never thought of that.
Originally posted by cliffdweller:
That's why we print "In God We Trust" on our money. We're just someone coy about which god that is.
quote:Are you flipping kidding?
Originally posted by GCabot:
... As to this decision opening a floodgate of further litigation, I find that highly doubtful. There is no real evidence to show that there are thousands of potential litigants out there waiting to assert First Amendment protections against their personal conscience in this context. ...
quote:Hobby Lobby does invest in birth control
... Employees have the option to put their retirement dollars -- and the money that Hobby Lobby contributes on their behalf -- into over a dozen different mutual funds.
At least eight of those funds have been invested in companies that produce contraceptives such as Teva Pharmaceutical (TEVA), Bayer (BAYRY), and Pfizer (PFE), according to a CNNMoney analysis. Teva makes Plan B. At least one fund also held Forest Laboratories, which makes a drug that is used to induce abortions. ...
quote:According to the Internal Revenue Service:
Originally posted by orfeo:
(Can someone tell me where this "closely held" terminology comes from? Is it in US legislation somewhere, or has it just developed in US case law?)
quote:(From Wikipedia, "Personal services include any activity performed in the fields of accounting, actuarial science, architecture, consulting, engineering, health (including veterinary services), law, and the performing arts.")
Generally, a closely held corporation is a corporation that:
•Has more than 50% of the value of its outstanding stock owned (directly or indirectly) by 5 or fewer individuals at any time during the last half of the tax year; and
•Is not a personal service corporation.
quote:
Some imagine closely held corporations as family-run small business. Actually, closely held corporations make up more than 90 percent of the businesses in this country. They employ 52 percent of the labor force, and the 224 largest closely held corporations had combined revenues of $1.6 trillion in 2013. Some of these companies include Dell, Toys ‘R’ Us, Heinz, Dole Foods, Petco, Stater Bros and yes, even Koch Industries.
quote:So pretty much the same as in the earlier IRS page (with more detail about what an "individual" is) - and yes, a definition established for tax law.
At any time during the last half of the taxable year more than 50 percent in value of its outstanding stock is owned, directly or indirectly, by or for not more than 5 individuals. For purposes of this paragraph, an organization described in section 401 (a), 501 (c)(17), or 509 (a) or a portion of a trust permanently set aside or to be used exclusively for the purposes described in section 642 (c) or a corresponding provision of a prior income tax law shall be considered an individual.
quote:We are talking about owners, not management, though they may sometimes be one and the same. The only parallel would be forcing the owners to sell their company. That is not a reasonable solution.
Originally posted by Gwai:
quote:Except if I decided that I couldn't comply to the dress code of my workplace for religious reasons, they would be entitled, I think, to set me free to go get another job. Presumably they would if my requirements interefered with doing my job. It seems to me that if the CEO or shareholders of a company cannot continue in their position for religious reasons, they too should have to go find another position.
Originally posted by GCabot:
quote:Companies do not exist independently in and of themselves. They are owned by their shareholders. In a closely-held company, which is the only type that this ruling applies to, one can easily identify the beliefs of the few shareholders of that company. There is no essential difference between saying "Corp X is paying for birth control" and "Person Y, 100% shareholder of Corp X, is paying for birth control."
Originally posted by Gwai:
The employer is not the company though. The company may have to spend money on birth control, but no employee of the company, including its CEO is being forced to spend any money on it at all.
quote:Yes. I agree with this entirely. This is why I think the "corporations aren't people" snark is missing the point. It (should be) about the religion of the owner, rather than any mythical idea of the company's religion. That's why the SCOTUS ruling is limited to closely-held companies - ones where the company is owned and controlled by 5 or fewer people. These are, essentially, companies that are owned by an individual or a family.
Originally posted by orfeo:
My issue is that it's absolutely crucial to a correct legal outcome that the question be framed as "does this impose a burden on the individual that owns the employer that will conflict with the owner's religion", not "does this impose a burden on the employer that will conflict with the employer's religion".
quote:There are many reasons why it may be advantageous to incorporate, not merely liability protection. Furthermore, the purpose of a corporation is not necessarily purely to make profit. Many corporations have articles of incorporation that provide for a broader business focus. This is especially common when the corporation is closely held.
Originally posted by mousethief:
quote:The whole POINT of incorporating is to separate the owners from the corporation. If corporate law doesn't do this, it's not doing its job. If a person wants to apply their personal beliefs to all their business dealings, then they shouldn't incorporate.
Originally posted by GCabot:
quote:Companies do not exist independently in and of themselves. They are owned by their shareholders. In a closely-held company, which is the only type that this ruling applies to, one can easily identify the beliefs of the few shareholders of that company. There is no essential difference between saying "Corp X is paying for birth control" and "Person Y, 100% shareholder of Corp X, is paying for birth control."
Originally posted by Gwai:
The employer is not the company though. The company may have to spend money on birth control, but no employee of the company, including its CEO is being forced to spend any money on it at all.
quote:Both of these deal with corporate liability. The distinction you are making goes to one of the core characteristics of a corporation. There is nothing inherent in the corporate form, however, that builds a Chinese wall between a corporation and its owners. There is nothing that requires a corporation to be wholly independent of the beliefs, religious or otherwise, of its owners.
Originally posted by Dafyd:
quote:There is certainly an essential difference between Corp X owes me a million dollars, and person Y, 100% shareholder of Corp X, owes me a million dollars. Likewise, there is an essential difference between person Y was criminally negligent and corp X was criminally negligent. I can't see why the case of paying for birth control is any different.
Originally posted by GCabot:
There is no essential difference between saying "Corp X is paying for birth control" and "Person Y, 100% shareholder of Corp X, is paying for birth control."
If you think there shouldn't be an essential difference you're really arguing against the existence of corporations as they currently function.
quote:Are you questioning why they distinguish closely-held businesses generally from those with many shareholders, or why they specifically draw a line between five and six? If it is the latter, it is just the SCOTUS drawing a convenient line where one is already defined by the IRS. This is mostly for practical purposes of administration.
Originally posted by Dave W.:
The term "closely held" is frequently used in the majority opinion ( here, with Justice Kennedy's concurrence and the dissents) but I don't see where they explain exactly why the Religious Freedom Restoration Act should apply to corporations that have five owners but not to those that have six or more. The RFRA itself doesn't make the distinction - it only says "persons."
quote:This is false. The Pill compromises exactly three of the sixteen forms of birth control covered. I challenge you to find a single person who is only able to use Plan B, Ella, and/or IUDs, and is unable to take advantage of any of the sixteen covered forms of birth control.
Originally posted by cliffdweller:
quote:Wow. I was unaware that you had such intimate knowledge of the gynecological and financial circumstances of every single one of Hobby Lobby's present & future employees.
Originally posted by GCabot:
Without going into legal technicalities, this boils down to the harm caused to each side.
With the way the SCOTUS ruled, the employees of this closely-held corporation are not provided coverage for four types of birth control. This does not significantly hamper the employees' access to birth control. Hobby Lobby still covers all sixteen other forms of birth control recognized by the FDA. The four types that are not provided are not something that is hard to find or too expensive for employees to afford on their own, i.e., there are numerous other means of ensuring access to these types of birth control, if necessary, than requiring employers to provide them.
Seriously, how could you possibly know that? fyi: There are all sorts of medical circumstances that would prevent a woman from using the Pill (which comprises most of the 16 forms of birth control Hobby Lobby deems acceptable to pay for). I don't know about where you live, but there are not a whole lot of discount drive-thru IUD facilities in my part of the US.
quote:The two are not in any way analogous. The issue here is not “whether or not this is a religious/moral matter,” wherein each party’s religious beliefs should be taken into account. The issue here is whether the rights of the parties under the Free Exercise Clause are implicated. The ACA requires employers to actively do something that may be against their personal conscience. Whether an employer does or does not provide these four specific types of birth control, neither case requires the employees to do anything. By necessity, the exercise of religious rights requires an active act. Unless there is a religion with the core tenant that employers must provide health care coverage that includes these specific types of birth control, I do not see how you can claim the religious free exercise rights of the employees are infringed.
Originally posted by cliffdweller:
quote:No, it's about the religious freedom of a corporation vs. the religious freedom of the individual. If Hobby Lobby can correctly claim that birth control is a "moral or religious" matter, then it is a moral or religious matter for their employees as well. And because, in this country, regrettably, health care is bound to employment, it means that SCOTUS has determined that the corporations religious freedom is more important than the employee's.
Originally posted by GCabot:
Without going into legal technicalities, this boils down to the harm caused to each side.
...Conversely, if the SCOTUS had decided the other way around, the harm would be an infringement of the owners' right to free exercise of their religion. This is one of the most fundamental rights protected under the Constitution. This is illustrated by the high level of scrutiny applied to the infringement of such rights. Versus the right of employees of certain corporations to receive a few specific types of easily obtainable birth control through their employer-provided health care plans... the relative weight of harm is clear.
quote:Again, if the problem is physical access, then whether the form of birth control is covered or not is irrelevant. As for cost, Plan B and Ella are both approximately $50. IUD’s run several hundred dollars up front, but last for a decade or more. Neither of these can be considered expensive, and if cost it the main concern, one can use one of the other forms of birth control that is covered, and likely more available, in any case. Furthermore, there is nothing to stop a company from merely providing employees with an increase in salary or other benefits of comparable value to any lost coverage.
Originally posted by cliffdweller:
quote:Birth control is not cheap nor is it "easily obtainable", particularly the forms not covered by Hobby Lobby. The same groups siding with Hobby Lobby are the ones picketing to force Planned Parenthood from receiving funding or setting up shop in their communities.
Originally posted by GCabot:
This is illustrated by the high level of scrutiny applied to the infringement of such rights. Versus the right of employees of certain corporations to receive a few specific types of easily obtainable birth control through their employer-provided health care plans... the relative weight of harm is clear.
quote:You fundamentally misunderstand the ruling. Nowhere in the decision did the SCOTUS affirm that the interest in ensuring women have access to birth control trumps First Amendment rights. The Court does not specifically “weigh” the two sides; the language I previously used was meant to describe the process simplistically. Once RFRA applies, the Court merely decides if (1) the Government has a compelling interest in infringing on First Amendment Rights; and (2) the Government has used the least restrictive means to achieve that end. If the Government passes both of these tests, the law is upheld. It is not a contest between “which side is more compelling.”
Originally posted by cliffdweller:
In their majority decision SCOTUS rightly pointed out the very liberal notion that the State does have a compelling interest in insuring women have access to birth control, and in fact even affirmed that that compelling interest trumps the religious freedom of the corporation. Their ruling was based on the secondary finding-- that the contraception mandate was not the "least restrictive" way of achieving that.
quote:If Hobby Lobby had chosen the “option” of not providing health insurance, they would have been hit with a massive punitive financial penalty that would likely have put them out of business. In that scenario, the employees would lose their health plans entirely. It is silly to try and make the argument that this lawsuit was really driven by greedy owners seeking to save on their tax bill.
Originally posted by cliffdweller:
quote:When a company provides food or shelter, often the salary is less as a result. When a company does not provide food/shelter, the greater salary allows the employee the freedom to purchase those things on the free marketplace. Which is why salaries are usually higher in cities where housing or food is more expensive.
Originally posted by GCabot:
quote:Companies do not exist independently in and of themselves. They are owned by their shareholders. In a closely-held company, which is the only type that this ruling applies to, one can easily identify the beliefs of the few shareholders of that company. There is no essential difference between saying "Corp X is paying for birth control" and "Person Y, 100% shareholder of Corp X, is paying for birth control."
Originally posted by Gwai:
The employer is not the company though. The company may have to spend money on birth control, but no employee of the company, including its CEO is being forced to spend any money on it at all.
As to the larger discussion, let me posit this:
Some companies provide their employees with free meals. Some provide them with company housing at no cost. Clearly, the right to food and shelter are more basic, fundamental rights than the right to a few specific types of birth control. Since most companies do not provide either food or shelter for free, should we be outraged at their gall? Is this really infringing on the employees' personal autonomy or imposing the employer's personal beliefs on the employees?
Both food and shelter are widely available, even if the employer does not provide them. The fact that the employer does not provide them does not preclude the employee from getting food or shelter. Similarly, just because Hobby Lobby does not pay for coverage to its employees of a few types of birth control, does not preclude those employees from access to those forms of birth control in any realistic way. It just means they will not be getting them provided by their employer, just as we do not expect our employer to provide many things in life. This is an imposition of another's religious beliefs, how?
But in this country, access to health care is still tied to employment. Employees with employer-provided health insurance are not able to shop for insurance on the exchanges, except under very narrow circumstances (I know this because I had hoped to do so myself). Most employer-provided health insurance dings the employee quite a bit for their coverage. All of which impacts the ability of the employee to pay a la carte for an expensive medical service.
Hobby Lobby had the option of not providing health insurance, freeing their employees up to purchase it on the exchange. But they wanted the tax break. So they're trying to have it both ways-- at the expense of their employees.
quote:The Government pretty much conceded this argument because it was an incredibly weak argument to begin with, and they knew it. One can argue over the appropriateness of treating corporations as persons, but the pertinent question for the Court was whether Congress intended to include corporations when they wrote RFRA.
Originally posted by Leorning Cniht:
Having said all that, there are plenty of things I find nutty about this case, not least of which is that the government agreed with Hobby Lobby that corporations are "people" under the terms of the Religious Freedom Restoration Act. Which is stupid, like all the rest of the assumptions that result from treating corporations as people, but I think ultimately has the same effect as were one to frame the laws and questions in a rational way, as Orfeo suggests above.
Once the government concedes that, under the RFRA, corporations are people, you come down to exactly the stand-up fight between the religious rights of the owners and the healthcare rights of the employees that you come to if you frame the discussion as one about actual human people.
quote:My thanks for the extra homework. Which seems to confirm that they've taken an idea developed for the purposes of tax policy (an idea which I have no problem with in and of itself) and randomly decided that if a company has different tax filing requirements, it can also have religious beliefs.
Originally posted by Dave W.:
I've mostly found the term defined in instructions for IRS forms like this one, which is pretty much the same as in that web page.
A Google search on the terms "USC closely held corporation" leads to specific tax law citations in the United States Code (USC):
Title 26, section 469 says "The term “closely held C corporation” means any C corporation described in section 465 (a) (1) (B)" ...
... in turn which refers to " a C corporation with respect to which the stock ownership requirement of paragraph (2) of section 542 (a) is met"...
... and that requirement is:quote:So pretty much the same as in the earlier IRS page (with more detail about what an "individual" is) - and yes, a definition established for tax law.
At any time during the last half of the taxable year more than 50 percent in value of its outstanding stock is owned, directly or indirectly, by or for not more than 5 individuals. For purposes of this paragraph, an organization described in section 401 (a), 501 (c)(17), or 509 (a) or a portion of a trust permanently set aside or to be used exclusively for the purposes described in section 642 (c) or a corresponding provision of a prior income tax law shall be considered an individual.
The term "closely held" is frequently used in the majority opinion ( here, with Justice Kennedy's concurrence and the dissents) but I don't see where they explain exactly why the Religious Freedom Restoration Act should apply to corporations that have five owners but not to those that have six or more. The RFRA itself doesn't make the distinction - it only says "persons."
quote:But it's still entirely wrong in principle to apply a religious test to a company. That's my point. The point you say you agree with entirely. A ruling that a company has a religious belief is fundamentally incompatible with the point I'm making.
Originally posted by Leorning Cniht:
quote:Yes. I agree with this entirely. This is why I think the "corporations aren't people" snark is missing the point. It (should be) about the religion of the owner, rather than any mythical idea of the company's religion. That's why the SCOTUS ruling is limited to closely-held companies - ones where the company is owned and controlled by 5 or fewer people. These are, essentially, companies that are owned by an individual or a family.
Originally posted by orfeo:
My issue is that it's absolutely crucial to a correct legal outcome that the question be framed as "does this impose a burden on the individual that owns the employer that will conflict with the owner's religion", not "does this impose a burden on the employer that will conflict with the employer's religion".
quote:It only appears random because you do not understand its purpose.
Originally posted by orfeo:
quote:My thanks for the extra homework. Which seems to confirm that they've taken an idea developed for the purposes of tax policy (an idea which I have no problem with in and of itself) and randomly decided that if a company has different tax filing requirements, it can also have religious beliefs.
Originally posted by Dave W.:
I've mostly found the term defined in instructions for IRS forms like this one, which is pretty much the same as in that web page.
A Google search on the terms "USC closely held corporation" leads to specific tax law citations in the United States Code (USC):
Title 26, section 469 says "The term “closely held C corporation” means any C corporation described in section 465 (a) (1) (B)" ...
... in turn which refers to " a C corporation with respect to which the stock ownership requirement of paragraph (2) of section 542 (a) is met"...
... and that requirement is:quote:So pretty much the same as in the earlier IRS page (with more detail about what an "individual" is) - and yes, a definition established for tax law.
At any time during the last half of the taxable year more than 50 percent in value of its outstanding stock is owned, directly or indirectly, by or for not more than 5 individuals. For purposes of this paragraph, an organization described in section 401 (a), 501 (c)(17), or 509 (a) or a portion of a trust permanently set aside or to be used exclusively for the purposes described in section 642 (c) or a corresponding provision of a prior income tax law shall be considered an individual.
The term "closely held" is frequently used in the majority opinion ( here, with Justice Kennedy's concurrence and the dissents) but I don't see where they explain exactly why the Religious Freedom Restoration Act should apply to corporations that have five owners but not to those that have six or more. The RFRA itself doesn't make the distinction - it only says "persons."
Random isn't the only word I'm thinking of to describe it...
quote:Then that ruling is also deficient if it said that non-profit corporations have a religion. Many non-profit corporations are set up for a religious purpose, but that is not the same thing as the corporation possessing a religious belief.
Originally posted by GCabot:
The Court has already held in the past that RFRA applies to non-profit corporations.
quote:Yes, the owners of a business. I have no problem with determining whether the religious rights of the owners have been violated. I have a massive problem with determining whether the religious rights of the business have been violated. Which is what the majority claim to have done.
Originally posted by GCabot:
The specific pertinent legal issue in this case was "Whether the religious owners of a family business, or their closely-held business corporation, have free exercise rights that are violated by the application of the contraceptive-coverage Mandate of the Patient Protection and Affordable Care Act of 2010 (“ACA”)." That is why the decision only addresses closely-held corporations.
quote:I do not understand the point of conjecture. The plaintiffs are the corporations, not the owners as individuals, because the corporations were the ones that filed the lawsuit. The corporations indisputably have Article III standing and since RFRA applies to corporations, as I explained above, the corporations here may act as “persons exercising religion,” in that they are exercising the religion of their owners.
Originally posted by orfeo:
quote:But it's still entirely wrong in principle to apply a religious test to a company. That's my point. The point you say you agree with entirely. A ruling that a company has a religious belief is fundamentally incompatible with the point I'm making.
Originally posted by Leorning Cniht:
quote:Yes. I agree with this entirely. This is why I think the "corporations aren't people" snark is missing the point. It (should be) about the religion of the owner, rather than any mythical idea of the company's religion. That's why the SCOTUS ruling is limited to closely-held companies - ones where the company is owned and controlled by 5 or fewer people. These are, essentially, companies that are owned by an individual or a family.
Originally posted by orfeo:
My issue is that it's absolutely crucial to a correct legal outcome that the question be framed as "does this impose a burden on the individual that owns the employer that will conflict with the owner's religion", not "does this impose a burden on the employer that will conflict with the employer's religion".
There should never have been a court case applying that Religious Freedom Restoration Act called Burwell v Hobby Lobby. There should only have been a court case called Burwell v Green.
If it's about the religion of the owner, then the owner should be the plaintiff.
And yes, I'm aware that the individual people appear to have been joined in the case. But the headline name is a company, and a company cannot have a religion and cannot possibly have a right under the RFRA to exercise its religion.
When I see the majority statement that they gave RFRA rights to a company to protect the rights of the owning individuals, my immediate response is that the court ought to have been actually protecting the rights of the owning individuals. So why didn't they do that? Is it because they realised the rights of the owning individuals weren't actually infringed in a legal sense? As opposed to some kind of moral sense?
I suspect so. And if that suspicion is correct, this is one of the poorest demonstrations of judges twisting the reasoning to get the result they wanted that I've seen in quite a while.
quote:You are making a distinction without a difference. When a corporation is set up for a religious purpose, it is done so through its articles of incorporation and bylaws. These documents govern how the corporation shall be run. When a corporation acts a certain way because of the religious dictates given to it, it is exercising religion in and of itself.
Originally posted by orfeo:
quote:Then that ruling is also deficient if it said that non-profit corporations have a religion. Many non-profit corporations are set up for a religious purpose, but that is not the same thing as the corporation possessing a religious belief.
Originally posted by GCabot:
The Court has already held in the past that RFRA applies to non-profit corporations.
quote:We have a similar category here for tax reasons eg: inheritance tax breaks.
Originally posted by Dave W.:
quote:According to the Internal Revenue Service:
Originally posted by orfeo:
(Can someone tell me where this "closely held" terminology comes from? Is it in US legislation somewhere, or has it just developed in US case law?)
quote:(From Wikipedia, "Personal services include any activity performed in the fields of accounting, actuarial science, architecture, consulting, engineering, health (including veterinary services), law, and the performing arts.")
Generally, a closely held corporation is a corporation that:
•Has more than 50% of the value of its outstanding stock owned (directly or indirectly) by 5 or fewer individuals at any time during the last half of the tax year; and
•Is not a personal service corporation.
"Closely-held" does not necessarily mean small. From a Washington Post web page:
quote:
Some imagine closely held corporations as family-run small business. Actually, closely held corporations make up more than 90 percent of the businesses in this country. They employ 52 percent of the labor force, and the 224 largest closely held corporations had combined revenues of $1.6 trillion in 2013. Some of these companies include Dell, Toys ‘R’ Us, Heinz, Dole Foods, Petco, Stater Bros and yes, even Koch Industries.
quote:The fact that you filed a lawsuit does not mean you have entitlement to what you claim in the lawsuit. Cases are frequently decided against plaintiffs on the basis that, even if all the facts they contend are found in their favour, the facts cannot form the grounds for the type of relief they are claiming.
Originally posted by GCabot:
I do not understand the point of conjecture. The plaintiffs are the corporations, not the owners as individuals, because the corporations were the ones that filed the lawsuit.
quote:"In that they" means that they are not, in fact, the possessors of the religion.
The corporations indisputably have Article III standing and since RFRA applies to corporations, as I explained above, the corporations here may act as “persons exercising religion,” in that they are exercising the religion of their owners.
quote:You could not be more wrong. I am basing my analysis off 5 years of legal study and 13 years working in the law, the last 6 of them as a drafter of legislation.
Your problem is that you are basing your analysis off of your personal beliefs rather than the law.
quote:What I am doing is articulating the legal orthodoxy in most common law countries, and wondering why on earth the United States is taking such a profoundly different route. I can tell you with some confidence that if a litigant in Australia tried to cite something like this as precedent, our High Court would slap them down.
What you and your comrades should be doing is promoting change in the law itself, rather than blaming the courts for correctly applying the law.
quote:Perhaps it is exercising religion, but it is not exercising ITS religion. A religious belief belongs to someone. The someone it belongs to is not the corporation, it is the owner of the corporation.
Originally posted by GCabot:
quote:You are making a distinction without a difference. When a corporation is set up for a religious purpose, it is done so through its articles of incorporation and bylaws. These documents govern how the corporation shall be run. When a corporation acts a certain way because of the religious dictates given to it, it is exercising religion in and of itself.
Originally posted by orfeo:
quote:Then that ruling is also deficient if it said that non-profit corporations have a religion. Many non-profit corporations are set up for a religious purpose, but that is not the same thing as the corporation possessing a religious belief.
Originally posted by GCabot:
The Court has already held in the past that RFRA applies to non-profit corporations.
quote:Those two questions are the same - that's the essential characteristic of a closely held business.
Originally posted by GCabot:
quote:Are you questioning why they distinguish closely-held businesses generally from those with many shareholders, or why they specifically draw a line between five and six?
Originally posted by Dave W.:
The term "closely held" is frequently used in the majority opinion ( here, with Justice Kennedy's concurrence and the dissents) but I don't see where they explain exactly why the Religious Freedom Restoration Act should apply to corporations that have five owners but not to those that have six or more. The RFRA itself doesn't make the distinction - it only says "persons."
quote:"Practical purposes of administration"? That seems unlikely in an opinion that is so solicitous of essential religious freedoms.
If it is the latter, it is just the SCOTUS drawing a convenient line where one is already defined by the IRS. This is mostly for practical purposes of administration.
quote:Sorry, I do not think I was very clear. Your question could either have meant:
Originally posted by Dave W.:
quote:Those two questions are the same - that's the essential characteristic of a closely held business.
Originally posted by GCabot:
quote:Are you questioning why they distinguish closely-held businesses generally from those with many shareholders, or why they specifically draw a line between five and six?
Originally posted by Dave W.:
The term "closely held" is frequently used in the majority opinion ( here, with Justice Kennedy's concurrence and the dissents) but I don't see where they explain exactly why the Religious Freedom Restoration Act should apply to corporations that have five owners but not to those that have six or more. The RFRA itself doesn't make the distinction - it only says "persons."quote:"Practical purposes of administration"? That seems unlikely in an opinion that is so solicitous of essential religious freedoms.
If it is the latter, it is just the SCOTUS drawing a convenient line where one is already defined by the IRS. This is mostly for practical purposes of administration.
Where is this stated in the opinion?
quote:This seems a bit artificial, like noting that since the plaintiffs are right handed that the precedent involved does not apply to left handed persons. There doesn't seem to be any reason given in Burwell v. Hobby Lobby as to why a publicly traded company couldn't have a shareholder's vote to join the Church of No Minimum Wage and argue that the applicable labor laws infringe on their religious freedom.
Originally posted by GCabot:
The specific reason why the SCOTUS’ decision applies only to closely-held corporations, is because those were the plaintiffs and that was the specific issue at hand. They issued a narrow ruling and did not come to a legal conclusion on whether companies with more than five shareholders would also have prevailed under the same set of facts.
quote:Since that's not a standard set by a court, at least in the U.S., that's a particularly bad example.
Originally posted by GCabot:
Generally speaking, however, when a court draws a bright line, it is quite arbitrary. Take, for example, the idea that one should not be able to vote until they are eighteen-years-old.
quote:Yes, that is why I explicitly explained to you why the corporations here would have legal standing to file such a lawsuit and why they are able to seek redress under RFRA, as quoted above.
Originally posted by orfeo:
quote:The fact that you filed a lawsuit does not mean you have entitlement to what you claim in the lawsuit. Cases are frequently decided against plaintiffs on the basis that, even if all the facts they contend are found in their favour, the facts cannot form the grounds for the type of relief they are claiming.
Originally posted by GCabot:
I do not understand the point of conjecture. The plaintiffs are the corporations, not the owners as individuals, because the corporations were the ones that filed the lawsuit.
quote:
The corporations indisputably have Article III standing and since RFRA applies to corporations, as I explained above, the corporations here may act as “persons exercising religion,” in that they are exercising the religion of their owners.
quote:Again, this is a distinction without a difference. There is no legal meaning to “possessing” religion. What is relevant is that the corporations are exercising religion.
Originally posted by orfeo:
"In that they" means that they are not, in fact, the possessors of the religion.
quote:
Originally posted by orfeo:
quote:You could not be more wrong. I am basing my analysis off 5 years of legal study and 13 years working in the law, the last 6 of them as a drafter of legislation.
Your problem is that you are basing your analysis off of your personal beliefs rather than the law.
If I elided the distinction between a corporation and the individuals who own it, my supervisor would gently point out the fault and get me to correct it. If I repeatedly elided the distinction between a corporation and the individuals who own it, my bosses would eventually push me out the door on the grounds that I clearly didn't have a head for the kind of analysis required to develop legal concepts correctly.
quote:Exactly. You are basing your analysis off of your understanding of Australian law. Clearly, there are significant differences between our two countries regarding the legal status and rights of corporations. Why you believe that “legal orthodoxy” in any other country would have any bearing on American law, is perplexing.
Originally posted by orfeo:
quote:What I am doing is articulating the legal orthodoxy in most common law countries, and wondering why on earth the United States is taking such a profoundly different route. I can tell you with some confidence that if a litigant in Australia tried to cite something like this as precedent, our High Court would slap them down.
What you and your comrades should be doing is promoting change in the law itself, rather than blaming the courts for correctly applying the law.
quote:Again, you seem to fundamentally misunderstand American law. Perhaps they do not have the legal concept of corporate personhood in Australia, or it is vastly different than how we understand it here. Regardless, I have already explained at length exactly how a corporation can legally be considered to exercise religion in this country.
Originally posted by orfeo:
quote:Perhaps it is exercising religion, but it is not exercising ITS religion. A religious belief belongs to someone. The someone it belongs to is not the corporation, it is the owner of the corporation.
Originally posted by GCabot:
quote:You are making a distinction without a difference. When a corporation is set up for a religious purpose, it is done so through its articles of incorporation and bylaws. These documents govern how the corporation shall be run. When a corporation acts a certain way because of the religious dictates given to it, it is exercising religion in and of itself.
Originally posted by orfeo:
quote:Then that ruling is also deficient if it said that non-profit corporations have a religion. Many non-profit corporations are set up for a religious purpose, but that is not the same thing as the corporation possessing a religious belief.
Originally posted by GCabot:
The Court has already held in the past that RFRA applies to non-profit corporations.
Relational definitions are important. Again, this is something I spend large amounts of my working life on. "Religious belief" in the abstract is a completely different concept from "Religious belief of..." Of who? Of what? Can a thing HAVE a religious belief?
quote:I have no idea what you are trying to get at here. I have already explained the distinction regarding corporate exercise of religious rights and individual exercise. RFRA and legal precedent are very clear here.
Originally posted by orfeo:
The RFRA speaks of "a person's exercise of religion" and "a person whose religious exercise has been burdened". If you want to argue that this include a corporation's exercise of its owners religion, then you equally have to accept that it applies to my exercise of your religion, mousethief's exercise of croesos' religion, quetzalcoatl's exercise of his mother-in-law's religion and the Defense Secretary's exercise of the President's religion. I suggest that that is a rather unnatural reading of the provision and will cause unimaginable headaches.
quote:Your assumption that the drafters of the law made a horrendous mistake and actually meant to exclude corporations is almost certainly erroneous, given that all the evidence points to the opposite conclusion.
Originally posted by orfeo:
Frankly, if you had proper drafters who didn't use passive voice none of this would have happened.
quote:This does not make any sense. One could theoretically posit a company solely owned by a Christian but whose religious principles are exclusively Hindu, but not only is it improbable such a company would ever exist, but one might easily question whether the company’s assertion of RFRA rights under the Hindu religion was sincere, given that its owner is a Christian.
Originally posted by orfeo:
To put it succinctly, if that is the correct meaning of the RFRA, I can seek relief on the grounds that the government has burdened my exercise of Hindu religion despite being a Christian.
Because that is what is involved in a corporation seeking relief: it is seeking relief for the burden on one person's exercise of another person's religion. The exercise belongs to one person (the corporation), and the religion belongs to another (the shareholder).
quote:That seems to be contradictory. If it's the corporation seeking redress, why not examine the corportation's sincerity instead of the owners?
Originally posted by GCabot:
quote:This does not make any sense. One could theoretically posit a company solely owned by a Christian but whose religious principles are exclusively Hindu, but not only is it improbable such a company would ever exist, but one might easily question whether the company’s assertion of RFRA rights under the Hindu religion was sincere, given that its owner is a Christian.
Originally posted by orfeo:
To put it succinctly, if that is the correct meaning of the RFRA, I can seek relief on the grounds that the government has burdened my exercise of Hindu religion despite being a Christian.
I will reiterate that it is the company itself that seeks redress; its rights are not dependent on an infringement on the right to free exercise of the owners as individuals. Courts look to the individuals only as they function as owners of the company. The owners are looked at since they direct the religious beliefs of the company. The purpose of looking to the owners’ religious beliefs is as evidence of sincerity, [i.e.], ensuring that a corporation’s assertion of religious belief is not merely a pretext for financial gain.
quote:The courts generally do not give opinions on issues not present in the case before them. They may set down principles for future cases, but they constrain themselves to the facts at hand rather than engaging in pure hypotheticals. That is not the function of the courts.
Originally posted by Crœsos:
quote:This seems a bit artificial, like noting that since the plaintiffs are right handed that the precedent involved does not apply to left handed persons. There doesn't seem to be any reason given in Burwell v. Hobby Lobby as to why a publicly traded company couldn't have a shareholder's vote to join the Church of No Minimum Wage and argue that the applicable labor laws infringe on their religious freedom.
Originally posted by GCabot:
The specific reason why the SCOTUS’ decision applies only to closely-held corporations, is because those were the plaintiffs and that was the specific issue at hand. They issued a narrow ruling and did not come to a legal conclusion on whether companies with more than five shareholders would also have prevailed under the same set of facts.
quote:The purpose of the example was to show why what appear to be arbitrary lines are sometimes drawn within the law. In the example, it was directly written in by Congress. Other times, it is the result of courts interpreting law. The principle remains the same.
Originally posted by Crœsos:
quote:Since that's not a standard set by a court, at least in the U.S., that's a particularly bad example.
Originally posted by GCabot:
Generally speaking, however, when a court draws a bright line, it is quite arbitrary. Take, for example, the idea that one should not be able to vote until they are eighteen-years-old.
quote:How does one go about examining the sincerity of a corporation's religious beliefs? One looks to the owners, who set forth the religious principles governing the corporation.
Originally posted by Crœsos:
That seems to be contradictory. If it's the corporation seeking redress, why not examine the corportation's sincerity instead of the owners?
quote:Why ever not? If they can't follow their religious beliefs and be good owners then hell yes they should sell their company. Just like someone who needs to wear a full burqa may not be able to work face-to-face hard-selling product. She can say that she should be able to, but I doubt that would be practical. I would say her bosses shouldn't have to put up with the resulting drop in sales. Similarly, I think part of what an employer does in this country is provide full healthcare (not just covering things that feel good) so if the owner can't do that, he should sell the company. I wouldn't pressure the woman in the burqa to stop covering (if it were really her desire to do so) and I won't pressure the head of Hobby Lobby to pay for what he doesn't believe in. But if he can't do the job, he needs to find another.
Originally posted by GCabot:
quote:We are talking about owners, not management, though they may sometimes be one and the same. The only parallel would be forcing the owners to sell their company. That is not a reasonable solution.
Originally posted by Gwai:
quote:Except if I decided that I couldn't comply to the dress code of my workplace for religious reasons, they would be entitled, I think, to set me free to go get another job. Presumably they would if my requirements interefered with doing my job. It seems to me that if the CEO or shareholders of a company cannot continue in their position for religious reasons, they too should have to go find another position.
Originally posted by GCabot:
quote:Companies do not exist independently in and of themselves. They are owned by their shareholders. In a closely-held company, which is the only type that this ruling applies to, one can easily identify the beliefs of the few shareholders of that company. There is no essential difference between saying "Corp X is paying for birth control" and "Person Y, 100% shareholder of Corp X, is paying for birth control."
Originally posted by Gwai:
The employer is not the company though. The company may have to spend money on birth control, but no employee of the company, including its CEO is being forced to spend any money on it at all.
quote:Since when? I can think of numerous Civil Rights Era cases that dealt with particular discrimination against people of specific racial backgrounds that the courts nonetheless were comfortable using to hold that discrimination against people of any racial background is illegal.
Originally posted by GCabot:
The courts generally do not give opinions on issues not present in the case before them. They may set down principles for future cases, but they constrain themselves to the facts at hand rather than engaging in pure hypotheticals. That is not the function of the courts.
quote:I'm not sure how it would fail. The Church of No Minimum Wage seems to be sincerely felt by many of today's corporations, many of whom have had to flee to places like Bangladesh or China to exercise their faith. It deals with ultimate questions (Q: "What is the worth of a man?", A: "Significantly less than current American minimum wage.") It's comprehensive enough to be the guiding principle in virtually all of the decisions made and actions taken by corporate persons. I'm not sure what constitutes "the outward signs of religion". Stamping the corporate logo on everything? Dressing up for board meetings like some people dress up for church? At any rate, I'm not seeing any of the objections you raise as being insurmountable.
Originally posted by GCabot:
quote:As for your scenario, there is significant case law on what constitutes legitimate, sincerely held religious belief. Generally, religion must be comprehensive, address fundamental/ultimate questions, and exhibit the outwards signs of religion. Sincerity requires significant evidence of true belief, including the length and consistency of belief, to show that it is not mere pretext. The company in your example would clearly fail this test.
Originally posted by Crœsos:
This seems a bit artificial, like noting that since the plaintiffs are right handed that the precedent involved does not apply to left handed persons. There doesn't seem to be any reason given in Burwell v. Hobby Lobby as to why a publicly traded company couldn't have a shareholder's vote to join the Church of No Minimum Wage and argue that the applicable labor laws infringe on their religious freedom.
quote:The idea that it is the job of employers to provide health care is dubious and assuredly not a majority opinion.
Originally posted by Gwai:
quote:Why ever not? If they can't follow their religious beliefs and be good owners then hell yes they should sell their company. Just like someone who needs to wear a full burqa may not be able to work face-to-face hard-selling product. She can say that she should be able to, but I doubt that would be practical. I would say her bosses shouldn't have to put up with the resulting drop in sales. Similarly, I think part of what an employer does in this country is provide full healthcare (not just covering things that feel good) so if the owner can't do that, he should sell the company. I wouldn't pressure the woman in the burqa to stop covering (if it were really her desire to do so) and I won't pressure the head of Hobby Lobby to pay for what he doesn't believe in. But if he can't do the job, he needs to find another.
Originally posted by GCabot:
quote:We are talking about owners, not management, though they may sometimes be one and the same. The only parallel would be forcing the owners to sell their company. That is not a reasonable solution.
Originally posted by Gwai:
quote:Except if I decided that I couldn't comply to the dress code of my workplace for religious reasons, they would be entitled, I think, to set me free to go get another job. Presumably they would if my requirements interefered with doing my job. It seems to me that if the CEO or shareholders of a company cannot continue in their position for religious reasons, they too should have to go find another position.
Originally posted by GCabot:
quote:Companies do not exist independently in and of themselves. They are owned by their shareholders. In a closely-held company, which is the only type that this ruling applies to, one can easily identify the beliefs of the few shareholders of that company. There is no essential difference between saying "Corp X is paying for birth control" and "Person Y, 100% shareholder of Corp X, is paying for birth control."
Originally posted by Gwai:
The employer is not the company though. The company may have to spend money on birth control, but no employee of the company, including its CEO is being forced to spend any money on it at all.
quote:Which was not the point of controversy in the case at hand. The question is whether religious beliefs entitle an employer to pay their workers with sub-standard health insurance and still receive the tax break given to companies that (partially) pay their workers in the form of health insurance. Hobby Lobby essentially wants to have their cake (religiously-based meddling in their employee's medical care) cake and eat it (their tax breaks), too.
Originally posted by GCabot:
The idea that it is the job of employers to provide health care is dubious and assuredly not a majority opinion.
quote:Yes, and many of those decisions violated the principle of judicial restraint, in expanding a decision beyond what was necessary to resolve the dispute at hand. Hence, why I said “generally.”
Originally posted by Crœsos:
quote:Since when? I can think of numerous Civil Rights Era cases that dealt with particular discrimination against people of specific racial backgrounds that the courts nonetheless were comfortable using to hold that discrimination against people of any racial background is illegal.
Originally posted by GCabot:
The courts generally do not give opinions on issues not present in the case before them. They may set down principles for future cases, but they constrain themselves to the facts at hand rather than engaging in pure hypotheticals. That is not the function of the courts.
quote:You are free to look up the case law surrounding this issue. Suffice it to say, you are grasping at straws if you are trying to seriously put forth the idea of “no minimum wage” as a religion. Just because one has a strong sincere belief on a particular issue, does not make that into a religion. I am not going to explain the difference if you honestly cannot understand this distinction.
Originally posted by Crœsos:
quote:I'm not sure how it would fail. The Church of No Minimum Wage seems to be sincerely felt by many of today's corporations, many of whom have had to flee to places like Bangladesh or China to exercise their faith. It deals with ultimate questions (Q: "What is the worth of a man?", A: "Significantly less than current American minimum wage.") It's comprehensive enough to be the guiding principle in virtually all of the decisions made and actions taken by corporate persons. I'm not sure what constitutes "the outward signs of religion". Stamping the corporate logo on everything? Dressing up for board meetings like some people dress up for church? At any rate, I'm not seeing any of the objections you raise as being insurmountable.
Originally posted by GCabot:
quote:As for your scenario, there is significant case law on what constitutes legitimate, sincerely held religious belief. Generally, religion must be comprehensive, address fundamental/ultimate questions, and exhibit the outwards signs of religion. Sincerity requires significant evidence of true belief, including the length and consistency of belief, to show that it is not mere pretext. The company in your example would clearly fail this test.
Originally posted by Crœsos:
This seems a bit artificial, like noting that since the plaintiffs are right handed that the precedent involved does not apply to left handed persons. There doesn't seem to be any reason given in Burwell v. Hobby Lobby as to why a publicly traded company couldn't have a shareholder's vote to join the Church of No Minimum Wage and argue that the applicable labor laws infringe on their religious freedom.
quote:'Nothing requires a corporation to be wholly independent of the beliefs, religious or otherwise, of its owners,' is a long way from 'there is no essential difference between the corporation paying and the owner paying.'
Originally posted by GCabot:
quote:Both of these deal with corporate liability. The distinction you are making goes to one of the core characteristics of a corporation. There is nothing inherent in the corporate form, however, that builds a Chinese wall between a corporation and its owners. There is nothing that requires a corporation to be wholly independent of the beliefs, religious or otherwise, of its owners.
Originally posted by Dafyd:
quote:There is certainly an essential difference between Corp X owes me a million dollars, and person Y, 100% shareholder of Corp X, owes me a million dollars. Likewise, there is an essential difference between person Y was criminally negligent and corp X was criminally negligent. I can't see why the case of paying for birth control is any different.
Originally posted by GCabot:
There is no essential difference between saying "Corp X is paying for birth control" and "Person Y, 100% shareholder of Corp X, is paying for birth control."
quote:I know this was not the point of controversy in the case; I was replying specifically to an assertion Gwai made.
Originally posted by Crœsos:
quote:Which was not the point of controversy in the case at hand.
Originally posted by GCabot:
The idea that it is the job of employers to provide health care is dubious and assuredly not a majority opinion.
quote:I have no idea what you are getting at. Currently, employer spending on health care premiums is tax-exempt. If Hobby Lobby chooses to not provide certain coverage, the revenue that would have been spent on that coverage becomes taxable. These tax benefits have never been contingent on the employer providing a certain level of health care benefits.
Originally posted by Crœsos:
The question is whether religious beliefs entitle an employer to pay their workers with sub-standard health insurance and still receive the tax break given to companies that (partially) pay their workers in the form of health insurance. Hobby Lobby essentially wants to have their cake (religiously-based meddling in their employee's medical care) cake and eat it (their tax breaks), too.
quote:There aren't that many in this day and age who are willing to argue that finding a "No Negroes" (to use the parlance of the time) policy violates someone's civil rights means that a "No Chinamen" (ibid.) policy is still okay since that wasn't the issue of controversy.
Originally posted by GCabot:
quote:Yes, and many of those decisions violated the principle of judicial restraint, in expanding a decision beyond what was necessary to resolve the dispute at hand. Hence, why I said “generally.”
Originally posted by Crœsos:
Since when? I can think of numerous Civil Rights Era cases that dealt with particular discrimination against people of specific racial backgrounds that the courts nonetheless were comfortable using to hold that discrimination against people of any racial background is illegal.
quote:You can call it "grasping at straws", I call it "answering the specific criteria demanded by you". I'd also like to point out that most corporations (or is the term "corporate-Americans" more politically correct?) have shown a great propensity for grasping at just such straws if they think there's a loophole at the end. There doesn't seem to be anything in the specific reasoning of Hobby Lobby to preclude exactly this kind of denomination shopping.
Originally posted by GCabot:
You are free to look up the case law surrounding this issue. Suffice it to say, you are grasping at straws if you are trying to seriously put forth the idea of “no minimum wage” as a religion. Just because one has a strong sincere belief on a particular issue, does not make that into a religion. I am not going to explain the difference if you honestly cannot understand this distinction.
quote:I was going to drop it since we're clearly not getting anywhere with each other, but I do need to clarify this one. In America people generally get their health care from their employer. If the ACA works, maybe this will be less true, but I doubt Mr. Hobby Lobby is in favor of the ACA either. So yes health care is a benefit a person has the right to expect from a large corporation if they work full-time. And the government agrees since Hobby Lobby would have had to pay a large sum of money if they didn't offer health care.
Originally posted by GCabot:
quote:I know this was not the point of controversy in the case; I was replying specifically to an assertion Gwai made.
Originally posted by Crœsos:
quote:Which was not the point of controversy in the case at hand.
Originally posted by GCabot:
The idea that it is the job of employers to provide health care is dubious and assuredly not a majority opinion.
quote:This is exactly the case, though. The corporations here are specifically run with a Christian purpose, rather the pure economic gain. These principles are laid out in the incorporating documents of these companies. If a corporation were to, as you put forth, only discover their religious convictions when it is advantageous to them, however, they would fail the requirement for sincerely held religious belief under RFRA.
Originally posted by Dafyd:
I don't think it's meaningless to say a corporation has religious beliefs. If the corporation can demonstrate that it gives religious criteria priority over economic criteria; that it has deliberately made poor business decisions for religious reasons, you might be able to claim that the corporation has religious adherence in its own right. If the corporation only discovers its religious scruples when it comes to paying out money, that's a sign it doesn't have any religious practice. If the only way to determine the sincerity of a corporation's religious belief is to look at the religious practice of the corporation's owners that rather implies that the corporation does not have any religious beliefs of its own.
quote:I never stated that judicial restraint is always the best outcome. Clearly, in the civil rights cases, it made little sense to analyze the issue as one merely of African-Americans, rather than one of racial discrimination as a whole. What I was originally explaining was the legal principle behind the general rule that courts do not expand beyond the facts of the case at hand. Obviously, there are going to be exceptions.
Originally posted by Crœsos:
quote:There aren't that many in this day and age who are willing to argue that finding a "No Negroes" (to use the parlance of the time) policy violates someone's civil rights means that a "No Chinamen" (ibid.) policy is still okay since that wasn't the issue of controversy.
Originally posted by GCabot:
quote:Yes, and many of those decisions violated the principle of judicial restraint, in expanding a decision beyond what was necessary to resolve the dispute at hand. Hence, why I said “generally.”
Originally posted by Crœsos:
Since when? I can think of numerous Civil Rights Era cases that dealt with particular discrimination against people of specific racial backgrounds that the courts nonetheless were comfortable using to hold that discrimination against people of any racial background is illegal.
quote:I find it difficult to believe that you would walk into a court with the reasoning you provided and believe anyone would take your argument seriously that that was sufficient to constitute a religion.
Originally posted by Crœsos:
quote:You can call it "grasping at straws", I call it "answering the specific criteria demanded by you". I'd also like to point out that most corporations (or is the term "corporate-Americans" more politically correct?) have shown a great propensity for grasping at just such straws if they think there's a loophole at the end. There doesn't seem to be anything in the specific reasoning of Hobby Lobby to preclude exactly this kind of denomination shopping.
Originally posted by GCabot:
You are free to look up the case law surrounding this issue. Suffice it to say, you are grasping at straws if you are trying to seriously put forth the idea of “no minimum wage” as a religion. Just because one has a strong sincere belief on a particular issue, does not make that into a religion. I am not going to explain the difference if you honestly cannot understand this distinction.
quote:Yes they have. Health insurance, like all forms of insurance, is tightly regulated. In order to qualify as "health insurance", a policy has to provide certain benefits specified in law. You can't build a prayer temple, call it your employees' health insurance plan, and then deduct the cost from your taxes. You can't install a vending machine in the employee break room and call it "health insurance". You also can't provide "health insurance" that covers German measles and clavicle fractures and nothing else and call it "health insurance" for tax purposes.
Originally posted by GCabot:
quote:I have no idea what you are getting at. Currently, employer spending on health care premiums is tax-exempt. If Hobby Lobby chooses to not provide certain coverage, the revenue that would have been spent on that coverage becomes taxable. These tax benefits have never been contingent on the employer providing a certain level of health care benefits.
Originally posted by Crœsos:
The question is whether religious beliefs entitle an employer to pay their workers with sub-standard health insurance and still receive the tax break given to companies that (partially) pay their workers in the form of health insurance. Hobby Lobby essentially wants to have their cake (religiously-based meddling in their employee's medical care) cake and eat it (their tax breaks), too.
quote:Yes. Again, this is the core of the problem in so many ways. The bottom line is: we (US) need to sever the link between employment and access to health care, but to do so would require a painful and expensive switch over, and thus is politically impossible. But continuing the link leads to these sorts of dilemmas, continuing underemployment (employers designing 25 hour a week jobs rather than 40 to avoid insurance costs), and lack of mobility (can't change jobs w/o losing coverage) which creates an imbalance of power between labor and management. SCOTUS' majority decision pretty much acknowledged that by suggesting the "least restrictive" way for the govt to insure access to contraception was for the govt to pay for it directly. We need single-payer, but yes, that's a "commie red flag" to a large % of the taxpayers.
Originally posted by quetzalcoatl:
That seems correct to me; but to a Brit the linkage between employers and health-care seems bizarre. I understand the historical reasons for it (well, sort of), but it has produced an odd situation, where as we see with Hobby Lobby, an employer can vet employees' health care. This is a bit like telling them what they can spend their wages on.
But also, switching to another system would no doubt be difficult, and itself subject to intense politicking. I believe some Americans see the NHS as Communistic!
quote:Yet we seem to have a bit of a mixed bag with this decision, which relies on the one hand claiming that for-profit corporations should be statutorily equal to not-for-profit corporations ("no conceivable definition of the term ["persons"] includes natural persons and nonprofit corporations, but not for-profit corporations", according to Alito), and on the other hand saying that it there is a conceivable definition that distinguishes between closely-held corporations and publicly traded corporations. Switching standards like that is one of the earmarks of bad-faith arguments.
Originally posted by GCabot:
quote:I never stated that judicial restraint is always the best outcome. Clearly, in the civil rights cases, it made little sense to analyze the issue as one merely of African-Americans, rather than one of racial discrimination as a whole. What I was originally explaining was the legal principle behind the general rule that courts do not expand beyond the facts of the case at hand. Obviously, there are going to be exceptions.
Originally posted by Crœsos:
There aren't that many in this day and age who are willing to argue that finding a "No Negroes" (to use the parlance of the time) policy violates someone's civil rights means that a "No Chinamen" (ibid.) policy is still okay since that wasn't the issue of controversy.
quote:I find it difficult to believe a corporation that invested in contraceptive manufacturers two short years ago would be taken seriously when they claimed to have sincere and deeply held religious objections to financial entanglements with those exact contraceptives, but here we are. As long as it's a business interest making the case there seems to be no argument so brazen they won't make it, and there always seems to be some kind of legal venue sympathetic enough to entertain the notion.
Originally posted by GCabot:
quote:I find it difficult to believe that you would walk into a court with the reasoning you provided and believe anyone would take your argument seriously that that was sufficient to constitute a religion.
Originally posted by Crœsos:
quote:You can call it "grasping at straws", I call it "answering the specific criteria demanded by you". I'd also like to point out that most corporations (or is the term "corporate-Americans" more politically correct?) have shown a great propensity for grasping at just such straws if they think there's a loophole at the end. There doesn't seem to be anything in the specific reasoning of Hobby Lobby to preclude exactly this kind of denomination shopping.
Originally posted by GCabot:
You are free to look up the case law surrounding this issue. Suffice it to say, you are grasping at straws if you are trying to seriously put forth the idea of “no minimum wage” as a religion. Just because one has a strong sincere belief on a particular issue, does not make that into a religion. I am not going to explain the difference if you honestly cannot understand this distinction.
quote:Well, that occurred to me, that in fact this ruling means that Hobby Lobby will now pay for the dreaded forms of contraception through taxation, rather than their compensation to their employees. Well, I wonder if I've got that wrong, but it seems that way. I suppose for right-wing Christians maybe this is preferable, since less hands-on; on the other hand, as you say, a commie red flag also. It must be painful being a right-wing Christian today, beset on all sides by horrid gays, slutty women who want their sexyfuntime subsidized via slut pills, and other slackers. Never mind, it'll be OK in heaven.
Originally posted by cliffdweller:
quote:Yes. Again, this is the core of the problem in so many ways. The bottom line is: we (US) need to sever the link between employment and access to health care, but to do so would require a painful and expensive switch over, and thus is politically impossible. But continuing the link leads to these sorts of dilemmas, continuing underemployment (employers designing 25 hour a week jobs rather than 40 to avoid insurance costs), and lack of mobility (can't change jobs w/o losing coverage) which creates an imbalance of power between labor and management. SCOTUS' majority decision pretty much acknowledged that by suggesting the "least restrictive" way for the govt to insure access to contraception was for the govt to pay for it directly. We need single-payer, but yes, that's a "commie red flag" to a large % of the taxpayers.
Originally posted by quetzalcoatl:
That seems correct to me; but to a Brit the linkage between employers and health-care seems bizarre. I understand the historical reasons for it (well, sort of), but it has produced an odd situation, where as we see with Hobby Lobby, an employer can vet employees' health care. This is a bit like telling them what they can spend their wages on.
But also, switching to another system would no doubt be difficult, and itself subject to intense politicking. I believe some Americans see the NHS as Communistic!
quote:That is total nonsense. No one believes that the examples you provided could constitute legitimate health care expenditures. Clearly, these are governed by law and IRS regulations. I stated that the tax benefits are not contingent on providing a certain level of benefits. Obviously, what the employer provides has to constitute legitimate health care benefits under the law. As long as health benefits provided meet the requirements, they are excluded.
Originally posted by Crœsos:
quote:Yes they have. Health insurance, like all forms of insurance, is tightly regulated. In order to qualify as "health insurance", a policy has to provide certain benefits specified in law. You can't build a prayer temple, call it your employees' health insurance plan, and then deduct the cost from your taxes. You can't install a vending machine in the employee break room and call it "health insurance". You also can't provide "health insurance" that covers German measles and clavicle fractures and nothing else and call it "health insurance" for tax purposes.
Originally posted by GCabot:
quote:I have no idea what you are getting at. Currently, employer spending on health care premiums is tax-exempt. If Hobby Lobby chooses to not provide certain coverage, the revenue that would have been spent on that coverage becomes taxable. These tax benefits have never been contingent on the employer providing a certain level of health care benefits.
Originally posted by Crœsos:
The question is whether religious beliefs entitle an employer to pay their workers with sub-standard health insurance and still receive the tax break given to companies that (partially) pay their workers in the form of health insurance. Hobby Lobby essentially wants to have their cake (religiously-based meddling in their employee's medical care) cake and eat it (their tax breaks), too.
What Hobby Lobby is arguing is very similar to the above examples. They want to pay their employees in "health insurance" that does not meet the regulatory requirements and still receive the tax benefits for providing their employees with health insurance.
quote:The standards are different, because they apply to different parts of the law. The equality of corporations as persons deals with the intent of Congress in the application of RFRA. The possibility of distinguishing between closely-held corporations and others deals with the practical requirements necessary to ascertain what constitutes a corporation’s sincerely held religious beliefs. The Court explicitly refrained from addressing the issue of application to companies that are not closely-held, so it is pointless to conjecture what a theoretical holding in such as case would entail.
Originally posted by Crœsos:
Yet we seem to have a bit of a mixed bag with this decision, which relies on the one hand claiming that for-profit corporations should be statutorily equal to not-for-profit corporations ("no conceivable definition of the term ["persons"] includes natural persons and nonprofit corporations, but not for-profit corporations", according to Alito), and on the other hand saying that it there is a conceivable definition that distinguishes between closely-held corporations and publicly traded corporations. Switching standards like that is one of the earmarks of bad-faith arguments.
quote:Hobby Lobby has not “invested” in contraceptive manufacturers. Hobby Lobby provides its employees with a 401k plan, like most employers. Those 401k plans are administered by independent mutual funds of the employees’ choice. Some of those mutual funds have invested in companies that make birth control. To argue that this kind of attenuated link constitutes Hobby Lobby investing in those companies, is laughable.
Originally posted by Crœsos:
I find it difficult to believe a corporation that invested in contraceptive manufacturers two short years ago would be taken seriously when they claimed to have sincere and deeply held religious objections to financial entanglements with those exact contraceptives, but here we are. As long as it's a business interest making the case there seems to be no argument so brazen they won't make it, and there always seems to be some kind of legal venue sympathetic enough to entertain the notion.
quote:This is a different benefit that is unrelated to what we are discussing.
Originally posted by mousethief:
This Page appears to talk about the tax-code implications of levels of insurance coverage. For example, "Fewer than 25 full-time equivalent employees may be eligible for a Small Business Health Care Tax Credit to help cover the cost of providing coverage." Clicking on the link talks about the type of insurance coverage you must provide in order to be eligible. It follows quite naturally that if you do NOT provide that level, you will not be eligible, and your taxes will be higher.
quote:That's nice and opaque. You're claiming that employer's don't have to provide "a certain level of benefits", but that the benefits must meet a certain level ("ha[ve] to constitute legitimate health care benefits under the law").
Originally posted by GCabot:
quote:That is total nonsense. No one believes that the examples you provided could constitute legitimate health care expenditures. Clearly, these are governed by law and IRS regulations. I stated that the tax benefits are not contingent on providing a certain level of benefits. Obviously, what the employer provides has to constitute legitimate health care benefits under the law. As long as health benefits provided meet the requirements, they are excluded.
Originally posted by Crœsos:
Yes they have. Health insurance, like all forms of insurance, is tightly regulated. In order to qualify as "health insurance", a policy has to provide certain benefits specified in law. You can't build a prayer temple, call it your employees' health insurance plan, and then deduct the cost from your taxes. You can't install a vending machine in the employee break room and call it "health insurance". You also can't provide "health insurance" that covers German measles and clavicle fractures and nothing else and call it "health insurance" for tax purposes.
What Hobby Lobby is arguing is very similar to the above examples. They want to pay their employees in "health insurance" that does not meet the regulatory requirements and still receive the tax benefits for providing their employees with health insurance.
quote:Interestingly enough, the ACA is the latest revision of what "constitute(s) legitimate health care benefits under the law". The IRS' FAQ page on this subject even provides a handy citation for you. In fact, it's question #1 on that page.
Originally posted by GCabot:
Hobby Lobby’s insurance may not meet ACA requirements, but the eligibility of health care benefits for this tax exclusion is not contingent on this. If you have evidence to the contrary, please provide the appropriate IRS code citation.
quote:I'm not certain what your argument is here. You seem to be saying that the insurance employers pay their employees with has to meet the statutory requirements of law, unless that law is the ACA which totally doesn't count as a law because . . . something.
For 2015 and after, employers employing at least a certain number of employees (generally 50 full-time employees or a combination of full-time and part-time employees that is equivalent to 50 full-time employees) will be subject to the Employer Shared Responsibility provisions under section 4980H of the Internal Revenue Code (added to the Code by the Affordable Care Act).
quote:It seems that providing employees with an investment vehicle they could (but not necessarily would) use to invest in the manufacture of contraceptives, complete with matching funds directly from the corporate coffers, is about as direct as providing employees an insurance plan which they could (but not necessarily would) use to obtain contraceptives. If anything, the former is closer than the latter due to the corporate matching funds. If the one is laughable, so is the other.
Originally posted by GCabot:
quote:Hobby Lobby has not “invested” in contraceptive manufacturers. Hobby Lobby provides its employees with a 401k plan, like most employers. Those 401k plans are administered by independent mutual funds of the employees’ choice. Some of those mutual funds have invested in companies that make birth control. To argue that this kind of attenuated link constitutes Hobby Lobby investing in those companies, is laughable.
Originally posted by Crœsos:
I find it difficult to believe a corporation that invested in contraceptive manufacturers two short years ago would be taken seriously when they claimed to have sincere and deeply held religious objections to financial entanglements with those exact contraceptives, but here we are. As long as it's a business interest making the case there seems to be no argument so brazen they won't make it, and there always seems to be some kind of legal venue sympathetic enough to entertain the notion.
quote:Hobby Lobby does not buy contraceptives. It pays for an insurance company's coverage plan. That plan is mandated to provide contraceptive coverage. To argue that this kind of attenuated link constitutes Hobby Lobby paying for contraceptives, is laughable.
Originally posted by GCabot:
Hobby Lobby has not “invested” in contraceptive manufacturers. Hobby Lobby provides its employees with a 401k plan, like most employers. Those 401k plans are administered by independent mutual funds of the employees’ choice. Some of those mutual funds have invested in companies that make birth control. To argue that this kind of attenuated link constitutes Hobby Lobby investing in those companies, is laughable.
quote:Actually they did that eventually. I believe the impetus was reporting on this subject after they'd filed their initial suit. From this I conclude their scruples fall along the lines of "we don't want to look like hypocrites to the public and it might affect our chances of winning our suit".
Originally posted by mousethief:
ETA: Hobby Lobby could ask the 401k fund administrators to put their employees' retirement $$ in funds that don't include things against their religious scruples. There are all sorts of funds, and ones that steer clear of investments that are morally questionable to some investors are not far to seek. And yet they don't. Just how scrupulous are these scruples of theirs? One could be forgiven if one thought this whole contraceptive thing was a dog whistle for something else.
quote:I did not think it was necessary to explain that in order for health benefits to be excluded from taxation, they had to be actual health benefits. And I said that the benefits provided have to meet the definition of a health care benefit. That is completely different from my other statement that the amount of health care benefits provided is immaterial as to whether any of them may be excluded.
Originally posted by Crœsos:
quote:That's nice and opaque. You're claiming that employer's don't have to provide "a certain level of benefits", but that the benefits must meet a certain level ("ha[ve] to constitute legitimate health care benefits under the law").
Originally posted by GCabot:
quote:That is total nonsense. No one believes that the examples you provided could constitute legitimate health care expenditures. Clearly, these are governed by law and IRS regulations. I stated that the tax benefits are not contingent on providing a certain level of benefits. Obviously, what the employer provides has to constitute legitimate health care benefits under the law. As long as health benefits provided meet the requirements, they are excluded.
Originally posted by Crœsos:
Yes they have. Health insurance, like all forms of insurance, is tightly regulated. In order to qualify as "health insurance", a policy has to provide certain benefits specified in law. You can't build a prayer temple, call it your employees' health insurance plan, and then deduct the cost from your taxes. You can't install a vending machine in the employee break room and call it "health insurance". You also can't provide "health insurance" that covers German measles and clavicle fractures and nothing else and call it "health insurance" for tax purposes.
What Hobby Lobby is arguing is very similar to the above examples. They want to pay their employees in "health insurance" that does not meet the regulatory requirements and still receive the tax benefits for providing their employees with health insurance.
quote:You are citing to the new Employer Shared Responsibility Provision. This has nothing to do with the exclusion of health care benefits from corporate taxation. Or, was your reference to tax benefits referring to avoiding the tax penalty under this provision all along? If so, your language was extremely misleading.
Originally posted by Crœsos:
quote:Interestingly enough, the ACA is the latest revision of what "constitute(s) legitimate health care benefits under the law". The IRS' FAQ page on this subject even provides a handy citation for you. In fact, it's question #1 on that page.
Originally posted by GCabot:
Hobby Lobby’s insurance may not meet ACA requirements, but the eligibility of health care benefits for this tax exclusion is not contingent on this. If you have evidence to the contrary, please provide the appropriate IRS code citation.
quote:I'm not certain what your argument is here. You seem to be saying that the insurance employers pay their employees with has to meet the statutory requirements of law, unless that law is the ACA which totally doesn't count as a law because . . . something.
For 2015 and after, employers employing at least a certain number of employees (generally 50 full-time employees or a combination of full-time and part-time employees that is equivalent to 50 full-time employees) will be subject to the Employer Shared Responsibility provisions under section 4980H of the Internal Revenue Code (added to the Code by the Affordable Care Act).
quote:The difference should be obvious. One requires that the company itself provide health insurance coverage that specifically covers birth control. With a 401k, the company is not providing any kind of defined benefit. It is merely providing money. It is the same as the salary that employees receive, which they may use to purchase birth control, as they wish.
Originally posted by mousethief:
quote:Hobby Lobby does not buy contraceptives. It pays for an insurance company's coverage plan. That plan is mandated to provide contraceptive coverage. To argue that this kind of attenuated link constitutes Hobby Lobby paying for contraceptives, is laughable.
Originally posted by GCabot:
Hobby Lobby has not “invested” in contraceptive manufacturers. Hobby Lobby provides its employees with a 401k plan, like most employers. Those 401k plans are administered by independent mutual funds of the employees’ choice. Some of those mutual funds have invested in companies that make birth control. To argue that this kind of attenuated link constitutes Hobby Lobby investing in those companies, is laughable.
See what I did there? Once removed is once removed, isn't it? If not, how is the one different from the other? Please use small words because clearly I am not sharp enough to follow your convoluted arguments.
ETA: Hobby Lobby could ask the 401k fund administrators to put their employees' retirement $$ in funds that don't include things against their religious scruples. There are all sorts of funds, and ones that steer clear of investments that are morally questionable to some investors are not far to seek. And yet they don't. Just how scrupulous are these scruples of theirs? One could be forgiven if one thought this whole contraceptive thing was a dog whistle for something else.
quote:That seems incoherent, given that Hobby Lobby's whole case was that they should be allowed to provide a health benefit to their employees that does NOT meet the definition of a health care benefit (and still receive the tax deduction for doing so).
Originally posted by GCabot:
I did not think it was necessary to explain that in order for health benefits to be excluded from taxation, they had to be actual health benefits. And I said that the benefits provided have to meet the definition of a health care benefit. That is completely different from my other statement that the amount of health care benefits provided is immaterial as to whether any of them may be excluded.
quote:Health insurance is part of an employee's salary.
Originally posted by GCabot:
The difference should be obvious. One requires that the company itself provide health insurance coverage that specifically covers birth control. With a 401k, the company is not providing any kind of defined benefit. It is merely providing money. It is the same as the salary that employees receive, which they may use to purchase birth control, as they wish.
quote:And yet no more of a stretch than saying that by paying for a health insurance plan offered by a separate health insurance company Hobby Lobby is "buying" contraception. In both cases the fiscal link between Hobby Lobby & the dreaded contraception is indirect with at least one corporate middleman doing the actual dirty work (no pun intended). The only difference seems to be that one benefits Hobby Lobby's owners and the other does not.
Originally posted by GCabot:
Hobby Lobby has not “invested” in contraceptive manufacturers. Hobby Lobby provides its employees with a 401k plan, like most employers. Those 401k plans are administered by independent mutual funds of the employees’ choice. Some of those mutual funds have invested in companies that make birth control. To argue that this kind of attenuated link constitutes Hobby Lobby investing in those companies, is laughable.
quote:Um, what's the difference? A 401k with matching funds is, in fact, a benefit, whether you would like to call it that or not. The company is putting some of its money into a fund that it says (now, anyway) invests in ways contrary to its scruples. You will have to do more to explain why this is different from providing a health care plan, and you will have to do more than say "it's obvious." If it were obvious we wouldn't be having this conversation. If it's so obvious, you should be able to explain the difference besides saying, "health care is a benefit but matching retirement funds is not," which is a mere twisting of vocabulary.
Originally posted by GCabot:
The difference should be obvious. One requires that the company itself provide health insurance coverage that specifically covers birth control. With a 401k, the company is not providing any kind of defined benefit. It is merely providing money.
quote:Health insurance is not a part of an employee's salary. It is a fringe benefit that is part of an employee's total compensation. There is a significant difference.
Originally posted by Crœsos:
quote:Health insurance is part of an employee's salary.
Originally posted by GCabot:
The difference should be obvious. One requires that the company itself provide health insurance coverage that specifically covers birth control. With a 401k, the company is not providing any kind of defined benefit. It is merely providing money. It is the same as the salary that employees receive, which they may use to purchase birth control, as they wish.
quote:When an employer provides matching funds to an employee's 401k, it is providing exactly that - funds, i.e., cash. Thus, it is akin to an employee's salary. What the employee does with it it from that point on is not under the control of Hobby Lobby.
Originally posted by mousethief:
quote:Um, what's the difference? A 401k with matching funds is, in fact, a benefit, whether you would like to call it that or not. The company is putting some of its money into a fund that it says (now, anyway) invests in ways contrary to its scruples. You will have to do more to explain why this is different from providing a health care plan, and you will have to do more than say "it's obvious." If it were obvious we wouldn't be having this conversation. If it's so obvious, you should be able to explain the difference besides saying, "health care is a benefit but matching retirement funds is not," which is a mere twisting of vocabulary.
Originally posted by GCabot:
The difference should be obvious. One requires that the company itself provide health insurance coverage that specifically covers birth control. With a 401k, the company is not providing any kind of defined benefit. It is merely providing money.
quote:Not true. An employee can only invest in funds approved by Hobby Lobby. The company retains the ability to delineate which investments are included in the plan and which fall outside, in much the same way as a health insurance policy delineates forms of coverage. That's fairly evident from Hobby Lobby's recent change to restrict their 401(k) to mutual funds not associated with contraceptive manufacturers.
Originally posted by GCabot:
quote:When an employer provides matching funds to an employee's 401k, it is providing exactly that - funds, i.e., cash. Thus, it is akin to an employee's salary. What the employee does with it it from that point on is not under the control of Hobby Lobby.
Originally posted by mousethief:
Um, what's the difference? A 401k with matching funds is, in fact, a benefit, whether you would like to call it that or not. The company is putting some of its money into a fund that it says (now, anyway) invests in ways contrary to its scruples. You will have to do more to explain why this is different from providing a health care plan, and you will have to do more than say "it's obvious." If it were obvious we wouldn't be having this conversation. If it's so obvious, you should be able to explain the difference besides saying, "health care is a benefit but matching retirement funds is not," which is a mere twisting of vocabulary.
quote:Croesus has covered this.
Originally posted by GCabot:
When an employer provides matching funds to an employee's 401k, it is providing exactly that - funds, i.e., cash. Thus, it is akin to an employee's salary. What the employee does with it it from that point on is not under the control of Hobby Lobby.
quote:No. The law requires the insurance company to provide contraception. Hobby Lobby is not providing contraception. It is providing an insurance plan.
When the law requires Hobby Lobby to provide contraception, it is forcing it to do something, i.e., perform an action that explicitly provides a specific health care benefit, directly implicating it in the provision of something against its religious beliefs.
quote:Well, technically the law requires the insurance company to cover the cost of contraception without an additional co-pay. The one actually providing it is a doctor or pharmacist.
Originally posted by mousethief:
No. The law requires the insurance company to provide contraception. Hobby Lobby is not providing contraception. It is providing an insurance plan.
quote:Yeah, but Croesus, we're talking here about ladybits! Surely any God-fearing right-wing Christian wants to put a decent amount of insulation between himself and them.
Originally posted by Crœsos:
quote:Well, technically the law requires the insurance company to cover the cost of contraception without an additional co-pay. The one actually providing it a doctor or pharmacist.
Originally posted by mousethief:
No. The law requires the insurance company to provide contraception. Hobby Lobby is not providing contraception. It is providing an insurance plan.
So Hobby Lobby is partially paying (a portion of premiums are typically paid by the workers themselves) for an insurance plan to cover the cost of a doctor or pharmacist providing contraceptives. You can see why a connection so direct was worrying to them!
quote:I may have said this already (similar discussions going on via fb and elsewhere), but I imagine the end result of the whole kerfuffle will be some sort of precious legal fiction, where Hobby Lobby and their ilk will purchase health insurance coverage for their employees that specifies that the insurer is not contractually obligated to pay for certain medical procedures, then the insurer will let their insurees know that they will happily pay for these services even though not contractually required to do so (not because the insurers are such swell folks but simply because they'd much rather pay for contraception than for childbirth). All of which will, yes, make the baby Jesus so very happy because I'm sure he checks all the paperwork right there at the pearly gates...
Originally posted by Crœsos:
quote:Well, technically the law requires the insurance company to cover the cost of contraception without an additional co-pay. The one actually providing it is a doctor or pharmacist.
Originally posted by mousethief:
No. The law requires the insurance company to provide contraception. Hobby Lobby is not providing contraception. It is providing an insurance plan.
So Hobby Lobby is partially paying (a portion of premiums are typically paid by the workers themselves) for an insurance plan to cover the cost of a doctor or pharmacist providing contraceptives. You can see why a connection so direct was worrying to them!
quote:Oh, but we do. We do. On the hell thread relating to this topic, Tubbs has paid homage to Aneurin Bevan, who set up the UK's NHS in 1948. I'll take this opportunity now to thank, from the bottom of my heart, Messrs Michael Joseph Savage and Peter Fraser, who did the same for my country, in 1938.
Originally posted by Brenda Clough:
It does. Whoever it was upthread who said that the only solution is to split off employment from health insurance, is right. The connection between the two has become pernicious. Those of you who live in more enlightened realms have no idea how good you have it.
quote:Seriously? I have exactly the same opinion as an American poster, mousethief, and you try to suggest that Australian law doesn't have a concept of corporate personhood? Or that I don't understand the basics of corporations law.
Originally posted by GCabot:
Again, you seem to fundamentally misunderstand American law. Perhaps they do not have the legal concept of corporate personhood in Australia, or it is vastly different than how we understand it here. Regardless, I have already explained at length exactly how a corporation can legally be considered to exercise religion in this country.
quote:Can you not see that is examining the sincerity of the owner's religious beliefs?
Originally posted by GCabot:
quote:How does one go about examining the sincerity of a corporation's religious beliefs? One looks to the owners, who set forth the religious principles governing the corporation.
Originally posted by Crœsos:
That seems to be contradictory. If it's the corporation seeking redress, why not examine the corportation's sincerity instead of the owners?
quote:But the plaintiffs aren't "all closely held companies everywhere" - they are these specific companies: Hobby Lobby and Conestoga Wood Specialties. Where is the text explaining why being "closely held" is their important characteristic? It makes sense to rule narrowly, but not on completely arbitrary grounds. I would like to know where it says that being closely held is "the specific issue at hand," and why that's important.
Originally posted by GCabot:
quote:Sorry, I do not think I was very clear. Your question could either have meant:
Originally posted by Dave W.:
quote:Those two questions are the same - that's the essential characteristic of a closely held business.
Originally posted by GCabot:
quote:Are you questioning why they distinguish closely-held businesses generally from those with many shareholders, or why they specifically draw a line between five and six?
Originally posted by Dave W.:
The term "closely held" is frequently used in the majority opinion ( here, with Justice Kennedy's concurrence and the dissents) but I don't see where they explain exactly why the Religious Freedom Restoration Act should apply to corporations that have five owners but not to those that have six or more. The RFRA itself doesn't make the distinction - it only says "persons."quote:"Practical purposes of administration"? That seems unlikely in an opinion that is so solicitous of essential religious freedoms.
If it is the latter, it is just the SCOTUS drawing a convenient line where one is already defined by the IRS. This is mostly for practical purposes of administration.
Where is this stated in the opinion?
1. Why would a court possibly distinguish between a corporation with only a few shareholders versus a corporation with a significant number of shareholders in such a case?
2. Why would the SCOTUS specifically decide that this decision applied to closely-held corporations, i.e., those with five or less shareholders, but not those with six shareholders?
The specific reason why the SCOTUS’ decision applies only to closely-held corporations, is because those were the plaintiffs and that was the specific issue at hand. They issued a narrow ruling and did not come to a legal conclusion on whether companies with more than five shareholders would also have prevailed under the same set of facts.
quote:Your analogy is quite disanalogous - you suggest a rationale ("underlying theory") for why there should be a distinction between adults and minors, but as far as I can see nothing similar exists to support discriminating against the religious freedoms of companies with many owners. What principle compels this distinction? Particularly when one or more of those few owners could themselves actually be trusts or foundations? Why not let all corporations enjoy the exercise of their religious freedoms?
Generally speaking, however, when a court draws a bright line, it is quite arbitrary. Take, for example, the idea that one should not be able to vote until they are eighteen-years-old. The underlying theory is that younger children do not have the critical thinking ability/knowledge of the issues/etc. that would give them an informed vote.
[snip]
Thus, I was trying to explain why a court might decide to only allow the assertion of free exercise rights by closely-held corporations and not a corporation with six shareholders, even though the difference between the two would appear facially negligible.
quote:A company could theoretically restrict options to those funds that refuse to invest in such companies, or force fund managers to create new funds specifically for their employees, but these are both unnecessary solutions. Hobby Lobby provides over a dozen different choices for fund managers. The employee may choose whatever fund they wish. The individual investment decisions are made by the fund managers, not by Hobby Lobby. Just because Hobby Lobby was silent on restricting the investment activities of its fund managers, does not equate Hobby Lobby condoning investment in such companies. Rather, this situation is analogous to providing employee salaries, as I stated before. Hobby Lobby is providing cash that may be invested in whatever way the employee and fund manager see fit. The choice to invest in any specific company is a function of the decisions of the fund managers and the employees who pick them, not Hobby Lobby.
Originally posted by Crœsos:
quote:Not true. An employee can only invest in funds approved by Hobby Lobby. The company retains the ability to delineate which investments are included in the plan and which fall outside, in much the same way as a health insurance policy delineates forms of coverage. That's fairly evident from Hobby Lobby's recent change to restrict their 401(k) to mutual funds not associated with contraceptive manufacturers.
Originally posted by GCabot:
quote:When an employer provides matching funds to an employee's 401k, it is providing exactly that - funds, i.e., cash. Thus, it is akin to an employee's salary. What the employee does with it from that point on is not under the control of Hobby Lobby.
Originally posted by mousethief:
Um, what's the difference? A 401k with matching funds is, in fact, a benefit, whether you would like to call it that or not. The company is putting some of its money into a fund that it says (now, anyway) invests in ways contrary to its scruples. You will have to do more to explain why this is different from providing a health care plan, and you will have to do more than say "it's obvious." If it were obvious we wouldn't be having this conversation. If it's so obvious, you should be able to explain the difference besides saying, "health care is a benefit but matching retirement funds is not," which is a mere twisting of vocabulary.
quote:You are again trying to make a meaningless distinction. The law requires Hobby Lobby to provide health insurance to its employees, which must include coverage for contraception. That is the government requiring Hobby Lobby to provide contraception. The health insurance company is merely the means used to facilitate this mandated coverage.
Originally posted by mousethief:
quote:No. The law requires the insurance company to provide contraception. Hobby Lobby is not providing contraception. It is providing an insurance plan.
Originally posted by GCabot:
When the law requires Hobby Lobby to provide contraception, it is forcing it to do something, i.e., perform an action that explicitly provides a specific health care benefit, directly implicating it in the provision of something against its religious beliefs.
quote:Frankly, the fact that you have the same opinion as mousethief, an American poster, is meaningless, since mousethief clearly has no legal training, and is thus incompetent regarding the intricacies of American law.
Originally posted by orfeo:
quote:Seriously? I have exactly the same opinion as an American poster, mousethief, and you try to suggest that Australian law doesn't have a concept of corporate personhood? Or that I don't understand the basics of corporations law.
Originally posted by GCabot:
Again, you seem to fundamentally misunderstand American law. Perhaps they do not have the legal concept of corporate personhood in Australia, or it is vastly different than how we understand it here. Regardless, I have already explained at length exactly how a corporation can legally be considered to exercise religion in this country.
quote:Once again, you seek to impart an argument upon me that I never made. Nowhere did I claim that a decision is correct merely because the SCOTUS decided it that way. I was explaining why the decisions were correct, since they were based on much stronger legal arguments than those of the dissenters. The mere fact that “large number of people think that the US Supreme Court has made the wrong decision” is irrelevant, since most of them are laymen without any informed legal basis for their stated belief that the decision was incorrect. As for Justice Ginsburg, this is obviously not the case. Rather, her issue is that her legal arguments are objectively weaker, and thus her case for why the decision should have turned out differently is legally unconvincing.
Originally posted by orfeo:
What you are explaining is what American law is because the US Supreme Court has said what it is. Well, DUH. That's obvious. In the strictest sense of "what is American law", the Supreme Court can never be wrong.
So why is everybody even having this conversation?
Answer: because a large number of people think that the US Supreme Court has made the wrong decision. Including a US Supreme Court justice, who has written a withering dissent making precisely the same point that I'm making. Does she not understand American law either, then?
quote:Existing legal principle within the United States provides every basis needed for the Court’s well-grounded opinion. It is meaningless language such as saying that “Ginsberg [sic] is right at a fundamental level,” that leads me to question your understanding of American law. It is apparent that you believe the decision was fundamentally flawed, because it offends your personal notion of how corporations should be understood and what rights they should have. Of course, this carries no legal weight. Rather, the treatment of corporations in the decision, which you find so repugnant, is well-grounded in long-standing precedent, and the law itself as construed through proper principles of statutory interpretation.
Originally posted by orfeo:
Saying that the law is what the US Supreme Court has decided is a complete circularity, because the debate is about whether what the US Supreme Court has decided makes any sense in the context of existing legal principle. This is about criticising US law as found by 5 members of the US Supreme Court, because Ginsberg is right at a fundamental level.
In my view, it is you who understand very little about the law at all. It is axiomatic in common law countries, of which the USA and Australia are two, that a corporation has completely separate legal personhood. The fact that you don't understand why I am discussing legal principles from one country in the context of another is a further demonstration that you don't know much about law, because I am deliberately doing it based on them both being common law countries.
quote:I have already explained this ad infinitum. Courts look to the owner’s religious beliefs, since they are the ones that imparted religious beliefs to the corporation. Hence, the easiest way to determine the sincerity of a corporation’s beliefs is to look to their owners. Naturally, if the two coincide, this provides an extremely strong presumption of sincerity. One only has to look at the Hobby Lobby case, wherein HHS never even attempted to dispute that the corporation’s religious beliefs were sincere. Your inability to accept the idea that corporations may have their own religious beliefs is an admission that you are promoting your personal beliefs rather than a legitimate legal argument, since this is well-settled American law.
Originally posted by orfeo:
quote:Can you not see that is examining the sincerity of the owner's religious beliefs?
Originally posted by GCabot:
quote:How does one go about examining the sincerity of a corporation's religious beliefs? One looks to the owners, who set forth the religious principles governing the corporation.
Originally posted by Crœsos:
That seems to be contradictory. If it's the corporation seeking redress, why not examine the corportation's sincerity instead of the owners?
This is isn't even something that depends on corporations law. This is basic grammar. You do not examine the sincerity of one person's religious beliefs by examining the sincerity of the spouse's religious beliefs, or their parent's, or their child's. The very fact that you have to go to the owner is an admission that the corporation does not have religious beliefs.
quote:When courts rule on the merits of a case, they do so based on generic legal principles. It is absurd to craft a decision that only applies to the specific plaintiffs, while requiring all other essentially identical plaintiffs to separately litigate in order to assert their rights. Courts interpret the law, and unless the law only applies to a few specific individuals, a change or clarification in how the law is understood implicates the rights of many others besides a case’s plaintiffs.
Originally posted by Dave W.:
But the plaintiffs aren't "all closely held companies everywhere" - they are these specific companies: Hobby Lobby and Conestoga Wood Specialties. Where is the text explaining why being "closely held" is their important characteristic? It makes sense to rule narrowly, but not on completely arbitrary grounds. I would like to know where it says that being closely held is "the specific issue at hand," and why that's important.
quote:I provided this explanation because I was under the impression you did not understand how a court might justify creating a bright line distinction. In this case, however, the Court did not rule that there was such a distinction between closely-held corporations and others. It said that answering that legal question was unnecessary given the facts in this case, and thus they never provided an opinion as to that separate legal issue. That the decision only applies to closely-held corporations does not mean that the Court has ruled that other companies do not have such rights and are thus precluded from asserting them. Rather, they would have to separately litigate such an issue, since the Court did not address it one way or the other.
Originally posted by Dave W.:
quote:Your analogy is quite disanalogous - you suggest a rationale ("underlying theory") for why there should be a distinction between adults and minors, but as far as I can see nothing similar exists to support discriminating against the religious freedoms of companies with many owners. What principle compels this distinction? Particularly when one or more of those few owners could themselves actually be trusts or foundations? Why not let all corporations enjoy the exercise of their religious freedoms?
Generally speaking, however, when a court draws a bright line, it is quite arbitrary. Take, for example, the idea that one should not be able to vote until they are eighteen-years-old. The underlying theory is that younger children do not have the critical thinking ability/knowledge of the issues/etc. that would give them an informed vote.
[snip]
Thus, I was trying to explain why a court might decide to only allow the assertion of free exercise rights by closely-held corporations and not a corporation with six shareholders, even though the difference between the two would appear facially negligible.
quote:Yes, it adds to my amazement at all this. There are several things which are gulpworthy. First, of course, the link between employers and health provision, which seems quixotic to me.
Originally posted by Brenda Clough:
Where this is really going:
http://www.huffingtonpost.com/2011/01/03/scalia-women-discrimination-constitution_n_803813.html
I am sure there are people here who are old enough to remember the Equal Rights Amendment. Alas that its passage failed.
quote:If the beliefs of the corporation are laid out in its incorporating documents then the beliefs of its owners are interesting only in a historical sense. The corporation could be sold to different people, or the owners could change their religion; but if the documents are unchanged then the beliefs of the corporation are unchanged.
Originally posted by GCabot:
The corporations here are specifically run with a Christian purpose, rather the pure economic gain. These principles are laid out in the incorporating documents of these companies. If a corporation were to, as you put forth, only discover their religious convictions when it is advantageous to them, however, they would fail the requirement for sincerely held religious belief under RFRA.
The corporation has religious beliefs that were imparted unto it by its owners. I am not saying that looking at the owner’s beliefs is necessarily the only way to determine the sincerity of the beliefs of the corporation, but it is certainly the easiest.
quote:But again, not really different from contracting with an insurance company to provide health insurance. Most companies buy an off-the-shelf product that contains standard coverage of items selected not by the business owner but by the insurance company beancounters-- all the more so since ACA. It's quite unusual to customize with a la carte options. In fact, prior to ACA Hobby Lobby did cover all forms of birth control for exactly this reason-- the issue never even came up until ACA jogged the Green's dormant moral sensibilities.
Originally posted by GCabot:
quote:A company could theoretically restrict options to those funds that refuse to invest in such companies, or force fund managers to create new funds specifically for their employees, but these are both unnecessary solutions. Hobby Lobby provides over a dozen different choices for fund managers. The employee may choose whatever fund they wish. The individual investment decisions are made by the fund managers, not by Hobby Lobby. Just because Hobby Lobby was silent on restricting the investment activities of its fund managers, does not equate Hobby Lobby condoning investment in such companies. Rather, this situation is analogous to providing employee salaries, as I stated before. Hobby Lobby is providing cash that may be invested in whatever way the employee and fund manager see fit. The choice to invest in any specific company is a function of the decisions of the fund managers and the employees who pick them, not Hobby Lobby.
Originally posted by Crœsos:
quote:Not true. An employee can only invest in funds approved by Hobby Lobby. The company retains the ability to delineate which investments are included in the plan and which fall outside, in much the same way as a health insurance policy delineates forms of coverage. That's fairly evident from Hobby Lobby's recent change to restrict their 401(k) to mutual funds not associated with contraceptive manufacturers.
Originally posted by GCabot:
quote:When an employer provides matching funds to an employee's 401k, it is providing exactly that - funds, i.e., cash. Thus, it is akin to an employee's salary. What the employee does with it from that point on is not under the control of Hobby Lobby.
Originally posted by mousethief:
Um, what's the difference? A 401k with matching funds is, in fact, a benefit, whether you would like to call it that or not. The company is putting some of its money into a fund that it says (now, anyway) invests in ways contrary to its scruples. You will have to do more to explain why this is different from providing a health care plan, and you will have to do more than say "it's obvious." If it were obvious we wouldn't be having this conversation. If it's so obvious, you should be able to explain the difference besides saying, "health care is a benefit but matching retirement funds is not," which is a mere twisting of vocabulary.
quote:So you have no idea why "closely held" is supposed to be the important characteristic? But if it's the basis for limiting the scope of the opinion on something as important as the exercise of religious freedoms, shouldn't the opinion itself include some clue as to why it's important?
Originally posted by GCabot:
quote:I have not read the lower court briefs, but it is likely that the reason being “closely held” is an important characteristic here, as you construe it, is because that is the legal question the parties asked the court to answer. Going outside and addressing issues that no one has asked to be adjudicated once again violates the principle of judicial restraint.
Originally posted by Dave W.:
But the plaintiffs aren't "all closely held companies everywhere" - they are these specific companies: Hobby Lobby and Conestoga Wood Specialties. Where is the text explaining why being "closely held" is their important characteristic? It makes sense to rule narrowly, but not on completely arbitrary grounds. I would like to know where it says that being closely held is "the specific issue at hand," and why that's important.
quote:No. I don't need an explanation of why they might draw a distinction in general, thank you very much - I'm interested in an explanation for the reasoning behind this specific distinction.
quote:I provided this explanation because I was under the impression you did not understand how a court might justify creating a bright line distinction.
Originally posted by Dave W.:
quote:Your analogy is quite disanalogous - you suggest a rationale ("underlying theory") for why there should be a distinction between adults and minors, but as far as I can see nothing similar exists to support discriminating against the religious freedoms of companies with many owners. What principle compels this distinction? Particularly when one or more of those few owners could themselves actually be trusts or foundations? Why not let all corporations enjoy the exercise of their religious freedoms?
Generally speaking, however, when a court draws a bright line, it is quite arbitrary. Take, for example, the idea that one should not be able to vote until they are eighteen-years-old. The underlying theory is that younger children do not have the critical thinking ability/knowledge of the issues/etc. that would give them an informed vote.
[snip]
Thus, I was trying to explain why a court might decide to only allow the assertion of free exercise rights by closely-held corporations and not a corporation with six shareholders, even though the difference between the two would appear facially negligible.
quote:You realize that would make your example even less applicable, right? The distinction between under-18s and over-18s with respect to voting rights really is "the specific issue at hand" (as you put it before.) It isn't made for the sake of "narrowness" - it's not like they're saying "Adults can vote - but we're not saying anything about whether or not children can!"
In this case, however, the Court did not rule that there was such a distinction between closely-held corporations and others.
quote:OK. This is now perilously close to an actual cite of an actual passage from the actual opinion. Possibly the wording they use and the surrounding text might help clear up some of my questions - I'd be grateful if you could show me where in the opinion it says that.
It said that answering that legal question was unnecessary given the facts in this case, and thus they never provided an opinion as to that separate legal issue.
quote:I fixed the details you left out of your post. Of course, this begs the question as to why it couldn't be argued:
Originally posted by GCabot:
quote:A company could theoretically restrict options to those funds that refuse to invest in such companies, or force fund managers to create new funds specifically for their employees, but these are both unnecessary solutions. Hobby Lobby provides over a dozen different choices for fund managers. The employee may choose whatever fund they wish [within the funds approved by Hobby Lobby]. The individual investment decisions are made by the fund managers, not by Hobby Lobby. Just because Hobby Lobby was silent on restricting the investment activities of its fund managers, does not equate Hobby Lobby condoning investment in such companies. Rather, this situation is analogous to providing employee salaries, as I stated before. Hobby Lobby is providing cash that may be invested in whatever way the employee and fund manager see fit [as long as it is with a fund approved by Hobby Lobby]. The choice to invest in any specific company is a function of the decisions of the fund managers and the employees who pick them, not Hobby Lobby[, unless they want to invest in a fund not within Hobby Lobby's 401(k)].
Originally posted by Crœsos:
Not true. An employee can only invest in funds approved by Hobby Lobby. The company retains the ability to delineate which investments are included in the plan and which fall outside, in much the same way as a health insurance policy delineates forms of coverage. That's fairly evident from Hobby Lobby's recent change to restrict their 401(k) to mutual funds not associated with contraceptive manufacturers.
quote:If payment in the form of an investment vehicle is under the control of the employee and implies no endorsement from management of any particular investment, I don't see any reason why we would assume that every medical treatment performed under health insurance received as payment for work does include such an endorsement.
The employee may choose whatever [medical treatment] they wish. The individual [medical] decisions are made by the [doctors and patients], not by Hobby Lobby. Just because Hobby Lobby was silent on restricting the [medical treatments of in-network physicians], does not equate Hobby Lobby condoning [any particular medical treatment]. Rather, this situation is analogous to providing employee salaries, as I stated before. Hobby Lobby is providing cash that may be invested [on] whatever [treatment] the employee and [doctor] see fit. The choice to [provide] any specific [course of treatment] is a function of the decisions of the [doctors] and the employees who pick them, not Hobby Lobby.
quote:Not quite right. The HHS never disputed that the owner's religious beliefs are sincere. They did dispute the sincerity of the corporation's religious beliefs, insofar as they argued that for-profit corporations don't have any. I'm also not sure how you can claim "this is well-settled American law" since this case is the first to hold that a for-profit corporation can hold religious beliefs to an extent that exempts it from generally applicable law.
Originally posted by GCabot:
I have already explained this ad infinitum. Courts look to the owner’s religious beliefs, since they are the ones that imparted religious beliefs to the corporation. Hence, the easiest way to determine the sincerity of a corporation’s beliefs is to look to their owners. Naturally, if the two coincide, this provides an extremely strong presumption of sincerity. One only has to look at the Hobby Lobby case, wherein HHS never even attempted to dispute that the corporation’s religious beliefs were sincere. Your inability to accept the idea that corporations may have their own religious beliefs is an admission that you are promoting your personal beliefs rather than a legitimate legal argument, since this is well-settled American law.