Jul 012014

Another term, another batch of cases that get everyone’s panties in a goddamn bunch. And, as usual, a bunch of people want to comment on the opinion without actually reading it or doing the necessary legwork to have anything resembling a clue about what is actually going on. I’m going to briefly address what is actually said in Burwell (majority opinion only, because “briefly”). Everything will be paraphrased and based on a single reading of the opinion. So, if I make a mistake, let me know. If I don’t address a concern you have, comment, and I’ll see if I have the time.

First, however, I highly recommend you go read this previous blog post I wrote. It’s relevant.

Second, you really should be reading the opinion itself, which is available here.

But since you won’t actually read it…

…let’s get down to it.

The Issue

In Burwell, the Supreme Court addressed a single main issue: Could the government force Hobby Lobby, a closely held corporation (and other similarly situated plaintiffs) to pay for insurance that covered birth control which, in the view of the plaintiffs, resulted in an abortion.1

The Holding

The Supreme Court discussed the Religious Freedom Restoration Act (RFRA), which became law in November of 1993. The history of the act is actually very useful for those who are unfamiliar with some of the things Congress can do to reign in the Supreme Court when Congress does not like a decision. It’s actually very relevant to this scenario, but the Supreme Court discusses the history very thoroughly, so if you’re interested, go read the opinion itself.

The RFRA, essentially, established the standard by which the government must adhere to when placing a restriction on religious freedom. To put it another way, it established the standard that the Supreme Court is to use to determine if a religious freedom has been violated, if the act applies. So, the Supreme Court first determined whether the act applies. The §2000BB-1 of the RFRA states:

(a) In general

Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.

So, the Supreme Court asked “Is a closely held corporation a person under the definition of person as it is used here?” “Person” is not defined in the RFRA, which means another statute, the Dictionary Act, controls. The Dictionary Act, conveniently, is located at the front of the U.S. Code. §1 states:

In determining the meaning of any Act of Congress, unless the context indicates otherwise—

the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals;

The Supreme Court held that there was nothing in the context that indicates otherwise. Unless you have your head up your ass and refuse to think about it for a second, this makes sense. Any other reading of it would mean that the Act would not apply to charities, churches, your bible study, etc. In other words, why would Congress have wanted this act to apply solely to individuals and not groups of individuals? The term, as used in the RFRA is “person”, not “persons”. Further, Congress has the power to define the word “person” however they want. They very well could have made it clear by defining “person” to exclude corporations. However, they didn’t, so the plain meaning seems, well, pretty plain. Further, they pointed out the fact that regardless of the fact that the entity was a corporation, the owners themselves were still individuals (which is why the closely-held aspect of the plaintiffs is particularly relevant).2

Having determined that the RFRA applies to corporations, the Supreme Court turned their attention to determining whether the Affordable Care Act’s (ACA) provision on birth control violated the RFRA. To determine, the Supreme Court looked at §2000bb-1 again:

(b) Exception
Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—

(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.

Although the Supreme Court does discuss (b)(1) briefly, they assume that the ACA provision at issue is in furtherance of a compelling governmental interest.3 Thus, the ultimate issue is whether forcing the corporations to pay for the insurance is the least restrictive means of furthering that compelling governmental interest. The Supreme Court held that it was not. Why? That’s kinda the kicker.

You might recall that there is already an exception for churches. However, that does not mean that female employees of those churches are S.O.L. There are provisions for the employees to get birth control at no cost to the employee or the church. (See here. I’m not entirely sure how it works, though.) The Supreme Court pointed to this exception and found no reason why this could not be used to accomplish the same effect while also being a less restrictive means than forcing the employer to pay for it. The Supreme Court also pointed out that it could be as simple as the government picking up the tab.

To restate it, the Supreme Court held that because less restrictive means are available, the RFRA was violated, and that portion of the law was struck down.

So What Does This Mean? (I.e., this is why people getting upset about this are pissing me off.)

Are women’s reproductive rights affected? 

No. First, because the Supreme Court did not hold that females are S.O.L., simply that the government must find another way to do it. That’s it. The only “right” that’s affected is to have your employer pay for it. In the end, however, if females end up not getting coverage for their birth control, it’s because the legislature failed to find another solution (two of which have been suggested for them).

Second, even if that weren’t true, the rights would have been minimally affected. This case involved four very specific birth control measures. In other words, these employers must still provide coverage for the others. (This may be a bit broad, as I’m not entirely clear what was initially covered. Regardless, any birth control that was previously covered is still covered, except for the four at issue here.)

But it was all men who voted to strike down the provision!!!!

So fucking what? If you have a disagreement with the actual opinion, that’s fine. But the fact that the votes were ten testicles to two testicles and six ovaries does not make the logic, reasoning, and interpretation invalid.

But the companies are FOR-PROFIT!!!!!!

Again, so fucking what? Congress knows how to make a law that excludes for-profit corporations. Have a problem with what the statute says? Talk to your representative, don’t whine and moan about the Supreme Court saying “Congress’s intent is clear on its face”.

But what’s next? Doesn’t this mean x? y? Z!?!?!?!?!?!?

Maybe, maybe not. Neither X, nor Y, nor Z were at issue in this case. I don’t really see a reason why this ruling would lead to any of the results that make up the parade of horribles that everyone is trotting out. After all, the majority actually put forth two potential solutions that would probably pass muster. In general, the parade of horribles that people trot out rarely come true (even a small portion of them).

You’re just biased and hate women!

Probably. I mean, if I didn’t before, this stupid outrage over this case should have done it. But anyways, have fun squaring that with the fact that I’m pro-choice, proudly refer to myself as a feminist, and have a general dislike of religion.

Some closing points…

The court explicitly limited this to these facts: it only applies to the four birth control methods at issue and the corporations were closely held (i.e., not publicly traded). The latter is particularly relevant, because the religious belief must be a sincere religious belief. As I recall, both plaintiffs had references to their religious beliefs in their governing documents (e.g., something like “This corporation operates to further the Christian faith” or some such thing). You would be hard pressed to find something like that in most public companies. Further, it is much more difficult to show that a public corporation has sincere beliefs about religion.

In general, if you see George Takei or someone affiliated with Jezebel posting something about a court case, they’re probably full of shit. (This is me not making a gay joke.)

If you want to opine, or share something related to a case, I urge you to read the fucking opinion first, or ask someone that’s read it and/or has some qualifications. Or, if you hear conflicting opinions, go verify them by reading the opinion itself. The main thing to keep in mind is that very, very few of the most vocal people actually read the opinions, or much less care what it actually says. Most of them can’t even get the issue right. If you fail to understand the question that is being asked and the facts at issue, how can you possibly pass judgement on the opinion or its possible results?

As a general rule, if something related to the law is being shared around Facebook, it’s probably bullshit. If it’s encompassed by an image, it is bullshit.

Ask away.

I’m headed on vacation and don’t actually have any work that has to get done, so I might have some time to respond to questions. Feel free to point me to something related to this topic that you want me to take a look at. If it’s some long-ass article or blog post, please just pick out a point or two. I still won’t have the time to go through point-by-point.

1. According to the plaintiffs, life begins at conception, which is when the sperm fertilizes the egg. The four birth control methods at issue work, at least in part, by preventing a fertilized egg from implanting into the wall of the uterus (this includes the morning after pill (Plan B)). Thus, in the view of the plaintiffs, by preventing a fertilized egg from implanting in the uterus, a life was ended, therefore an abortion resulted. This issue was not discussed by the majority, so it won’t be discussed here. (It may not have been an issue in the case at all.)

2. Consider the following hypothetical. Assume I’m an independent bible salesman. I buy from a distributor and advertise my bibles on billboards. After a while, the government enacts a law that bans advertisements for bibles. I sue the government and the law is found to violate the RFRA.

Now change the facts just a tad. What if everything else was the same, but I formed the business as a single member corporation, wholly (heh) owned by me. Would it make sense to say that the RFRA didn’t apply simply because I chose to incorporate instead of act as a sole proprietor? “Well, you’re still an individual…”  Okay, so what if I hired an employee to help.What if I joined with a friend as a partnership? Or a corporation that was wholly owned by the two of us? The distinction based on the entity chosen to run a business is pretty questionable. Most people hear the word “corporation” and think of Apple, or Google, etc. But the truth is, most corporations are actually owned and run by a handful of people. I.e., most corporations are actually small businesses.

3. When a court discussions matters not relevant to the actual holding, this is referred to as “dicta”. Dicta is not binding, but can be used as support for a future issue.

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