• xuinkrbin

    Like many headlines ending with a ‘?’, the answer is, “No”. The Supreme Court has long held general religious exemptions do not violate the Establishment Clause.

  • xuinkrbin

    To back up My reply, consider Corporation of Presiding Bishop v. Amos (1987) and walz v. Tax Commission.

    • Imani Gandy

      I don’t think the answer is as simple as that. See Estate of Thornton v. Caldor (1985) and Cutter v. Wilkinson (2005). These cases (plus Amos) are precisely why I posited my headline as a question. In fact, Eugene Volokh and Schwartzman et al. have been engaging in a very interesting debate about this, one that should be presented to SCOTUS, in my view.


    • Joe.02

      Gedicks and Van Tassell explain why such cases provide a different situation – it is not that “general religious exemptions” THEMSELVES violate the Establishment Clause.

      It is that the particular burdens all things considered of this particular one do. It is suggested you read their argument. You might still disagree with the reply has to be more nuanced than this.

  • Rabbi Dennis S. Ross

    This is a great article. That’s the whole point, from a moral perspective, In this situation, the decision of the person who earned the insurance and needs the birth control has a higher moral standing than her boss. The boss just has to fill out a form. The worker owns the insurance and needs health care. She comes first.

    • Bearpaw01

      “… the person who *earned* the insurance …”

      This is one of the things that conservatives happily gloss over in this discussion. They tend to refer to insurance as something that employers “give” to employees, I guess out of the kindness of their hearts. But no, it’s *earned*. The government has defined the minimum health insurance plan, just as it’s defined the minimum wage.

      How are Hobby Lobby et al arguments any different from saying, “No, you can’t use any part of the minimum wage paycheck you earn from us to buy contraception”?

  • UnEasyOne

    Pregnancy, childbirth and insurance for the resultant child/children are expensive! Therefore coverage of birth control is no burden for insurers, it’s a cost saving benefit – for them and others in the insurance pool. If all the insured women get pregnant, costs – and therefore premiums – will skyrocket.

    If I am a single guy, why should I be forced to pay extra to support some religious fanatic’s desires? That’s also a violation of MY first amendment rights.

    • UnEasyOne

      PS: Corporations are NOT people, and they should be afforded NO constitutional rights – especially when those rights are in conflict with actual, living, human beings. We need an amendment that states that clearly.

    • Joe.02

      I think the challenges here weak, but you will be forced at times to pay extra — if the
      ‘fanatics,’ e.g., don’t believe in contraceptives and have many more children, you will help pay the insurance to pay for the more expensive births and the resulting children in various respects.

    • Churchlady320

      You are NOT paying extra. There is a package which includes all manner of things you will never need just as women don’t need PSA tests and other procedures for men alone. It is just THERE. You do NOT pay extra for birth control, for anything. It won’t save you a dime if it were removed, so the issue is for employers – get over it because it costs you nothing and its use is up to the employee whose HEALTH CARE IT IS.

  • aspromised

    These companies choose to compete and want all the benefits of participating in the marketplace, but won’t behave like grown-ups. Also, surely SCOTUS can see the slippery-slope here because the same principle can then be used by any religions (ex. blood transfusions, transplants).
    Employers do not OWN their employees and yes, we should then fully expect to see owners sued by their workers as the article suggests — and rightly so!

    • Churchlady320

      Exactly. And because others such as Jehovah’s Witnesses who personally don’t believe in transfusions understand that the law does not make them pay for it – that it is just IN the law for anyone to use or not – this will be a very important distinction. It is absurd for any religious group to demand an exemption from something they already don’t pay for.

  • Trollface McGee

    An interesting and valid argument.
    I would still like to see an Establishment Clause challenge – the government, by allowing corporations to deny health care based on the corporation’s religious beliefs is denying the employees their religious freedom. After all, nothing says that religion = denying birth control – what about all the people, religious or not, who don’t believe there is anything wrong with abortion and BC? Why do they get their religious rights trampled on.
    I think the right has been successful for a long time in equating religion with right-wing political beliefs but that is not reality. Millions of religious people do not share those values and atheists also have the right to not have someone else’s religious beliefs forced on them.

  • Joe.02

    I don’t know if the argument will win out but it at the very least is part of the ultimate problem here. Looked closely, the other side basically either is going to result in special exemptions (there already is an “abortion exception” that is being used here by challengers to apply to something that objectively speaking is not an abortion — Plan B) or such a broad exemption that consistently will require for profits to discriminate by sex or race on religious grounds.

    The burden on employees to me also raises free exercise concerns — as U.S. v. Lee, which to me still makes this an easy case, says: “Granting an exemption [here] to an employer operates to impose the employer’s religious faith on the employees.” The result burdens free exercise rights of the employee, who wishes to use their own money earned from working in a way to best protect their health pursuant to their own religious beliefs.

  • Churchlady320

    Businesses and religious organizations accepting tax dollars to operate all come under the provisions of the Civil Rights Act that requires equal accommodation not for just race but also religious beliefs (including having no religious beliefs). There is simply no justification for any entity trying to weasel out from their obligation not to discriminate against their employees. Religious groups have the option of not taking tax dollars to do their business – hospitals, colleges and universities, charities may be funded exclusively as religious organizations and thus hire exclusively from their religious pool and operate as religious organizations that are exempt. But once they take tax money, they must honor this nation’s diversity. All businesses must do the same.

    • noxioux

      So, how much tax revenue do you think Hobby Lobby receives for operational expenses? I’m thinking the amount should be somewhere near what, zero? You have no more right to tell them to pay for contraception than they have to force you to buy craft paper with pictures of baby Jesus on it.

      So, while you’re stripping the corporations and other collective entities of the religious protections under the 1st Amendment, are you all going to strip them of the rest of their 1st Amendment rights? Maybe you should go ahead and strip them of their due process rights while you’re at it. If you’re going to declare them non-persons, then they can’t have any constitutional rights. Right? Make sense?

      Fortunately, it doesn’t make any sense. The fact is, there’s TONS of precedent defending corporate personhood, and they’re protected under the constitution. Deal with it.

      The corporation has no right to impose it’s religious beliefs on it’s employees. But conversely, the government has no right to impose undue restrictions on the religious beliefs of these collective entities either.

      So really, the solution is easy. Scrap the poorly crafted, ill-conceived law that’s obviously flying in the face of the establishment clause in both directions.

      We need to be tolerant and gracious about our differences. But honor doesn’t mean you have the right to force me to pay higher premiums to pay for your morning-after pills.

  • noxioux

    After the flying triple-cartwheels they turned to allow the ACA under the commerce clause, I doubt this will give them any trouble at all.

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