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The Hon. Janice Rogers Brown, GWB appointee and author of today's decision
The Hon. Janice Rogers Brown, GWB appointee and author of today's decision
This morning, the DC Circuit ruled in favor of a challenge against the constitutionality of the ACA contraceptive mandate, finding that it would violate the religious free exercise rights of the Catholic co-owners of a pair of small for-profit food processing companies to force their companies to pay for such coverage. While the Court decided that the companies themselves had no free exercise rights as "persons" under the Constitution or the Religious Freedom Restoration Act, their owners could seek to vindicate those rights given the closely held nature of their ownership. The Court further determined that the reasons behind the contraceptive mandate were insufficiently compelling to override the owners' First Amendment rights.

Today's ruling temporarily bars the government from enforcing against their companies the penalties for failing to provide contraceptive coverage under their health care plans. Three decisions regarding the contraceptive mandate's constitutionality, originating from other circuits, are in the certiorari stage before the Supreme Court already and it's likely that one of them will be the vehicle for a decision this term.

The ruling is here, and I'll go through the nuts and bolts below the gnocchi.

Francis and Philip Gilardi are the sole owners of Freshway Foods and Freshway Logistics, food processing companies in Sidney, Ohio, with about 400 employees. They're Catholic, which does matter here, because they oppose contraception, sterilization, and abortion, and the ACA forces them into one of three options: (1) provide the mandated contraceptive services in contravention of their religious beliefs, (2) pay a penalty amounting to over $14 million per year, or (3) drop health care coverage altogether, which they regard as "morally unthinkable."

The Circuit panel first found that the companies themselves had no free exercise rights to advance here. RFRA allows that “[a] person whose religious exercise has been
burdened” can sue, but the Court was unwilling to declare corporations to be "persons" for these purposes. "The query is simple," asks the Court. "Do corporations enjoy the shelter of the Free Exercise Clause? Or is the free-exercise right a 'purely personal' one, such that it is 'unavailable to corporations and other organizations because the ‘historic function’ of the particular guarantee has been limited to the protection of individuals'?" And today's Court ultimately decides that while it applies to individuals and religious organizations, religous corporations are a horse of a different color:

Citing Citizens United v. FEC, the Freshway companies argue that corporations—religious or otherwise—are entitled to the full array of First Amendment protections, including the right to free exercise. They are not the only proponents of this position...

Perhaps Appellants’ constitutional arithmetic, Citizens United plus the Free Exercise Clause equals a corporate free-exercise right, will ultimately prevail. But we must be mindful that Citizens United represents the culmination of decades of Supreme Court jurisprudence recognizing that all corporations speak. When it comes to the free exercise of religion, however, the Court has only indicated that people and churches worship. As for secular corporations, the Court has been all but silent.

No such corpus juris exists to suggest a free-exercise right for secular corporations. Thus, we read the “nature, history, and purpose” of the Free Exercise Clause as militating against the discernment of such a right. When it comes to corporate entities, only religious organizations are accorded the protections of the Clause. And we decline to give credence to the notion that the for-profit/non-profit distinction is dispositive, as that, too, is absent from the Clause’s history..

Nor could the companies themselves seek to vindicate the free-exercise rights of their owners, despite the Court recognizing that under Catholic doctrine, “faith without works is dead.” (James 2:26) and that under Catholic doctrine, “instructing or encouraging someone else to commit a wrongful act is itself a grave moral wrong.”

But as to the owners themselves, acting through the corporation, the Court was willing to recognize their rights as meaningful:

If the companies have no claim to enforce—and as nonreligious corporations, they cannot engage in religious exercise—we are left with the obvious conclusion: the right belongs to the Gilardis, existing independently of any right of the Freshway companies....

We begin with the peculiar step of explaining what is not at issue. This case is not about the sincerity of the Gilardis’ religious beliefs, nor does it concern the theology behind Catholic precepts on contraception. The former is unchallenged, while the latter is unchallengeable...  

The only dispute touches on the characterization of the burden. The burden is too remote and too attenuated, the government says, as it arises only when an employee purchases a contraceptive or uses contraceptive services. We disagree with the government’s foundational premise. The burden on religious exercise does not occur at the point of contraceptive purchase; instead, it occurs when a company’s owners fill the basket of goods and services that constitute a healthcare plan. In other words, the Gilardis are burdened when they are pressured to choose between violating their religious beliefs in managing their selected plan or paying onerous penalties....

The Framers of the Constitution clearly embraced the philosophical insight that government coercion of moral agency is odious. Penalties are impertinent, according to Locke, if they are used to compel men “to quit the light of their own reason, and oppose the dictates of their own consciences.” JOHN LOCKE, A LETTER CONCERNING TOLERATION 13–14 (J. Brook ed., 1792) (1689). Madison described conscience as “the most sacred of all property,” James Madison, Property, NAT’L GAZETTE, Mar. 29, 1792, at 174, reprinted in JAMES MADISON’S “ADVICE TO MY COUNTRY” 25, 83–84 (David B. Mattern ed., 1997), and placed the freedom of conscience prior to and superior to all other natural rights. Religion, he wrote, is “the duty which we owe to our Creator . . . being under the direction of reason and conviction only, not of violence or compulsion,” 1 MADISON PAPERS 174 (1962), “precedent” to “the claims of Civil Society,” JAMES MADISON, MEMORIAL AND REMONSTRANCE AGAINST RELIGIOUS ASSESSMENTS (1785); see also United States v. Macintosh, 283 U.S. 605, 633–34 (1931) (Hughes, C.J., dissenting) (“[I]n the forum of conscience, duty to a moral power higher than the state has always been maintained. . . . The essence of religion is belief in a relation to God involving duties superior to those arising from any human relation.”).

And here's the crux:
The contraceptive mandate demands that owners like the Gilardis meaningfully approve and endorse the inclusion of contraceptive coverage in their companies’ employer-provided plans, over whatever objections they may have. Such an endorsement—procured exclusively by regulatory ukase—is a “compel[led] affirmation of a repugnant belief.” That, standing alone, is a cognizable burden on free exercise. And the burden becomes substantial because the government commands compliance by giving the Gilardis a Hobson’s choice. They can either abide by the sacred tenets of their faith, pay a penalty of over $14 million, and cripple the companies they have spent a lifetime building, or they become complicit in a grave moral wrong. If that is not “substantial pressure on an adherent to modify his behavior and to violate his beliefs,” we fail to see how the standard could be met.

In suggesting that no substantial burden lies with the Gilardis, the government invokes the principles undergirding the bargain for the corporate veil. True, it is an elementary principle of corporate law that “incorporation’s basic purpose is to create a distinct legal entity, with legal rights, obligations, powers, and privileges different from those of the natural individuals who created it, who own it, or whom it employs.” a sacrifice because the corporation can generally exercise some analogue of the forgone right. As a corporation is “capable of making and executing contracts, possessing and owning real and personal property in its own name, suing and being sued,” a shareholder cannot expect to exercise the right to take these actions in his or her personal capacity.  This is no less true with constitutional rights.

Mindful of these principles, consider the ramifications of the government’s argument. It contends free exercise is an individual right. If the Gilardis had run their businesses as sole proprietorships, they would presumably have a viable RFRA claim under the government’s theory.... This interpretation is perplexing and troubling. It is perplexing because we do not believe Congress intended important statutory rights to turn on the manner in which an individual operates his businesses.

And the government, rules this panel, lacks a sufficiently compelling interest in enforcing the contraceptive mandate to overcome these burdens on religious practice:
The government cites several concerns to bolster its claim that the contraceptive mandate serves a compelling interest (or interests), but its recitation is sketchy and highly abstract. Perhaps the government thought it best to focus on justiciability, hoping its ipse dixit would be sufficient to survive strict scrutiny. After all, if no one has standing to object, the state avoids the searching inquiry into its means. Here, the articulated concerns range from “safeguarding the public health” to “protecting a woman’s compelling interest in autonomy” and promoting gender equality. But the government does little to demonstrate a nexus between this array of issues and the mandate.

For example, as a standalone principle, “safeguarding the public health” seems too broadly formulated to satisfy the compelling interest test. It has been used to justify all manner of government regulations in other contexts.... The nebulousness of the government’s interest [] prevents us from engaging in the type of exacting scrutiny warranted here. What exactly is the government trying to ameliorate? Is it the integrity of “the health and insurance markets”? Surely, that cannot be the answer; the comprehensive sweep of the Affordable Care Act will remain intact with or without the mandate. Or is it a need to provide greater access to contraceptive care? If so, as we note below, the reasons underpinning that need are tenuous at best.

Then, citing one of those "abortion leads to breast cancer" quack groups ...
Equally unconvincing is the government’s assertion that the mandate averts “negative health consequences for both the woman and the developing fetus.” From the outset, we note the science is debatable and may actually undermine the government’s cause. For the potential mother, as one amicus notes, the World Health Organization classifies certain oral contraceptives as carcinogens, marked by an increased risk for breast, cervical, and liver cancers. Br. of the Breast Cancer Prevention Institute, at 8–9. On the other hand, the contraceptives at issue have been approved by the Food and Drug Administration, supported by research touting their benefits. This tug-of-war gives us pause because the government has neither acknowledged nor resolved these contradictory claims.

Even giving the government the benefit of the doubt, the health concerns underpinning the mandate can be variously described as legitimate, substantial, perhaps even important, but it does not rank as compelling, and that makes all the difference.

Senior Judge Harry Edwards, dissenting, agreed that the owners had standing, but did not find the contraceptive mandate to pose a substantial burden to their free exercise rights:
First, the Mandate does not require the Gilardis to use or purchase contraception themselves. Second, the Mandate does not require the Gilardis to encourage Freshway’s employees to use contraceptives any more directly than they do by authorizing Freshway to pay wages. Finally, the Gilardis remain free to express publicly their disapproval of contraceptive products....

[T]he Gilardis cannot claim that they are being forced to use contraceptives, which would directly conflict with their religious beliefs. Rather, they complain that because their companies are required to purchase insurance that includes coverage for contraception, they as owners are enabling third parties to engage in conduct that they oppose. This is a specious claim. The Gilardis can find no support for their position in the controlling case precedents. No Free Exercise decision issued by the Supreme Court has recognized a substantial burden on a plaintiff’s religious exercise where the plaintiff is not himself required to take or forgo action that violates his religious beliefs, but is merely required to take action that might enable other people to do things that are at odds with the plaintiff’s religious beliefs.

Furthermore, the Mandate does not require the Gilardis to directly facilitate employees’ use of contraception. The Gilardis do not contend that their religious exercise is violated when Freshway pays wages that employees might use to purchase contraception, and the Mandate does not require the Gilardis to facilitate the use of contraception any more directly than they already do by authorizing Freshway to pay wages. Amici supporting the Gilardis’ position attempt in vain to distinguish between the Mandate and paying wages. First, they argue that the Mandate requires the Gilardis to become an “essential cause” of increasing the number of employees who use contraception. Br. of 28 Catholic Theologians and Ethicists at 22-23. But the Gilardis are no more of an “essential cause” of increasing the use of contraception when they authorize Freshway to pay for a benefits plan that employees might use to get contraception than they are when they authorize wages that an employee might use to purchase contraception she would not otherwise be able to afford.

And the government's interest in this mandate, he explains, is compelling and substantial:
Contraceptive products are used for health care purposes beyond preventing unwanted pregnancy. They are prescribed to prevent disease. Contraceptives reduce the risk of ovarian, endometrial, and gynecologic cancers. Contraceptives and sterilization also preserve the health of adult women with diabetes, lupus, and heart conditions, who would be at physical risk if they became pregnant.

Coverage for contraceptive products eliminates gender discrimination because the cost of contraception falls disproportionately on women, and the costs of health care are generally much higher for women than men. Br. for the Appellees at 41 (“Congress found that . . . ‘women of childbearing age spend 68 percent more in out-of-pocket health care costs than men.’” (quoting 155 CONG. REC. S28843 (daily ed. Dec. 1, 2009) (statement of Sen. Gillibrand))). Gender inequality in the cost of health care is caused, in part, by the fact that many health services specific to women have historically been excluded from insurance coverage. Furthermore, it is critical to the functioning of the Affordable Care Act’s statutory scheme that exemptions from the Mandate are, like exemptions from the Social Security tax, extremely limited. Allowing religious exemptions to for-profit, secular corporations would undermine the universal coverage scheme: If the Gilardis’ companies were exempted from covering contraception, another corporation’s owners might just as well seek a religious exemption from covering certain preventative vaccines. A Christian Scientist, whose religion has historically opposed conventional medical treatment, might claim that his corporation is entitled to a religious exemption from covering all medical care except healers who treat medical ailments with prayer.  Muslim or Jewish business owners might claim a religious exemption from covering any medication derived from pork products (for instance, the gelatin used to make capsules or coating of many pills).

In conclusion:
Freshway and other for-profit  orporations are different from religious non-profits in that they use labor to make a profit, rather than to perpetuate a religious values-based mission. In choosing to use labor for financial gain, the corporation and its owners submit themselves to legislation—such as Title VII, the Fair Labor Standards Act, the Americans with Disabilities Act, and the Affordable Care Act—designed to protect the health, safety, and welfare of employees. They cannot voluntarily capitalize on labor but invoke their personal religious values to deny employees the benefit of laws enacted to promote employee welfare.

Because the Gilardis have voluntarily chosen to capitalize on labor, they have agreed to accept certain limitations on their conduct that arise from the Government’s compelling interest in securing the safety and welfare of their employees. For this reason, even if the Mandate were a substantial burden on the Gilardis’ religious exercise—which it is not—this record supports the conclusion that the burden is justified by the Government’s compelling interest in enforcing a public-welfare statutory scheme that, like the Social Security tax, simply “could not function” if for-profit employers of various “denominations were allowed to challenge the . . . system because . . . payments were spent in a manner that violates their religious belief.”

We'll keep you posted.

Originally posted to Adam B on Fri Nov 01, 2013 at 12:04 PM PDT.

Also republished by Daily Kos.

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Comment Preferences

  •  Tip Jar (110+ / 0-)
  •  let's just home for LOTS more on this from YOU (4+ / 0-)

    and nobody else will DO !!

    Addington's perpwalk? TRAILHEAD of accountability for Bush-2 Crimes. @Hugh: There is no Article II power which says the Executive can violate the Constitution.

    by greenbird on Fri Nov 01, 2013 at 12:07:46 PM PDT

    •  "Bullshit" & "Janice Rogers Brown" go hand in hand (7+ / 0-)

      She is perhaps the most extreme, and one of the most goofy, judges I'm aware of.

      No surprise to me that she would author a far-right decision that is legally and intellectually dishonest.

    •  Literally using Dred Scott-reasoning (10+ / 0-)

      If you start from the premise that a slave is not a person, but property, then of course it's easy to say it's unconstitutional to put undue restrictions on moving your goods across state lines. Apparently for this panel, since a corporation is a 'person' (in some legal sense), then of course they have religious beliefs needing First Amendment protection. Wait, what?

      Lincoln had the perfect saying for this madness: 'How many legs does a dog have if you consider the tail a leg?' Answer: calling a tail a leg doesn't make it a leg. We now have proof that Circuit Judges are apparently so blinded by corporate-philia that they believe corporations have personal rights.

      Pray it gets overturned en banc, and that the Supreme Court doesn't take it on cert.

      •  `what else can they claim religious exemption for? (9+ / 0-)

        following this logic if the company owner is a Jehovah Witness then no blood transfusions, if they are a Christian Scientist almost no treatment (aspirin is banned), if they are Mormon a range of stimulants are banned, Scientology does not allow any form of psychoanalysis or drugs for treatment of psychiatric disorders.  I could go on (and on) but the basic point here is that there are some wacky beliefs out there, and some of the people who hold those wacky beliefs own companies.  

        at what point does the employee have to give up their job because the owner has eliminated a medical procedure they need on religious grounds?  At what point does this stupid judge get sent a message that you are the dumbest idiot on the bench and you do not get to impose your beliefs on the rest of us, because the next idiot may be even worse.

        there is only one reality, republicans just forget at times

        by Bloke on Fri Nov 01, 2013 at 06:47:57 PM PDT

        [ Parent ]

        •  This is why they're really fighting... (2+ / 0-)
          Recommended by:
          walkshills, DarthMeow504

          Abortion and all those icky sex things.  They know they would get blown away if they were to actually ask for true religious freedom to ban healthcare plans they don't like, but they're playing a carefully built game to avoid admitting the crux of their argument is weak and that they're really just trying to hurt women.  

          •  What about the employee's rights? (0+ / 0-)

            Since the sponsors of the ACA already negotiated away the right of the employee to ADD coverage for abortions at her OWN expense (and really, who expects to have an abortion), the only real way to fix this is to allow WORKERS who have a CONSCIENTIOUS OBJECTION to the LIMITS of their employer's plans use the exchange to get a private policy, and collect in cash the employer's share of the plan they are not receiving; in other words, the lack of a feature that is forbidden by the employer's religion but allowed by the employee's religion, and desired by the employee, could be deemed to make the employer's plan "inadequate" under the rules of the ACA.

            The ultimate fix is single payer for all (supplementable by private insurance for the few who would still want or need it), because once EVERYONE'S tax money is in a single pool, NO ONE can withhold their share of any SINGLE expenditure on moral grounds.  Quakers pay income tax and other taxes that support the military; anti-capital punishment activists pay taxes that fund prisons where executions take place; Jews and Muslims pay taxes that fund inspections of pork slaughterhouses and shrimp boats; etc.  Activists in these or other groups are aware that there is no LEGAL right to separate "their" taxes into compartments for this or that function of government that has been voted on to be for the common good.  They have refused to pay, and accepted as legal the punishment for refusing, to make others aware and thus attempt to change future policy, but they know up front that civil disobedience of this type is not a right.  Thoreau in the Mexican War and many Americans (often cursed out as "hippie freaks" by some of the same people who are taking this stance today) in the Vietnam era, accepted legal punishment to make their moral stance, but no court ever ruled that their moral stance nullified the law.

            So with single payer, everyone's taxes could be pooled to supply ANY medically necessary care to any patient whose OWN religious beliefs, if any, allow it; and if not, the patient can make his or her OWN choice to decline the care, which they can do already.

        •  What else indeed? (0+ / 0-)

          How about a company owned by a Southern Baptist [cited because it is the largest non-Roman Catholic denomination in the US of A] whose strongly held beliefs that their body is a temple of God - and, so, oppose providing any medical care for those who have damaged said temple due to their sinful indulgence in alcohol or illicit drugs?

          Where does it end?  Isn't this something that the right would fearfully call a dreaded 'slippery slope'?

    •  The one things wingnut judges are good at (0+ / 0-)

      From Dred Scott to Plessy to Bush v. Gore to CU to Heller.

      "Reagan's dead, and he was a lousy president" -- Keith Olbermann 4/22/09

      by kovie on Fri Nov 01, 2013 at 06:05:58 PM PDT

      [ Parent ]

  •  oy. (12+ / 0-)

    That's all I have to say right now. Oy.

    Dawkins is to atheism as Rand is to personal responsibility- mperiousRex.

    by terrypinder on Fri Nov 01, 2013 at 12:11:52 PM PDT

  •  The government's interest appears to be (26+ / 0-)

    that women receive health care they require without paying more than men.

    Given what I've read about Judge Brown, I am not surprised she discounts that as unimportant.

    I'm on a mission! Testing the new site rules.

    by blue aardvark on Fri Nov 01, 2013 at 12:13:27 PM PDT

  •  The dissent was powerful..... (17+ / 0-)

    Unfortunately we have 5 justices at SCOTUS who catholic and may well use their objection to uphold the DC appellate decision...

  •  Can a corporation believe in God? (8+ / 0-)

    i give you...

    The Catholic Church

  •  Judge Edwards gets to the heart of the matter. (42+ / 0-)
    A Christian Scientist, whose religion has historically opposed conventional medical treatment, might claim that his corporation is entitled to a religious exemption from covering all medical care except healers who treat medical ailments with prayer.
    What else?  Can a business owner just make shit up, call it a religion, and get an exemption for whatever he/she wants?

    No, I'm willing to bet that this exemption is only for the "good" religions and not the weird ones.  Or is it?  This certainly opens the door for people to try all kinds of unorthodox things.

    •  i'm not sure if this is a difference (2+ / 0-)
      Recommended by:
      phonegery, walkshills

      but a Catholic cannot get an abortion, nor co-operate in the process.

      A Jewish grocer might not eat the pork, but be allowed to sell it.

      Would a Christian Scientist have a co-operation problem within his faith? A bigger problem for them might be that they will not consume any healthcare, so why should they be required to buy it.

      Don't the Amish have some sort of exemption?

      •  Amish are exempt from SS (17+ / 0-)

        if they only work within their communities, otherwise they pay it when they work outside their communities. by declaring themselves exempt, they receive no SS benefits.

        this site's pretty good.

        Dawkins is to atheism as Rand is to personal responsibility- mperiousRex.

        by terrypinder on Fri Nov 01, 2013 at 12:39:01 PM PDT

        [ Parent ]

      •  I think the difference is (6+ / 0-)

        that you can decide for yourself whether or not to purchase insurance, and if you have a religious objection to insurance, you're not subject to the penalty.

        Whereas, if you were a Christian Scientist business owner, you would not get to ignore the employer mandate and make the decision for your employees on religious grounds.

        Well, I thought that was the case before this ruling.

        Is it weird that I'm optimistic about the Supreme Court?  Kennedy seems not to be swayed so much by religious arguments.

      •  But abortions are legal, and they are a medical (11+ / 0-)

        procedure, and they are covered by insurance.

        If the Catholic Church has a problem with abortions, so be it.  I disagree that they have a right to insert themselves in the medical decisions of their employees, or deprive them of a legal medical procedure that might actually be saving their life.  

        I'm really sick to death with depriving people of their freedom to make choices under the rubric of "freedom" of religion.  It's horseshit.  In fact, abortion has been covered by insurance long before the ACA came around, why is it an issue all of a sudden?  This is just another obstruction tactic by conservatives.

        The most violent element in society is ignorance.

        by Mr MadAsHell on Fri Nov 01, 2013 at 04:07:21 PM PDT

        [ Parent ]

        •  Do you really think these plaintiffs would or (1+ / 0-)
          Recommended by:
          Mr MadAsHell

          intend to waive their limited liability as shareholders from liability for corporate wrongs, if it arises? And would not assert it if sued by their employees?

          And the employees are the issue, although invisible in the decision. They are being put the the problem of either finding another company to work for, and to have to ask as to any other company whether its bosses force on employees their personal religious convictions in the way these are,  or to forego by reason of religious bias and gender bias the right to equally inclusive medical care. And there is nothing in the decision indicating that they checked to see how many if any of their employees held any opinion whatever in this matter.  At a time when jobs are rare, this is a foul thing.

          This is also another case where the writing judge leaps over the holes in her argument. For example, she asserts that the plaintiffs have presented viable presumably less intrusive alternatives to the government position as to the mandate, but you can look from one end to the other of the opinion and not see what any of them are.

          And her notion that the government as a condition precedent to any such rule must have resolved the conflict between the claim which she pins on the WHO that some unnamed contraceptives are carcinogens, with the FDA's finding that the contraceptives to which this applies are safe for use here in the USA, again not naming the products.

      •  I have no idea, however it can be a problem with (0+ / 0-)

        some Jehovah's Witness as the official rule on the matter is that "the administering of blood upon request to worldly persons (someone not a JW) is left to the Christian (JW) doctor’s own conscience."

        You have watched Faux News, now lose 2d10 SAN.

        by Throw The Bums Out on Fri Nov 01, 2013 at 04:30:35 PM PDT

        [ Parent ]

    •  I think that as long as an EMPLOYEE is (9+ / 0-)

      contributing to his or her healthcare coverage with his or her own money, that his or her rights override those of the employer.

      Why wasn't this argued?

      •  the employee doesn't have a right to particular (2+ / 0-)
        Recommended by:
        BachFan, RainyDay

        insurance coverage.  

        •  Why wouldn't an employee (2+ / 0-)
          Recommended by:
          Loge, Naniboujou

          be entitled to the minimum insurance coverage required by a generally applicabel law?

          "Well, I'm sure I'd feel much worse if I weren't under such heavy sedation..."--David St. Hubbins

          by Old Left Good Left on Fri Nov 01, 2013 at 04:55:47 PM PDT

          [ Parent ]

        •  Did you see the bit about S corporations? (1+ / 0-)
          Recommended by:
          I also write separately to emphasize the importance of the Freshway Corporations’ election to be taxed under subchapter S of the Internal Revenue Code. I.R.C. §§ 1361–1379. As a result, the Freshway Corporations do not pay corporate income taxes. See I.R.C. § 1363(a). Instead, the income of the Freshway
          Corporations passes through, pro rata, to their shareholders, the Gilardis. See I.R.C. § 1366(a)(1). Subchapter S disregards the corporate form for purposes of the corporate income tax. We must ask why Congress would have disregarded the corporate form for subchapter S corporations but then wanted it imposed to prevent their owners from asserting free-exercise rights under RFRA. There is no good answer, or at least we have received
          none. It would be incongruous to emphasize the corporate veil in rigid form for RFRA purposes while disregarding it for tax purposes under subchapter S. This inference is particularly compelling because both subchapter S and the “tax” that enforces the contraceptive mandate are part of the Internal Revenue Code. I.R.C. § 4980D.
          I'll have to add "and you can impose your religious beliefs on your employees" to my choice of entity spiel.

          "Well, I'm sure I'd feel much worse if I weren't under such heavy sedation..."--David St. Hubbins

          by Old Left Good Left on Fri Nov 01, 2013 at 05:12:21 PM PDT

          [ Parent ]

          •  This is a disingenuous argument. (1+ / 0-)
            Recommended by:

            While S corps operate as a pass - through entity for purposes of income recognition they still enjoy the limited liability for shareholders that is recognized for all corporations. Perhaps if the owners operated as a true partnership -  taxed in the same manner as a S corp but without the liability protections for shareholders - then this argument just may hold water because the owners would personally share in all aspects of the business : income, loss, liability. But as soon as a shareholder can disavow personal liability and personal responsibility -  whether financially, criminally, or for negligence, etc. ALL BETS ARE OFF!

        •  Yet companies quite regularly remind their peons (1+ / 0-)
          Recommended by:

          that those wonderful bennies are part of their overall compensation.

          Which rather makes the money theirs, and the right to do with that money what they see fit theirs as well.

        •  If employee deprived of coverage for religous reas (0+ / 0-)

          employee's religious rights are violated.
          Of course, some accepted laws demote individual 1a religious rights to favor those who fund politics.

          ♥ Repeal the Capital Gains, Carried Interest & Dividends Entitlements bequeathed to 'more special' taxpayers.

          by in on Mon Nov 04, 2013 at 06:49:42 AM PST

          [ Parent ]

    •  Pasta Makers Heart the Church of the FSM (2+ / 0-)
      Recommended by:
      jdsnebraska, lcs
  •  This country will splinter and crumble (20+ / 0-)

    and fracture even more than it already is if these recent circuit court rulings are allowed to stand. This opens up more inroads to the disgusting "religious freedom" claims the christianists keep trying to use to circumvent laws they don't like.

    But hey, it's just women being denied equal protection for the basic right of health and well-being because apparently a business owner's personal religious beliefs trumps those of their employees and everyone knows women clearly don't deserve the same health consideration as men and they aren't capable of making decisions for themselves anyway. It's all very logical considering god created Eve so Adam would have someone to control.

  •  first crack in corporate personhood? (7+ / 0-)

    A corporation does not possess agency: will, or the capacity to initiate purposeful action.  Instead, everything a corporation says or does is wholly and inevitably determined by the desires and [financial, political, or religious] interests of the human beings who own and operate it ... and it is a transparently self-serving fiction for them to claim otherwise.

    Abolishing corporate personhood should be one of the central planks of the Democratic Party platform, and the "agency" argument could well be useful for other issues that hinge on questions of personhood.

    Domestic politics is the continuation of civil war by other means.

    by Visceral on Fri Nov 01, 2013 at 12:45:24 PM PDT

  •  Good write-up. ty. (2+ / 0-)
    Recommended by:
    Meteor Blades, Tonedevil

    "What could BPossibly go wrong??" -RLMiller "God is just pretend." - eru

    by nosleep4u on Fri Nov 01, 2013 at 12:54:14 PM PDT

  •  This ruling sets a bad precedent, in my opinion. (15+ / 0-)

    From the dissent:

    But the Gilardis are no more of an “essential cause” of increasing the use of contraception when they authorize Freshway to pay for a benefits plan that employees might use to get contraception than they are when they authorize wages that an employee might use to purchase contraception she would not otherwise be able to afford.
    This dissenting opinion carries the whole argument, right there. Do the employee benefits that make up part of the compensation for Freshway employees belong to the employees, or to their employers?

    The dissenting opinion says that those benefits belong to the employees—and that the employer, in paying for health care coverage that includes contraception, is no more "paying for contraception" than they would be if the employees bought the contraception out of pocket, as the benefits no longer belong to the employer once they're part of the employee's compensation package.

    The court opinion suggests otherwise—that forcing the Gilardis to pay for health insurance that includes employee contraception is forcing them to pay for contraception. The benefits belong not to the employees, but to the employers, who get to decide what their employees can buy with at least this portion of their compensation.

    That seems to me to be a terrible precedent, because it suggests that employers who have moral objections to certain practices are being forced to participate in those practices when their employees' compensation includes those practices.

    Would this open the door for a lawsuit from the Gilardis or other religious employers asking to be exempted from laws that ban discrimination on the basis of religion, or asking to be allowed to not hire employees who use contraception? The logic of this ruling would suggest that the employers are morally compromised by being forced to compensate their employees where that compensation could be used for practices the employer finds morally objectionable; it seems to me that this opens up the possibility that such a logic might not be limited to employer-paid benefits, but in fact may extend to the paycheck itself.

    Or do you think that's too far even for the right-wingers on the 5th Circuit to go?

    "When I give food to the poor, they call me a saint. When I ask why the poor have no food, they call me a communist." --Dom Helder Camara, archbishop of Recife

    by JamesGG on Fri Nov 01, 2013 at 01:02:08 PM PDT

    •  Well Obama is OK with religious institutions (1+ / 0-)
      Recommended by:

      getting tax dollars and still discriminating in their hiring (ala the Faith Based Initiatives) why not corporations??

      •  That's not what this discussion is about. (2+ / 0-)
        Recommended by:
        Tonedevil, johnny wurster

        Whether or not public money goes to religious organizations that are currently legally allowed to engage in religious discrimination in hiring, is an entirely separate issue from this one, which is about non-religious organizations and non-public money.

        This discussion is about whether an employer at a non-religious organization could claim the right to discriminate on the basis of religion, based on this ruling's logic that an employer's payment to their employees constitutes the employer's moral participation in anything that employee does using that compensation.

        I can see in this ruling's logic where such an argument could be made, and obviously don't want that argument—or, for that matter, this case against the ACA specifically—to prevail. I'm guessing that we are in complete agreement as far as that is concerned.

        So why try to stir up an argument over something completely different?

        "When I give food to the poor, they call me a saint. When I ask why the poor have no food, they call me a communist." --Dom Helder Camara, archbishop of Recife

        by JamesGG on Fri Nov 01, 2013 at 02:51:44 PM PDT

        [ Parent ]

        •  I like to point out hypocrisy occasionally. (0+ / 0-)

          Of course I disagree with this whole idea that corporations have any such individual identity, but part of the problem here is that all corporations benefit from taxpayers in one way or another and can not (as churches really can not) separate themselves from government.  If the Obama administration wants corporations to play fair with taxpayer monies and laws, including discrimination in hiring based on religious beliefs, then it would be nice if he stopped supporting Constitutional violations of church/state and stopped having his Justice Dept. defend them.

    •  Vaccines next? (2+ / 0-)
      Recommended by:
      Tamar, BachFan

      Then any type of surgery

      In God we trust, All others we monitor -AFTAC (-2.75, -2.67)

      by lcs on Fri Nov 01, 2013 at 04:10:06 PM PDT

      [ Parent ]

      •  This case is already there, because the court (1+ / 0-)
        Recommended by:

        ignores entirely the problem that the chemicals here referred to contraceptives are used not only to avoid pregnancy but for a wide range of other female medical issues, many of which can be fatal if not remedied, and all of these other uses are also being denied to female employees although not contraceptive in the nature of their use, if these religious bigots win. One possible use among many to which these plaintiffs disagree is enough for both plaintiffs and court to deny the other uses to employees.

    •  Wikipedia has Narcissistic... (0+ / 0-)

      personality disorder listed as:

      Narcissistic personality disorder (NPD) is a personality disorder[1] in which one is excessively preoccupied with issues of personal adequacy, power, prestige and vanity. This condition affects one percent of the population.

      I think those 1%ers may want to control everyone and everything.  This lawsuit is just the tip of the iceberg.  They will be going after the wage next.

  •  How discouraging! (2+ / 0-)
    Recommended by:
    Fishtroller01, Tonedevil

    As if the god botherers needed any more encouragement in unraveling the American experiment and taking us back to the Dark Ages...

  •  The whole issue of corporate personhood (5+ / 0-)

    is a slippery slope. It provides rich owners to hide behind the corporate veil while imposing their will on employees (contraception) or the public (Citizens United). It's time the supreme court ruled whether "corporations are people, my friend". If so, they should have the vote, right to bear arms, and so on.

    •  But in this case it isn't an issue (2+ / 0-)
      Recommended by:
      twigg, Adam B

      The panel explicitly rejected any notion that the Freshway companies themselves have rights, or could even have rights, under the Free Exercise Clause of the First Amendment. It insteads finds, that because the Gilardis closely hold the two companies that the contraceptive mandate of the ACA is effectively imposed on the Gilardis themselves.

      I find that a stretch, but I didn't expect anything different from these judges. However, this logic does limit the applicability of this holding to companies with similar ownership structures.

      •  And exactly how many businesses in ths country are (0+ / 0-)

        businesses this small, which are usually 'closely held' and not public.  The unspoken part of this is, of course, that the way the court wrote this, all partnerships need not comply with the mandate either because the financial consequences of operation of partnerships runs right to the partners personally. The real question skated over her is that the judge ignored the question of the public nature of businesses, who when they operate in the general marketplace become subject to its common  and neutral rules.

        •  According to the decision ... (0+ / 0-)

          ... the Freshway companies are S corps (for tax purposes at least), not partnerships. Granted, that's not my strong suit so it may be a distinction without a difference for all I know).

          •  You are correct. It is NOT a distinction without a (0+ / 0-)

            difference. The limited liability of corporations is something the S corps get, but not partnerships, and this is digging a huge hole in the wall between the two, in favor of course of allowing the owners of businesses to set their personal policies for employees at least when wrapped in religion, which policies may scrap otherwise universally effective anti discrimination rules.

      •  It's not a "stretch" (1+ / 0-)
        Recommended by:
        Adam B

        It's flat out wrong, both in law and in logic.

        It's a great shame that we have a Federal Appeals Court judge who bends the law to fit her personal view of the world, and how she got there is an even greater travesty.

        I hope that the quality of debate will improve,
        but I fear we will remain Democrats.

        Who is twigg?

        by twigg on Sat Nov 02, 2013 at 12:05:29 AM PDT

        [ Parent ]

        •  Granted, it's a rather novel theory of the ... (0+ / 0-)

          ... Relationship between a corporation and it's owners that seems like it would conjure up an interesting parade of horribles if I had the time to think a few up.

          I mean, the whole idea of corporations is to create a distance between the owners and the market, so the former can't be held liable for the latter's debts. With that comes the implicit understanding that there's a Chinese wall, that your company  may be subject to rules you yourself would object to.

          •  Precisely (0+ / 0-)

            If the Giraldi's are so closely connected that the company's business cannot be treated separately from their individual rights, then they should have to treat it as a sole proprietorship or partnership ACROSS THE BOARD.  No protection from liability, including bankruptcy.

            Single payer would fix this, along with most of the other problems we have with healthcare.  

            If we can't get full Medicare for all, can we at least get Medicare Plan D?  And, if not that, can we at the very least stop giving drugs patent extensions for new uses?  Those with the original conditions are having their rights taken away by perpetuating the monopoly for all uses.

  •  Thanks, Adam. n/t (6+ / 0-)

    Don't tell me what you believe, show me what you do and I will tell you what you believe.

    by Meteor Blades on Fri Nov 01, 2013 at 01:57:51 PM PDT

  •  I find this to be a very peculiar notion (4+ / 0-)
    It is perplexing because we do not believe Congress intended important statutory rights to turn on the manner in which an individual operates his businesses.
    Has Brown never heard of the Internal Revenue Code?

    "Well, I'm sure I'd feel much worse if I weren't under such heavy sedation..."--David St. Hubbins

    by Old Left Good Left on Fri Nov 01, 2013 at 03:07:18 PM PDT

  •  Also this (5+ / 0-)
    We disagree with the government’s foundational premise. The burden on religious exercise does not occur at the point of contraceptive purchase; instead, it occurs when a company’s owners fill the basket of goods and services that constitute a healthcare plan.
    Which owners get to decide?  For example, if a Gilardi brother owns one share of a publicly-traded company, could the company declare itself possessed of a right not to offer contraceptive benefits?

    And why is this right vested in the owners?  The actual decision as to what benefits to offer is actually made by the officers and directors.  Can a board invoke the conscience right?  The CEO?

    This decision is crap...

    "Well, I'm sure I'd feel much worse if I weren't under such heavy sedation..."--David St. Hubbins

    by Old Left Good Left on Fri Nov 01, 2013 at 03:14:03 PM PDT

    •  Right, they can't use the corp (1+ / 0-)
      Recommended by:
      Phoenix Rising

      as a vehicle to advance their religious views.  Decisions about insurance policies offered BY THE CORPORATION have to be made in e best interests of the corporate entity, and that includes following the law and offering insurance options that allow them to attact qualified women as employees.

      Difficult, difficult, lemon difficult.

      by Loge on Fri Nov 01, 2013 at 05:09:04 PM PDT

      [ Parent ]

      •  Well... (0+ / 0-)

        Technically, the corporation must act in the best interests of its shareholders. It appears that the "shareholders" in this case are the plaintiffs; I wouldn't argue this point as a government attorney.

        Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves. - William Pitt

        by Phoenix Rising on Fri Nov 01, 2013 at 06:38:12 PM PDT

        [ Parent ]

        •  Not quite... (0+ / 0-)

          A for-profit corporation acts in the best interests of its shareholders by maximizing shareholder value.  A for-profit corporation that wants to pursue goals in addtion value maximization, such as the advancement of religion, would have to organize as a "benefit corporation."  Only certain states allow benefit corporations--and Ohio isn't one of them.

          "Well, I'm sure I'd feel much worse if I weren't under such heavy sedation..."--David St. Hubbins

          by Old Left Good Left on Fri Nov 01, 2013 at 06:56:00 PM PDT

          [ Parent ]

          •  Your argument works (0+ / 0-)

            except that the Shareholder Value is determined by the shareholders, and reflected at Annual General Meetings.

            With what is effectively a privately held corporation, the shareholders are free to determined what constitutes "shareholder value".

            I hope that the quality of debate will improve,
            but I fear we will remain Democrats.

            Who is twigg?

            by twigg on Sat Nov 02, 2013 at 12:08:36 AM PDT

            [ Parent ]

    •  Closely Held (0+ / 0-)

      As I read it (which i have done only cursorily), this opinion is restricted to closely held corporations.  The Gilardis are the only two owners of the corporation, and that's a big part of the reason for this holding, if I have read correctly.

      •  That raises a number of questions (0+ / 0-)

        One judge thought it was important that it was an S corporation;  an S corporation can have up to 100 shareholders, which is hardly closely-held.  And S corporation status is only a tax concept:  if S corporations can discriminate, what about partnerships and limited liability companies?  The tax treatment is essentially the same as an S corporation, but the number of shareholders is theoretically unlimited, and they can even be publicly traded.

        It is true that the judges apparently thought that it was easier to view Freshways (with two owners) as almost not quite a real corporation, but that flies in the face of decades of decisions that recognize a corporation as an entity distinct from its owners.

        Invoking tax-law concepts to justify discrimination is patently absurd.  There is no state that I know of that varies its corporate law based on whether a corporation has made any particular tax election.  In fact, Brown wrote:

        It is perplexing because we do not believe Congress intended important statutory rights to turn on the manner in which an individual operates his businesses.
        But that is precisely what the decision to organise as a corporation instead of an LLC, to elect to be an S corporation, or to be public or private is all about:  Brown's opinion would not limit the decision to closely-held corporations.  

        "Well, I'm sure I'd feel much worse if I weren't under such heavy sedation..."--David St. Hubbins

        by Old Left Good Left on Sat Nov 02, 2013 at 06:41:52 AM PDT

        [ Parent ]

  •  We had better get rid of the filibuster kabuki (6+ / 0-)

    And get some people on empty benches.

    Who knows how much time remains to do so?

    The best lack all conviction, while the worst Are full of passionate intensity.

    by chuckvw on Fri Nov 01, 2013 at 03:51:03 PM PDT

  •  No mergers until age 16 (3+ / 0-)
    Recommended by:
    JML9999, Mr MadAsHell, RW

    Since corporations are people, there should be no mergers until a corporation turns age 16.

  •  Are you being flip in your argument? (0+ / 0-)

    Or am I misunderstanding the application of rights to corporations?

    I thought that the free speech rights that accrue to corporations are derived from the free speech rights of the individuals who make up the corporation.

    The question I pose:

    If my neighbors and I got to together to form a group opposed to the building of a local bridge, would that group have the right to take out ads and engage in activities furthering that cause?

    If, because we were collecting money and engaging in a controversial activity, we decided to form a corporation to protect our families against loss, would that group have the right to take out ads and engage in activities furthering our cause?

    Does it make sense to:

    1. Say we can't exercise our free speech rights as a group?
    2. To strip those rights because of the way we organize our group?

    LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

    by dinotrac on Fri Nov 01, 2013 at 03:53:56 PM PDT

    •  it doesnt or shouldnt give you the right (0+ / 0-)

      to have your bigotry however overrule laws.

      Just because you dont like something doesnt mean you get to ignore laws.  Or at least it shouldnt.

      Whats next, just create a new religion that is all about how slavery is next to godliness, and therefore companies need not follow labor laws or minimum wage laws?

      I mean this is getting ridiculous.

      •  Which is not the question. (1+ / 0-)
        Recommended by:
        johnny wurster

        Laws passed by Congress are limited by the Constitution.

        The question of whether or not being forced to provide contraceptives abridges somebody's freedom of religious practice is important, but it is different from the question of whether somebody (or an organization of somebodies) has a right of religious practice.

        If there is no such right, the first question doesn't matter.  If there is, it does.

        LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

        by dinotrac on Fri Nov 01, 2013 at 04:11:36 PM PDT

        [ Parent ]

        •  the question is ridiculous (0+ / 0-)

          and that it is even asked and not laughed at is to show just how far the rabbit hole, and just how captured by big corps, we are.

          So why not put some Christian  inerrantists in a company, then simply stop paying workers, since slavery is fine according to the old testament. So why should corps be forced to go against their religion and the word of god?  

          The stupidity in all this is astonishing. The world and this country just gets greedier and more ridiculous and stupid by the day.

    •  The act of incorporation (2+ / 0-)
      Recommended by:
      dinotrac, twigg

      As noted in the decision, the act of incorporation creates a separate legal entity with separate rights and regulations.

      The decision also explicitly notes that the Supreme Court has ruled somewhat extensively on Free Speech for corporations, largely in favor of that right, because there is a need for a corporation to speak on behalf of its shareholders/organizers. In either case, the rights of the group to speak are still limited by campaign laws and/or by slander/libel laws.

      But there is no such right to religion for an organization, unless the purpose of that organization is to promote a religion. This is also pointed out in the decision.

      Judge Brown's decision rests almost solely on the direct level of control exerted by the plaintiffs on the company - essentially, she says that the government mandate forces them as owners to take an action that they would not support religiously. But, as the dissent notes, one of the things you have to do as a business owner is to follow labor laws of all sorts, some of which you may also disagree with religiously (like hiring women) - and you don't get a choice in that matter.

      Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves. - William Pitt

      by Phoenix Rising on Fri Nov 01, 2013 at 06:47:15 PM PDT

      [ Parent ]

      •  Indeed ... (0+ / 0-)

        And the even stronger point that the Health Benefits are the property of the employees, not the company.

        If we accept that the employer can specify how employees spend their earned benefits, where does it stop?

        Company Store?

        I hope that the quality of debate will improve,
        but I fear we will remain Democrats.

        Who is twigg?

        by twigg on Sat Nov 02, 2013 at 12:11:15 AM PDT

        [ Parent ]

    •  There is confusion. The purpose of the corporation (2+ / 0-)
      Recommended by:
      dinotrac, DK Green

      is to allow limited liability, so that the obligations of the business will not be the obligations and liability of its shareholders, absent certain kinds of shareholder misconduct. The personhood of a corporation is its own, distinct from that of its shareholders who may also be or not be entities in the law without feet, which is why all the ink was spent in the opinion noting that a business corporation cannot possess rights itself of exercise of religion. The judge's point here is to pierce what tradition calls the corporate veil between the business itself and those who own it but are not liable for its debts, for the limited purpose of imposing their personal views on an entity legally unable itself to exercise them, because it is an entity distinct from its owners.

  •  Great response to this ruling (5+ / 0-)
  •  Health ins is part of the Employees compensation.. (7+ / 0-)

    It is not the corporations Ins or monies. It is compensation payed to the Employee to be used as the Employee sees fit.

    A mind like a book, has to be open to function properly.

    by falconer520 on Fri Nov 01, 2013 at 03:58:58 PM PDT

  •  So...Scientologists could refuse to cover (4+ / 0-)
    Recommended by:
    wasatch, murphy, Naniboujou, twigg

    psychiatric care, Christian Scientists could refuse to cover anything, and Jehovah's Witness's could refuse to cover blood transfusions/organ transplants?

    "But the traitors will pretend / that it's gettin' near the end / when it's beginning" P. Ochs

    by JesseCW on Fri Nov 01, 2013 at 04:01:17 PM PDT

  •  Well, if a corporation is a person then it must (0+ / 0-)

    a soul right?

  •  This is Scary (3+ / 0-)
    Recommended by:
    GrumpyOldGeek, Yonkers Boy, prfb

    Never in U.S. history has the 1st Amendment's protection of religious liberty meant the liberty of employers' to rule the beliefs of their employees.  If this ruling stands, it has implications far beyond artificial contraception. Suppose I work for a "closely held" company owned by Jehovah's Witnesses. JW's don't believe in blood transfusions.  Could they deny coverage for any blood transfusions I might need? If my employers were members of the Church of Christ (Scientist), could they refuse all medical insurance because they only believe in faith healing?

    This MUST be overturned!

    "I was not born for myself alone, but for my neighbor as well as myself."--Richard Overton, leader of the Levellers, a17th C. movement for democracy and equality during the English Civil War. for healthcare coverage in Kentucky

    by SouthernLeveller on Fri Nov 01, 2013 at 04:05:38 PM PDT

  •  I note that a judge need not be (5+ / 0-)

    a fat old white man to get things utterly wrong.

    don't always believe what you think

    by claude on Fri Nov 01, 2013 at 04:16:31 PM PDT

  •  can a corporation wear a condom? (0+ / 0-)

    PLEASE donate to a global children's PEACE project: Chalk 4 Peace

    by RumsfeldResign on Fri Nov 01, 2013 at 04:19:31 PM PDT

  •  Religions... (1+ / 0-)
    Recommended by:

    have turned freedom of religion into something awful.

  •  And this is why we didn't want her on any court (1+ / 0-)
    Recommended by:

    in the first place !

    Just look up what's been written on dKos about her in the past.

    She's got her own tag.

    I must be dreaming...

    by murphy on Fri Nov 01, 2013 at 04:25:41 PM PDT

  •  Brown's choices and wording. (1+ / 0-)
    Recommended by:

    If I were writing a court opinion, I would not cite scripture, nor would I quote Locke, nor would I use the phrase "the sacred tenets of their faith" in referring to petioners' beliefs.

    •  Did you catch her red-baiting? (0+ / 0-)

      She tries to make the HHS regulations sound all Soviet-style and scary by calling them a "ukase."  The last time I recall a judge using that term was back in the 80s, and it was Robert Bork who used it.

      "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

      by FogCityJohn on Fri Nov 01, 2013 at 04:48:13 PM PDT

      [ Parent ]

  •  So in this ruling freedom of religion is extended (1+ / 0-)
    Recommended by:

    to include the freedom to impose your religious beliefs on others. I doubt John Locke would approve.

    I'm a Vietnam Era vet. I'm also an Erma Bombeck Era vet. When cussing me out and calling me names please indicate which vet you would like to respond to your world changing thoughts.

    by Just Bob on Fri Nov 01, 2013 at 04:28:28 PM PDT

  •  The formal name of the Mormon Church (0+ / 0-) "The Corporation of the President of the Church of Jesus Christ of Latter Day Saints"... a tax exempt religious corporation believing itself to be the "one true church". Hard to tell what they worship more - deity or their 9-I quarterly filings. I suspect that atheists, catholics, muslims and buddhists who have no interest in being proselyted  have trouble getting past the first job interview.

    And who knows what Oral Roberts University calls itself anymore, given how much neocon bible thumpers hate gays... but you can bet your paycheck that they're tax exempt even though they turn a healthy profit, and that they'll enthusiastically proclaim without hesitation that theirs is a "God-fearing" organization.

    Ah, the art of obfuscating semantics... confusing the sentient beings subservient TO the corporation with the corporate entity itself. Conservative religious zealots seem to either confuse easily or else try to con you behind your back - and they're so damned good at it, it's sometimes difficult to tell the difference.

  •  Somebody didn't understand "Hobson's choice" (0+ / 0-)

    It's not a choice between undesirable alternatives (that's a "Dilemma", "False Dilemma", or, if both choices yield the same result, a "Morton's Fork").

    It's not a choice at all.

    It's "That or nothing - take it or leave it".

    If it's
    Not your body,
    Then it's
    Not your choice
    And it's
    None of your damn business!

    by TheOtherMaven on Fri Nov 01, 2013 at 04:38:42 PM PDT

  •  My religion requires me to smoke weed. (1+ / 0-)
    Recommended by:

    I want the ACA to cover this, too.  Good golly.

    Mix the blood and make new people!

    by Yonkers Boy on Fri Nov 01, 2013 at 04:39:01 PM PDT

  •  Piercing the corporate veil (0+ / 0-)

    I learned about this in business school, and with some experience in small business and nonpublic corporations I've learned to conduct myself in running a nonpublic corporation as I would running a sole proprietorship, especially as far as liability and similar issues are concerned. If the owners of a nonpublic corporation can be held personally liable for corporate conduct, especially if they are actively involved in the management of the company, then it seems to me not unreasonable that their personal religious views may be taken into account as well in terms of compliance with the ACA.

    I'm not saying I agree with the court's decision, and as I understand it the court's decision does uphold the Act with regard to publicly traded corporations, only that I can understand the complexity of applying the Act to a nonpublic corporation whose owners are actively involved in running the business.


    by Ken Bank on Fri Nov 01, 2013 at 04:40:58 PM PDT

    •  They must be teaching it wrong in business school (0+ / 0-)

      Running a corporation (or other limited liability entity) as a sole proprietorship is the wrong way to do it, not the right way to do it.

      In a properly-run corporation, whether private or public,  the owners cannot be hled liable for the corporation's debts.

      "Well, I'm sure I'd feel much worse if I weren't under such heavy sedation..."--David St. Hubbins

      by Old Left Good Left on Fri Nov 01, 2013 at 05:05:45 PM PDT

      [ Parent ]

  •  "Fictitious human" is the term, no? Romney (0+ / 0-)

    should have said, "Fake people are people, too."

    Mix the blood and make new people!

    by Yonkers Boy on Fri Nov 01, 2013 at 04:43:45 PM PDT

  •  Methinks we are making a little too much of this. (0+ / 0-)

    There are only a limited number of companies who would make this claim. By and large, the mandate for contraceptive coverage is intact, unless I badly misunderstand the scope of this ruling. Yes, it's awful, and should be reversed, but it's not the end of the ACA, or even the end of the mandated coverage of contraceptives.

    "Nothing happens unless first a dream. " ~ Carl Sandburg

    by davewill on Fri Nov 01, 2013 at 05:01:56 PM PDT

  •  Corporations ONLY exist to limit one's liability (0+ / 0-)

    It's a cover for people to do as much as they want and please, but then they can wash their hands and leave it to rot when the shit hits the fan and the "company", nothing but an entity, takes ALL blames.

  •  En Banc? (0+ / 0-)

    So will the DC Circuit take this matter up En Banc? If so, what is the likely result?

    •  Not if Obama "packs" it (0+ / 0-)

      Rulings like this are precisely why Repubs won't confirm Obama nominees to it, and are therefore precisely why Dems must go nukyular.

      "Reagan's dead, and he was a lousy president" -- Keith Olbermann 4/22/09

      by kovie on Fri Nov 01, 2013 at 06:12:28 PM PDT

      [ Parent ]

    •  This decision was only one where a preliminary (1+ / 0-)
      Recommended by:
      Adam B

      injunction was at issue. It has gone back to the inferior court to decide other issues noted as still awaiting decision, and for trial. Only then would there be a final decision to be heard.

  •  I can think of some corporations (0+ / 0-)

    that ought to go to confession, but that's it.

    I shall die, but that is all that I shall do for Death; I am not on his payroll. - Edna St. Vincent Millay

    by Tara the Antisocial Social Worker on Fri Nov 01, 2013 at 05:58:09 PM PDT

  •  How do idiots (0+ / 0-)

    Like Rogers get lifetime appointments to a Federal Court?  This country has gone completely nuts, were Fucked!

    •  She was appointed as part of the "Gang of 14" (0+ / 0-)

      deal made to avoid having Repubs invoke their own nuclear option back in 2005 IIRC. My god, it seems like yesterday.

      "Reagan's dead, and he was a lousy president" -- Keith Olbermann 4/22/09

      by kovie on Fri Nov 01, 2013 at 06:11:18 PM PDT

      [ Parent ]

  •  So I don't have to pay taxes anymore (2+ / 0-)
    Recommended by:
    Naniboujou, prfb

    since they're used to pay for things that violate my religious and moral beliefs, like war, drones and warrantless spying? How is such idiocy any different from this idiocy? How was this not laughed out of court? What a stupid ruling.

    "Reagan's dead, and he was a lousy president" -- Keith Olbermann 4/22/09

    by kovie on Fri Nov 01, 2013 at 06:04:39 PM PDT

  •  Hey, Wait... (0+ / 0-)

    Isn't a corporation a fictional human completely separate from its creators and stockholders?  Isn't that the point?

    In the future, when corporations engage in illegal activity will this bright new addition to juris prudence still apply?

    Wouldn't that be GREAT?

  •  If a corporation has religion... (0+ / 0-)

    ...shouldn't the court require that those religious convictions be enshrined in the articles of incorporation and bylaws?  After all, that is where "the soul" of the fictitious entity resides, not in the person of a manager.

    Just spit ballin' here.

  •  WTF? (0+ / 0-)

    "we do not believe Congress intended important statutory rights to turn on the manner in which an individual operates his businesses."

    What the hell!?  How can anyone NOT believe Congress (or state legislatures, for that matter…does this judge know ANYTHING?) intended important statutory rights (such as limited liability, for heaven's sake) to turn on the manner in which an individual operates his business?  What statutory rights do NOT depend on how the business is operated?

    Just, WTF?

  •  Another reason why single payer funded thru a tax (0+ / 0-)

    would be better.  A religious exemption for paying a tax isn't going to fly - can you imagine the number of people who'd become Quakers, for example, to stop paying the defense portion of their taxes?  The only one that I know of is SS and the Amish - as long as they work only within their community/church they are exempt.  but as soon as they work for someone outside their church they pay.    


    Republicans: if they only had a heart.

    by leu2500 on Fri Nov 01, 2013 at 07:36:40 PM PDT

    •  Or family planning Medicaid. (0+ / 0-)

      It surprises me that religious (really means "conservative") for-profit corporations want to force women to apply for family planning medicaid, instead of a company that at least makes a profit.

      At least in the case of insurance, the rate goes up and down, so women still have to pay for the insurance.

      Yet I forgot: they are stupid.

    •  Who knows, this could be the court case that (0+ / 0-)

      causes Single Payer to Happen.


      Gentlemen, congratulations. You're everything we've come to expect from years of government training (Zed, MIB).

      by GreenMother on Mon Nov 04, 2013 at 11:47:48 AM PST

      [ Parent ]

  •  I thought the corporate god was mammon? (0+ / 0-)
  •  Noone has the "right" to make an obscene profit. (0+ / 0-)

    People have three choices here: remain a small company that is exempt from the ACA, or start a non-profit corporation in line with their religious beliefs, (or join the rest of the American people who have real jobs and have to sweat for a living for a paycheck. )

    Yet if they want to "play" they have to "pay".

  •  Pandora's Box is opening... (0+ / 0-)

    So if I get this right... If these "owners" didn't believe in Antibiotics, or medical intervention of any sort then the Company Healthcare plan would consist only of "Group Prayer meetings"?

    There is a very severe problem here, if we are to allow basic medical plans to be managed by an employer's religious whim. The healthcare law provides rights and protections to persons and raises the lowest level of insurance that is to be provided to every citizen in the country. It is not done for a religious reason, but for a public health reason. The court is ignoring that this is a universal law applying to all individuals and is interjecting loopholes you could drive a truck through.

    The owners of the company are not having their religious tenets abused. But they in their actions are abusing the needs of others and enforcing their religious beliefs on those not of their faith. THAT IS NOT FREEDOM OF RELIGION.

    This opens the door to all kinds of abuse including hiring practices for the company. They could use this ruling to restrict their hiring to only those that share the owner's faith or have a level of faith that meets the owner's strict guidelines.

    "I think it's the duty of the comedian to find out where the line is drawn and cross it deliberately." -- George Carlin, Satirical Comic,(1937-2008)

    by Wynter on Sat Nov 02, 2013 at 03:21:26 AM PDT

  •  Maybe we should ask a Voodoo Doctor (0+ / 0-)

    What type of healthcare plan do you provide to your employees?

    "I think it's the duty of the comedian to find out where the line is drawn and cross it deliberately." -- George Carlin, Satirical Comic,(1937-2008)

    by Wynter on Sat Nov 02, 2013 at 03:31:13 AM PDT

    •  A practitioner of Voudoun would probably pick a (0+ / 0-)

      better plan. Occultists of any stripe are usually pragmatists about such things.

      Gentlemen, congratulations. You're everything we've come to expect from years of government training (Zed, MIB).

      by GreenMother on Mon Nov 04, 2013 at 11:49:37 AM PST

      [ Parent ]

  •  Catholicism is, basically, the right not to just (0+ / 0-)

    live your life and worship your God, but the belief that you also have the right to tell others how to live their lives.  

    America doesn't have an Obama Problem, America doesn't even have an Abortion Problem or a Gay Problem. With 32% of the population representing the bedrock support of the Republican Party, America has a Stupid Problem.

    by MARTinNJ on Sat Nov 02, 2013 at 05:12:45 AM PDT

    •  Yes, that is also the unfortunate message I am (0+ / 0-)


      What is that judge's connection to religious groups I wonder?

      Gentlemen, congratulations. You're everything we've come to expect from years of government training (Zed, MIB).

      by GreenMother on Mon Nov 04, 2013 at 11:47:16 AM PST

      [ Parent ]

  •  An exchange of services does not make women (0+ / 0-)

    the chattel of religious business owners. It does not women beholden to the belief systems of said business owners.

    I am all for crippling a business that seeks to undermine the individual rights of women-citizens who should always be free to choose their own reproductive self determination, whether that be via the edicts of a church or religious leader, or dictated by their own personal conscience whether or not, any faith is represented or embraced at all.

    Gentlemen, congratulations. You're everything we've come to expect from years of government training (Zed, MIB).

    by GreenMother on Mon Nov 04, 2013 at 11:46:16 AM PST

  •  I'd add one more argument (0+ / 0-)

    If the corporation is allowed to deny coverage, it is infringing on the rights of the employees to exercise their own religious freedom to use contraception - especially if the wages are low enough that the cost of contraception without insurance coverage would place a burden on the employee. Since these are grocery stores, it is highly likely that a substantial portion of the employees earn wages low enough to make the cost of contraception prohibitive.

    Ok, two more arguments:

    In addition to the infringement on the employee's religious liberty, the corporation is ensuring that employees with certain medical conditions receive unequal treatment. A woman with severe endometriosis, for example, needs birth control to prevent severe anemia, excessive pain and suffering, and lost work with the attendant lost wages. There are no male health issues that are precluded from coverage simply because an employer decides it is against their religious beliefs to pay for insurance that would treat such an illness.

  •  Health insurance should increase... (0+ / 0-)

    for Freshway Foods. Contraception lowers overall costs (babies are not cheap, and sick and pre term babies are VERY expensive). Their health insurance should increase noticeably, and if they pass those costs on to their employees, then it's up to the employees to determine their level of support for their owners that they're willing to pay more overall for health insurance.

  •  How is this not gender discrimination? (0+ / 0-)

    Why is it always ok to discriminate against females and we pretend that it's others' religious rights? How come the Gilardis aren't lobbying to prevent unmarried males from accessing Viagra? Aren't Catholics also supposed to be against sex unless you are married?  

  •  Sham reasoning (0+ / 0-)

    Under this reasoning, a corporation owned entirely by
    Quakers should be allowed to reduce their federal taxes by the proportion of the federal budget used to finance wars and armaments.  They are pacifists, a position long recognized by the federal government which has allowed them conscientious objector status since before WWI.  Contraception is legal throughout the country and birth control pills are used for more than preventing pregnancy, so refusing to provide for these pills, in effect , not only forces the employee to adopt the religious position of her employer (which is unconstitutional) but places the employer in the position of a medical professional in determining what treatment the woman should receive.  Why is it that conservatives are always yelling for individual freedom and privacy except when women's health and reproductive rights are involved?  Should an employee ever be forced to chose between her job and accepting her employers definition of religion?

  •  Healthcare & Employer's Religion (0+ / 0-)

    OK, here is a story, without the baggage of sex and birth control.  My husband has worked for the same company for well over twenty years.  In the past ten years, the sole owner of this corporation has become Jehovah's Witness.  Last year,my husband was diagnosed with multiple myloma.  He needed and received an autologous stem cell transplant, and afterwards required upwards of two dozen blood and platelet transfusions.  (Boy, are we happy he had good insurance!) And he's back at work, complete remission. (Thank you, Lord!) BUT the Jehovah's Witness religion forbids blood transfusions, even for life-saving purposes.  Does that mean that, at the owner's discretion, he could have been denied insurance coverage for this live-saving procedure, and the transfusions that kept him going until his bone marrow recovered?  No one has been able to answer this question.  BTW, this owner of the company is a good man who would not have ever considered this.  Anybody?

  •  CRAPPO (0+ / 0-)

    Do the objectors believe in killing innocent people?  Their tax money has paid for hundreds of thousands of people slain in the name of the U.S.  I'll bet they pay their taxes gladly with no moral compunction as to the weapons they will purchase.  This religious freedom argument is pure bullshit.  They pay taxes because they are required to.  No one has ever been absolved of their tax bill because they are some type of religious pacifist.  Why should they be absolved of their duty to their employees because they don't use condoms or whatever?  And, what do you ant to bet that at night, when the lights are out, the rubbers are out too?

  •  how exactly (0+ / 0-)

    did the corporation become Catholic ?  Was it baptized ?  (That would have been SOME baptismal font !)  Can it choose to convert (not its owner, the corporation itself) ?

    If a real estate corporation decides that it believes in segregation of the races, does it get to uphold those beliefs ?  

    This is another Looney Toons verdict from Janice Brown.

    •  They have the right to close their stores. (0+ / 0-)

      Hobby Lobby is ready to close all their stores, putting thousand out of work, instead of being forced to supply abortion causing drugs "the Morning After Pill" and I agree with them. The government should not be able to force them to provide those type of medicines if they are against it. Hobby Lobby is all so one of the few companies that are closed on Sunday to give their employees a day of rest.  

      Just ask the striking workers that worked for Hostess if a large company can shut down any time they want. The stockholders get their money and move on to invest in another business.

  •  A Company Should Have the Right to Not Supply Them (0+ / 0-)

    If a employee want a "morning after" pill, then they should pay for it themselves!

    The Hobby Lobby company is ready to close all their stores, putting thousand out of work, instead of be forced to supply abortion causing drugs and I agree with them. The government should not be able to force them to provide those type of medicines if they are against it. Hobby Lobby is all so one of the few companies that are closed on Sunday to give their employees a day of rest.  

  •  DC Circuit and Corporateness (0+ / 0-)

    Two points. This explains why Senate Republicans are blocking Obama's appointment to the DC Circuit which is now evenly divided between Republican and Democratic appointees but must, as in this case, draw from a pool of Senior Judges that were appointed 5 to 1 by Republican Presidents.

    Second, the Gilardi's are perfectly happy to treat their corporation as separate for purposes of shielding them from personal liability. It's nice be able to decide when you're separate and when you're the same.

  •  Employers provide coverage, not procedures (0+ / 0-)

    I am not very sympathetic to the Gilardi's moral concerns.  Their moral duty as owners of a corporation with employees is to provide medical coverage to those employees.  What medical services their employees use is, in my view, none of their business.  And since they are not choosing to have the abortion I don't see how it interferes with their morality.  The argument that they are paying for it is a red herring.  They are paying for medical insurance for their employees.

    I think this kind of lawsuit is a result of people whipping themselves up because they don't want abortion to be available for anyone.  They should just get over it.  I have to pay taxes for wars that I think are criminal and deeply immoral, and I seriously doubt the courts would be sympathetic to my argument that I shouldn't need to pay for them.

    Apparently I have made the unbelievably naive error of overestimating the intelligence of the American people.

    by Citizen Clark on Fri Nov 08, 2013 at 06:20:32 PM PST

  •  The dissent made more sense to me... (0+ / 0-)

    than the standing.  I had to read the starting paragraph of the diary again to figure out who won the ruling.

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