Category Archives: Supreme Court

Hobby Lobby

Now, before you all lose your collective shit, I want to remind everyone of one critical fact:

The Supreme Court doesn’t exist to make the morally right decision.

I’m going to repeat that, blockquote it, and bold the damn thing because it’s that important.

The Supreme Court doesn’t exist to make the morally right decision.

Now, I know that this may come as a shock to most of America. But then, Americans have never exactly had a good grasp of civics. In fact, some of the worst law comes from the Supreme Court trying to work a moral decision into the law. When you already know the outcome you want, and you start looking for any legal justification you can muster for that outcome, you’re bound to stretch in the wrong places.

No, the Supreme Court exists to make the legally right decision. And no matter your view on Obamacare, the mandate, religious liberty, and contraception, I think the Court in this case made an entirely justifiable decision that is consistent with the law.

Let’s break it down.

  1. Congress has declared in the ACA a compelling government interest in ensuring that women have insurance coverage for contraception.
  2. They have created a national health insurance mandate forcing employers (of a certain size, etc etc) to cover the cost of said contraception.
  3. In 1993, Congress passed the Religious Freedom Restoration Act, which requires that laws which violate someone’s religious beliefs must pass two conditions:
    • The law must be furthering a compelling government interest.
    • The law must be the least intrusive method of accomplishing its goal.
  4. Congress has created an exemption to the contraception mandate. If the mandate violates the religious beliefs of certain types of organizations, they have passed the burden of cost to the insurance provider or to the government itself.

So what’s the takeaway? Nothing in Hobby Lobby decision will stop women from having access to birth control. In fact, the way the system is set up, they will still have insurance coverage for free birth control!

Congress’ exemption ensures that insurance will cover these costs, even for women working for Hobby Lobby. This cost will not come out of the worker’s pocket. In fact, the very alternative accommodation that Congress created was pretty much the only reason that the Supreme Court didn’t force Hobby Lobby to pay for the insurance (from Lyle Denniston’s analysis @ SCOTUSblog):

Is that enough of an accommodation of the owners’ religious objection? The two key opinions on Monday seemed, literally speaking, to say it was.

Justice Alito wrote: ”An approach of this type . . . does not impinge on the [companies’ or owners’] belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves [the government’s] stated interests equally well.” (The government’s interest here is to assure that women have access to the birth-control services.)

Alito’s opinion for the Court went on, saying that the dissenters’ on Monday had identified “no reason why this accommodation would fail to protect the asserted needs of women as effectively as the contraceptive mandate, and there is none.”

Justice Kennedy, in his separate concurring opinion, made the same point. And, in fact, he was more emphatic. Taking note of the “existing accommodation the government has designed, identified, and used for circumstances closely parallel to those presented here,” Kennedy said flatly that “RFRA [the Religious Freedom Restoration Act] requires the government to use this less restrictive means.”

It is rather difficult to read those comments by those two Justices as anything other than a declaration that religiously oriented owners of closely held companies must be satisfied with letting the “middle man” take on, in their place, the obligation to provide the birth-control coverage. That, the comments seem to say, is good enough.

If there was no alternative accommodation in the law to cover the cost of insurance for contraceptives, the correct legal result would have been to force Hobby Lobby to pay for it. After all, I don’t think any justice disputed the idea that an insurance mandate for contraceptive coverage was NOT furthering a compelling government interest. The only question was whether the compelling government interest was satisfied in the least intrusive means consistent with the RFRA. The Court found that it was.

Now, back to the lede. Many of you out there think that it’s absurd that a corporation would be exempted from providing basic health insurance because God says contraception is abortion. And many of the rest of you think that it’s unconscionable that someone be forced to pay for something that goes against their most closely held religious beliefs; in essence funding murder. And the libertarians out there worry that if the government can make you pay for something that violates one of your First Amendment rights, there’s nothing they can’t make you pay for. These are all moral questions. These are not legal questions. The Supreme Court didn’t even try to answer these questions.

The Supreme Court found a legally consistent way to accommodate the compelling government interest declared in the ACA and the least restrictive means test demanded by the RFRA. And at the end of the day, lest I repeat it one more time, the net result is that Hobby Lobby employees will still have insurance coverage for all the free contraceptives they care to use.

Seems pretty cut and dried to me. This is much ado about nothing.

UPDATE: Now that I’ve actually read the ruling, I see an error in the above. The HHS accommodation for employers who have religious objection to these methods of contraception TODAY only applies to religious non-profits. It doesn’t apply today to for-profits. The argument of the court is that applying the accommodation to for-profit employers is a less-restrictive means to achieve the compelling government interest than the mandate, and for that reason the mandate violates RFRA. I would expect the HHS to quickly expand their accommodation in response to this ruling.

Freedom, Group Identification, and Consequences

To anyone trying to make the Cliven Bundy issue, or the Donald Sterling issue, or the Brendan Eich issue about freedom of speech…

…PLEASE STOP…

They are unrelated, and MOSTLY irrelevant, to free speech.

None are a question of freedom of speech.

All three are a question of bad PR and violating contract terms.

These idiots are not victims of oppression… at least as far as speech goes.

“Well, that’s just your perspective… this is mine”

No… You can have your own opinions, you cannot have your own facts.

This is not an opinion or a perspective, it is a fact. In making this argument, you are entirely and completely incorrect, in both fact and in principle…

That’s not so bad… it’s OK to be wrong… everyone is wrong about many things, every day.

What IS so bad, and why you must be corrected, is that by passionately advocating such a patently false viewpoint, and making weak and specious arguments to support it, you weaken the very important ACTUAL battle to restore and maintain free speech.

Using bad arguments for your cause HURTS your cause, it does not help it.

There are some very serious threats to free speech in this country, particularly on college campuses and in schools. There are supreme court cases in this session, and coming up addressing these issues right now… and the picture is decidedly mixed.

    We are dangerously close to criminalizing, or at least accepting some kind of official sanction, on “hate speech” in this country. We already HAVE criminalized “suspect motivations”, through “hate crime” law.
    The Government is spying on and intimidating reporters, with the DOJ going after those it perceives as enemies.
    Witnesses are being suppressed out of fear of government retaliation.
    The IRS has gone after conservative political groups, simply for being conservative.
    We have enacted insane regulations about who can say what, when, and with how much and whose money, when it comes to politics and elections.

These are HUGE REAL PROBLEMS.

By equating things which are not about rights and freedoms, to things which are, you weaken rights and freedoms, and make them more difficult to defend.

Freedom of speech means you have the right to say as you damn well please and the government can’t stop you or punish you for it (except in some very strictly limited ways).

It doesn’t mean that private persons or organizations have to publish you, support you, employ you, associate with you, provide you with a forum or an audience, or listen to you.

Freedom of speech does not mean freedom from consequence.

If you can’t back everything you say, and accept the consequences, then perhaps your problem is not one of lack of freedom, but of lack of courage.

“But… but… political correctness… thought police… BAD”

Yes.

I never said that political correctness WASN’T a chilling force on freedom of speech and even freedom of conscience… Of course it is.

…But that is not the same as government using force against you because of it (though with “hate speech” and things like campus “speech codes”, we have to be very careful of that).

The problem with believing in freedom is that you have to believe in it for everyone, including people you don’t like, or whose ideas you don’t like, or who do bad things with it.

Private individuals and organizations can choose who they wish to associate with freely, and who they wish to support or oppose freely (or at least they are supposed to be able to).

That means both things and people that you like, and things and people that you don’t.

That means you can be fired for expressing yourself. It means you can be fired for your political and social views. It means you can be fired for your private behavior. It means you can lose your customers, your money, your reputation…

In fact, everything but your life, and your freedom.

A free society means we have to put up with that.

We don’t have to like it, but we DO have to put up with it.

And many of us actually have very little problem with it… so long as it’s aligned with THEIR personal beliefs.

Frankly, I don’t see very many “social conservatives” complaining very much when it’s “progressives”, gays, atheists, muslims, “perverts” etc… who experience negative consequences for their beliefs (admittedly, that is certainly not true of all. Some do decry all of this as suppression of free speech and freedom of conscience).

Most “social conservatives” aren’t complaining when church groups or conservative groups try to get certain things banned, or removed from libraries or schools, or have teachers, or school administrators, or abortion providers fired…

…because you don’t like their ideas or how they express them.

…Really, most anyone who you would identify as the enemy, or the “other side” or whatever other outgroup identification it may be…. seems it’s ok to you if THEY have to live with the consequences of their choices, actions, and words…

Most of you are only complaining when it’s happening to those you identify as YOUR ingroup, or for people whose opinions and ideas you agree with.

Again, not always, not everyone… but most.

The same of course is true of “the other side”… starting to see the point yet?

So really… What you’re asking for is not “freedom of speech”, it’s “freedom of speech that you like”, and freedom FROM both speech, and consequence that you don’t.

That’s not freedom. That exactly the same as “the other side”… you just like the opinions better.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

It isn’t, wasn’t, aint ever gonna be…

I mentioned Social Security as an entitlement payment in my post on the government shutdown, and it raised a fairly common objection in several who read it:

They don’t think of Social Security as an entitlement, or a welfare payment; they view it as their right, by virtue of having contributed to the system for their entire working life.

So, time to correct a very major, and unfortunately common, misconception.

Social Security, is NOT a pension, nor is it insurance.

Now, I realize that the majority of the American public believe this is so, because they have been deliberately defrauded by our government…

First read this to understand the scope and scale of the fraud, and the problem it (now only vestigially) masks:

The Greatest Fraud in the History of the Human Race

Ok… so, by now, most people understand that Social Security, as it is, is essentially a legal Ponzi scheme (whether they accept that, or admit it… if they can do basic match, they at least understand it).

What I really didn’t fully appreciate until recently, is that often, even people who understand this is true, don’t understand why or how it got that way.

There is a very common misconception, even among otherwise economically, historically, and legally well informed and educated people, that the current state of Social Security is somehow a twisting of what it was intended to be, or taking advantage of loopholes etc…

Many people believe that Social Security was set up to be an annuity based insurance and pension plan. That paying FICA contributions was supposed to buy you into a long term annuity, or investment plan, and that your Social Security payments were intended to be the product of that investment.

They think that the “trust fund” exists, and was set up to collect and invest the contributions of the workers who paid into it, so that the investments would fund the workers retirements.

They believe that the problem with Social Security is that congress has been raiding the trust fund since 1958 (most don’t know it was since ’58, but they are sure that’s why Social Security is broke).

Unfortunately, every bit of this idea is entirely incorrect… and people who hold that idea generally do so, because they were deliberately misled.

I’s simply not true… though many… perhaps most… people believe it is; but in fact, Social Security was always nothing more than a pyramid scheme, and an entitlement.

They misunderstand entirely… Because they have been deliberately deceived; as has been the majority of the population.

Social Security was NEVER, EVER, an annuity, pension, or insurance.

Actual insurance, annuities, pensions etc… were not part of the legislation that created it, or anything thereafter.

Also, there never was an actual “trust fund” as such… simply an accounting of surplus contributions which were, in theory, to be placed into low yield “no risk” treasury bonds.

Note, I said “surplus contributions”… this means contributions in excess of payouts to existing recipients. Because benefit payments are not made from the proceeds of investment, they are made using the payroll taxes of those currently paying in today (this is why we call Social Security a ponzi scheme… When Bernie Madoff does it, it’s fraud and he goes to jail. When the government does it, it’s… well it’s still fraud, even worse fraud… but no-one goes to jail sadly).

The sham of it, particularly the sham of the accounting trick they called the “trust fund” was publicly proclaimed as early as 1936 (by Alf Landon in his presidential campaign).

Social Security is, and always has been, a tax and entitlement distribution scheme.

The government lied, and called it insurance, but in fact it has never been anything other than a payments and distributions pool, funded by taxes.

You can look it up, in 42usc (the section of U.S. code defining the various programs known as Social Security).

The programs collectively known as Social Security are referred to as insurance several times, but in fact they very clearly are not. The legal definitions and descriptions make this very clear. Social Security is a tax and entitlement disbursement scheme, by act of congress.

There is no individual ownership, no accrued value, no capital gain, it cannot be transferred, and it can be changed (or removed), at will, by congress; without being construed as a taking without due process.

It is NOT INSURANCE.

Perhaps I am not explaining this properly…

It’s not that congress went against the intent, or written provisions of the law, and changed Social Security from what it was supposed to be, to what it is…

It’s that in fact, the law was NEVER what they told the American people it was.

In fact, if the law HAD been what they sold it as, then that law would have been declared unconstitutional by the supreme court (as had the earlier railroad pensions act, which actually DID created a property based pension scheme). It was specifically because it WAS a tax and distribution, that congress had the power to do it; and was argued thus before the court in 1937.

Helvering v. Davis clearly defines Social Security “Contributions” as a tax, and social security “benefits” as welfare payments. This is the basis for it’s constitutionality.

Fleming v. Nestor in 1960, reaffirmed that FICA is a tax, and that the “contributions” are government property, to be done with as the government sees fit; and that “contribution” through FICA did not cause one to accrue a property right to any asset, pension, or insurance scheme, nor did it create a contract consideration, right, or obligation on the part of the government. Further, it affirmed that “benefits” were NOT insurance or pension disbursements, but entitlements by act of congress, and that congress could change them at any time in any way they chose, without being construed as a taking under the 5th amendment (though they did say that they must have cause and due process to do so… but any legitimate cause within their purview would do).

Justices Black and Reich, specifically dissented from the majority opinion, explicitly and expressly addressing the issue of property rights. They believed that such contributions, to such a program, SHOULD as a matter of moral and public good, be considered property, and have property rights attached. They acknowledged however that the law as written did not, and that by strict interpretation the majority was correct… They just thought it was better to make it property anyway.

Unfortunately, it’s not… It is neither a pension or insurance, and never has been, from the very beginning.

However, almost every explanation ever given the public, and in most documentation, it is referred to as insurance, or even a pension.

All as part of the greatest fraud in the history of the human race.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

The Constitutional History Lessons You Didn’t Learn in School

More often than not, history is written by the winners and taught by individuals who love big government. Tom Woods’ Liberty Classroom has been providing a refreshing non-P.C. presentation of history that is rarely brought up. Very little of what we call history either is “settled” without controversy or without lingering questions.

• What is the true philosophical inspiration for the Declaration of Independence?
• What is the meaning of “natural law” and “natural rights”?
• Was the American Revolution just about “no taxation without representation”?
• Was the Articles of Confederation really inadequate for the needs of the several states?
• Was the Constitution itself legally drafted and adopted in replacing the Articles of Confederation?
• How controversial was the Constitution previous to its ratification?
• Was it originally the intention that the union would be perpetual? (i.e. Was it the common understanding during the ratification debates that states could leave the union or not?)
• What did the founders think about states nullifying federal law?
• Was the American Civil War (or “War Between the States”) really about slavery?
• Might slavery have ended without war?
• Was the Supreme Court intended to be the final arbiter of both state and federal law?

These questions and more are explored in Tom Woods’ Liberty Classroom. The video below “German and British Antecedents [to the U.S. Constitution]” is the first of 15 videos available for free from Liberty Classroom (watch the rest here,). Each lecture runs for about 25 minutes. Enjoy!

Gay Marriage, Religious Rights, and Freedom of Association

(Re-post: originally posted November 23, 2008)

California’s Proposition 8, the ballot measure aiming to outlaw same sex marriage, passed on a very close vote. Prop 8’s supporters* pushed a campaign of fear, misinformation, and a complete distortion of the meaning of individual liberty. This campaign commercial is typical of the intolerance and hysteria being promoted from the “yes” campaign.

Argument #1: Churches could be forced to marry gay people.

Argument #2: Religious adoption agencies could be forced to allow gay couples to adopt children; some adoption agencies would close their doors as a result.

Argument #3: Those who speak out against gay marriage on religious grounds will be labeled “intolerant” and subjected to legal penalties or social ridicule. Careers could be threatened.

Argument #4: Schools will teach students that marriage is between “party a” and “party b” regardless of gender. Schools also teach health and sexuality and would now include discussions of homosexuality.

Argument #5: There will be “serious clashes” between public schools and parents who wish to teach their children their values concerning marriage.

Argument #6: Allowing gays to marry will restrict or eliminate liberties of “everyone.” (Example: Photographers who do not want to work at same sex weddings)

Argument #7: If Prop 8 fails, religious liberty and free speech rights will be adversely affected.

My response to these arguments is that we should be advocating for more freedom for everyone rather than restrict freedom of a group or class of people. The state should recognize the same contract rights** for a gay couple as it would between a man and a woman. To get around the whole definition of marriage issue, I would propose that as far as the state is concerned, any legally recognized intimate relationship between consenting adults should be called a “domestic partnership.” From there the churches or secular equivalent to churches should have the right to decide who they will marry and who they will not (just as they do now).

Rather than subject an individual’s rights to a vote or either party forcing their values on the other, we should instead advocate freedom of association and less government in our everyday lives. Somewhere along the way, we as a people decided that the government should involve itself more and more into the relationships of private actors. The government now has the ability to dictate to business owners quotas of who they must hire, family leave requirements, how much their employees must be paid, and how many hours they work (among other requirements). For the most part, businesses which serve the public cannot deny service to individuals for fear of a lawsuit.

A return to a freedom of association society would remedy arguments 1, 2, 6, and 7 from this ad. As to Argument #3, the anti-gay marriage folks are going to have to realize that in a free society, they are going to have to deal with “social ridicule”*** or being called intolerant. Anyone who takes a stand on any issue is going to be criticized and called names. In a freedom of association society, an employer would have every right to decide to layoff individuals who hold views or lifestyles they disagree with.

While we’re on the subject of intolerance, perhaps we should take a moment to consider if people who would deny equivalent rights which come with marriage are intolerant. This ad is exactly the same as the previous ad except that the words “same sex” and “gays” have been replaced with “interracial.”

Believe it or not, there was a time in this country when there were such laws against interracial marriage. Those who argued against interracial marriage made very similar arguments to what the anti-gay marriage people are making now. Today most of us would say those people were intolerant.

Intolerance aside, Arguments 4 and 5 can also be answered by reducing the role of government in our lives. What the “yes” people should be arguing for is a separation of school and state. While we as a nation are trending toward more government involvement in K-12 education, those who do not want the government schools to teach their children the birds and the bees or enter into discussions of homosexuality can put their children in private schools which share their values or home school. School Choice is the obvious answers to these concerns.

Prop 8’s supporters have turned the whole idea of individual liberty on its head. They claim that in order to preserve the rights of the greatest number of people a minority of people necessarily must sacrifice their rights. This is absurd and dangerous. Perhaps it is this complete misunderstanding of individual rights among Californians which contributed to Prop 8’s passage.

When explained properly, the rights of life, liberty, and property is the easiest concept to understand.

Hat Tip: The Friendly Atheist

Posted Elsewhere:

Dan Melson @ Searchlight Crusade has written a very thought provoking post on this issue. Some of his arguments I agree with, others I don’t but all of his points are well argued.

» Read more

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