THE SUPREME COURT, CONTRACEPTION, THE CONSTITUTION AND SANITY

HOBBY LOBBY AND CONESTOGA WOOD VERSUS SIBELIUS (SECRETARY OF HEALTH)

America’s unique system of Justice and the power of the Supreme Court to interpret and make law is on public display in a landmark trial which essentially is deciding whether a for profit company, on the basis of the owners’ religious beliefs, can decide on whether they must carry out an Act of Congress. The section of the act that they object too does not impinge on their own personal rights but rather would have the effect of depriving their female employees, who number tens of thousands, of benefits under the said Act.  Oral arguments were heard on the dispute earlier this week.

The burden of this case is that two public firms, Hobby Lobby and another Conestoga Wood, have argued that it is against their corporations’ religious beliefs to include contraception benefits, as part of their medical insurance package, which they negotiate on their employees behalf. The reason they do not want them to have these legally mandated benefits included is that they perceive that a few of the contraceptives, such as the intrauterine device, (IUD), may result in an abortion. 

Contraceptive benefits were mandated in the Affordable Health Care Act, (AHCA -  Obamacare). The owners are therefore arguing that their corporations  have religious beliefs - the cases are brought about by the corporations, as they the owners have no locus standi to do so. As individuals, the owners, are not being forced to use this contraception and or buy a policy that insists on giving them these options. Put another way these employers could not bring this case themselves as they are in no way necessarily personally disadvantaged by the law. The issue therefore does not impact on those who are the plaintiffs in this action but rather third parties, their employees. The latter would be effectively deprived of their rights under the AHCA as a result of the owners of the companies,  they work for, religious beliefs.

AMERICAN CONSTITUTION

What is so unique about the American Judicial system is that the case is not decided only on the basis interpreting the laws of Congress and legal precedents that may relate to the issue but whether or not the law is "constitutional" or not. The American Constitution was adapted in 1787 and is the supreme law of the land. 

The problem is that the rights of an individual are not very explicit and have to be interpreted.

The American Constitution’s First Amendment, inter alia, states that the following:

It forbids the government to establish an official religion and creates the separation between Church and State. It also has a “free exercise” clause that basically stops the government from interfering anyone’s right to practice their religion. (The First Amendment also incidentally deals with an individual's right to Freedom of Speech).

It is within in this framework in addition to the Laws of Congress and legal precedents, that the Supreme Court have to decide whether the “corporations” are entitled to deny their employees a provision of the AHCA, on the basis of what the "corporations" religious beliefs are. 

POLITICS OF COURT

There is no doubt that there are interest blocks within the court. There are those appointed by Democrats who tend to favor individual rights and there are those appointed by the Republicans that tend to favor corporations over individual rights. The latter are in the majority and in the last 8 cases involving corporations and individuals the court by 5- 4 voted in favor of corporations 7 of the 8 times. 

The court’s dynamics have changed dramatically since Associate Judge Sandra Day O’Connor resigned. Although appointed by Ronald Reagan she was a true swing vote definitely voting in favor of women’s issues. This is regarded as a women’s issue. The fact that the corporation has no objections to vasectomies and the prescribing of viagra shows that they are not against men's sexual and contraceptive rights. There are also pro amico briefs before the court supporting this as a women’s rights issue. There is in addition a brief from the American Obstetric and Gynecology College stating that what the corporations are objecting too are not abortifactants. Women’s rights groups have stated that it will be a disaster if the corporations’ viewpoint is upheld as millions of women will be denied contraception.

It is interesting to note that the three most vigorous protagonists on the Court of the contraceptive clause in the Obamacare law are women albeit that they are democrats.

THE ARGUMENT AGAINST THE PLAINTIFFS - HOBBY LOBBY AND CONESTOGA WOOD

Associate Justice Kagan was quickly out of the stalls to attack the corporations’ argument. She maintained what would happen if  different corporations stated that they had a religious belief against  one or other of the following - the sex discrimination act, family leave act, minimum wage laws, and child labor laws? There was no limit to what could be argued as to what a religious belief might be.

This was the view held by Associate Justice Scalia in 1990 in a precedent to this case. Scalia maintained then that if religious entities, (and it is important to note that the Plaintiff Corporations are not even religious entities), were to claim exemption to generally applicable laws it would create anarchy. Scalia who wrote the opinion stated that  there may be religious objections that might even include social security, environmental laws, animal cruelty laws and the like.

There could be no end of corporations arguing there religious beliefs. What about massive employers like Walmart or Exxon  It is interesting to note that Obamacare has given dispensation to real religious organizations and their ancillary bodies such as churches and their hospitals. So this argument is by a non religious corporation whose owners just happen to have personal religious objections.

Also it is on its face ridiculous that individuals can hide behind their corporations to impose their beliefs on others. They are not arguing for their own rights rather for the right to deprive others of their rights.

THE REASON WHY THE COURT WILL SUPPORT HOBBY LOBBY AND CONESTEGA WOOD.

Central to the reason why an individual, who happens to be a large employer, can foist his religious beliefs on thousands of others and deprive them of their legal rights is as a result of a recent Supreme Court’s decision. In what has become known as the Citizen's United decision this court by 5 votes to 4 decided that a corporation was an individual in that it was entitled to freedom of speech. Freedom of speech like religious freedom is included in the First Amendment. So the Court has already ruled that corporations are individuals under the First Amendment.

So therefore it is not the owners that are the plaintiffs but rather their corporations whom this court has deemed has the same rights of individuals under the First Amendment. The fact that this is tautologous nonsense in Jay H. Ell’s humble opinion, is irrelevant. 

So the owners of the two corporations can claim that their corporations have the same rights as individuals and therefore can have religious beliefs and therefore as individuals they can protect their religious beliefs!

Now that it has been established that corporations are individuals and can have religious beliefs there is another law that was passed in 1993 whose intent was to protect an individual’s religious rights. The law is entitled the Religious Freedom Restoration Act. The law provides exemptions in certain situation for those individuals who hold strongly held religious beliefs. For example, if a Muslim or a Jew or the Pope insisted on wearing a skull cap in a court where hats were not allowed he could seek recourse under this law.The law is written to enshrine the religious rights of individuals in terms of the constitution. 

It is believed that if Scalia votes for the plaintiffs he will use the argument that as corporations are now individuals this law can apply to them who as individuals  have strongly held political beliefs. This not withstanding his 1990 opinion where he forcefully advocated that this type of decision would lead to anarchy.

The only hope of some sanity in the conservative judges’ oral arguments was from Chief Justice Roberts whose court and legacy this is. He was leaning to say that the only corporations, that were non public ones or ones that were partnerships could be regarded as individuals. This would prevent large companies such as Walmart from being able to claim that they were individuals. Jay H. Ell does not follow the logic in this but hey he is no jurist.

Jay H. Ell is also no constitutional expert either but he really believes that the relevant clause in the Constitution was to allow individuals to hold their religious views and practice and not be discriminated against. He cannot conceive that the Founding Fathers were protecting Hobby Lobby’s owners rights in the form of their corporation to deny other individuals their legal rights.

One would hope Chief Justice Roberts will act as he did in the Obamacare challenge and bring some sanity to the verdict. He must know how ridiculous this will all look, particularly in retrospect. (Already the Citizens United precedent declaring corporations individuals has reeked havoc in the political system). Not to mention the fact that millions of women are being deprived of their rights as a result of the beliefs of third parties whose rights are not being challenged. His legacy, if this carries on, will be not be highly regarded from a legal and societal point of view.