Arizona at it again

[Jacob1983]

You rang?

[Winehole23]

David Gans replies to Lay :

Professor Lay derides as a “s game” the government’s argument that secular, for-profit corporations and their corporate owners are not en led to invoke RFRA to claim a religious exemption from neutral, generally-applicable business regulations. But Professor Lay ignores the basic fact that business corporations and their owners have always been treated differently from individuals when it comes to fundamental rights, such as the free exercise right, that protect freedom of conscience and human dignity. Surely if Congress were doing something so revolutionary as recognizing for the very first time in our nation’s history that secular, for-profit corporations can exercise religion, the legislative history would have been crystal clear. But speculation and bits of post-hoc legislative history are all that Professor Lay offers. For all his labors, Professor Lay has failed to point to any convincing evidence in the RFRA legislative record that Congress intended to grant free exercise rights to secular businesses.

http://www.balkin.blogspot.com/

[boutons_deux]

The key issue is whether Religionists' or other freaky orgs', morals and ethics trump, supercede civil law.

The key fear is that right-wing extremist SCOTUS will decide for the Hobby Lobby Corporate-American to dictate "his" morals to "his" Human-American employees.

iow, you work for me and I can therefore judge, dictate your private behavior. aka, the (Christian) Taleban.

[Winehole23]

Eugene Volokh in WaPo. Relevant to the upcoming Hobby Lobby case before SCOTUS as well:

The Hobby Lobby case is about to be argued this week, so talk of religious exemptions is in the air. But what exactly is the law here, even beyond the particular details of Hobby Lobby? When can religious objectors go to court to get exemptions from generally applicable laws (whether drug laws, employment regulations, driver’s license photograph requirements, or whatever else)?

Glad you asked! There’s no simple answer, but here are a few commonly asked specific questions, with answers that can help you navigate the complexity.


1. What’s with religious people getting exemptions? I thought the Supreme Court said that wasn’t required. For most of American history, courts generally didn’t see the Free Exercise Clause as requiring exemptions for religious objectors. But in Sherbert v. Verner (1963), the Supreme Court said that such exemptions were presumptively required, unless the government could show that denying the exemption was necessary to serve a compelling government interest.


Then, in Employment Division v. Smith (1990), the Supreme Court changed its mind, by a 5-to-4 vote. The Free Exercise Clause, the court held, basically just banned intentional discrimination against a particular religion or religious people generally. With a few exceptions (such as for churches’ decisions about choosing their clergy), religious objectors had to follow the same laws as everyone else, at least unless the legislature specifically created a religious exemption.


The lineup in that ruling, by the way, was interesting: conservative Justice Antonin Scalia joined by conservative Justice William Rehnquist, moderate conservative Justice Anthony Kennedy, moderate Justice Byron White, and moderate liberal Justice John Paul Stevens voted for the nondiscrimination rule. Moderate conservative Justice Sandra Day O’Connor — joined by liberal Justices William Brennan, Thurgood Marshall and Harry Blackmun — disagreed, and wanted to preserve the Sherbert cons utional exemption regime.


But wait. Congress didn’t agree with Smith, and so it enacted — by a nearly unanimous vote — the Religious Freedom Restoration Act of 1993, which gave religious objectors a statutory right to exemptions (again, unless the government could show that denying the exemption was necessary to serve a compelling government interest). In City of Boerne v. Flores (1997), the court said this exceeded congressional power over the states, but RFRA — pronounced “riffra” — remains in effect for the federal government.


Moreover, since 1990, 17 states enacted similar “state RFRAs” that government state and local governments. One state (Alabama) enacted a cons utional amendment that did the same. Eleven states’ courts interpreted their state cons utions’ religious freedom clauses as following the 1963-1990 Sherbert model. And one state’s high court (in New York) interpreted the state cons ution as applying a less protective religious exemption regime, somewhere between the old Sherbert approach and the Smith approach.

http://www.washingtonpost.com/news/v...-the-confused/

[boutons_deux]

Justice Scalia's Past Comes Back To Haunt Him On Birth Control

When the Supreme Court hears two landmark cases about birth control on Tuesday, few observers doubt that Justice Antonin Scalia's sympathies will be the Christian business owners who charge that the mandate violates their religious liberties.

The Reagan-appointed jurist is a devout Catholic who has extolled "traditional Christian virtues" and insists the devil is "a real person." He even has a son who's a Catholic priest. He voted in 2012 to wipe out Obamacare in its entirety and has been President Barack Obama's most outspoken foe on the Supreme Court.

And yet, Scalia's past jurisprudence stands contradictory to the argument for striking down the Obamacare rule in question, which requires for-profit employers' insurance plans to cover contraceptives (like Plan B, Ella and intrauterine devices) for female employees without co-pays.

In 1990, Scalia wrote the majority opinion in Employment Division v. Smith, concluding that the First Amendment "does not require" the government to grant "religious exemptions" from generally applicable laws or civic obligations. The case was brought by two men in Oregon who sued the state for denying them unemployment benefits after they were fired from their jobs for ingesting peyote, which they said they did because of their Native American religious beliefs.

"[T]he right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability," Scalia wrote in the 6-3 majority decision, going on to aggressively argue that such exemptions could be a slippery slope to lawlessness and that "[a]ny society adopting such a system would be courting anarchy."

"The rule respondents favor would open the prospect of cons utionally required religious exemptions from civic obligations of almost every conceivable kind," he wrote, "ranging from compulsory military service, to the payment of taxes, to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races."

That opinion could haunt the jurist if he seeks to invalidate the birth control rule.

"Scalia will have to reckon with his own concern in Smith about the lawlessness and chaos created by liberal exemptions to generally applicable law," said Adam Winkler, a cons utional law professor at UCLA. "For him to uphold an exemption now is to invite more of the lawlessness that he warned about."

Michael C. Dorf, a law professor at Cornell, also addressed the tension.

"Justice Scalia's opinion in the Smith case offered a number of grounds for the conclusion that the Free Exercise Clause does not en le religious objectors to exceptions from neutral laws of general application," Dorf wrote in SCOTUSblog, observing that Scalia also posited that judges weren't "competent" to decide which religions were deserving of exemptions.

In response to Scalia's decision, Congress passed the Religious Freedom Restoration Act in 1993, which says any law that "substantially burden[s]" a person's exercise of religion must demonstrate a "compelling governmental interest" and employ the "least restrictive means" of furthering that interest. That's the basis under which Hobby Lobby and Conestoga Wood, two businesses with religious owners, are suing for relief from the birth control rule.

And that might offer Scalia an escape hatch. Experts say he could conceivably decide that the First Amendment doesn't permit a religious en y to be exempt from the law but that RFRA suffices to let Hobby Lobby and certain others off the hook from the birth control rule. But even then, the RFRA argument isn't clear-cut. Nineteen Democratic senators who voted for the law in 1993 have filed an amicus brief insisting that it doesn't -- and was never intended to -- give for-profit companies a pass on the law.

It's up to Scalia and the other justices to parse that question. If he axes the mandate on the basis of RFRA, he still has to contend with his earlier argument that such an outcome carries grave dangers for the rule of law.

"To permit this," he wrote in Smith, quoting from an old court decision, "would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself."


http://talkingpointsmemo.com/dc/anto...-birth-control

the extreme right-wing SCOTUS has destroyed lots of stare decisis, so I don't see any obstacle to Scalia destroying his previous decision.

[boutons_deux]

"On the key issue in the case, it was unclear during a 90-minute oral argument whether the court would say that the companies could have an exemption that would allow them to avoid providing the coverage. On a threshold question, a majority of justices appeared likely to rule for-profit corporations do have a right to make religious claims."

http://www.reuters.com/article/2014/...edName=topNews