Religion, Liberty

The New York Times vs Religious Freedom

Supreme Court Justice Sonia Sotomayor has issued a stay against the federal government from imposing the contraception mandate on Little Sisters of the Poor, perhaps the most famous non-profit challenger to the mandate and to all Roman Catholic non-profits who use the same health plan, the Christian Brothers Employee Benefit Trust). This is a big deal, as it shows that even a “liberal” justice thinks something is seriously wrong with what the feds are doing to religious non-profits. So the contraception mandate is big news, once more.

I’ve said enough about why I think the contraception mandate is illiberal and immoral. But the New York Times editorial board’s Christmas defense of the mandate is awful and needs to be identified as such.

The brief article criticizes Federal District Court justice Brian Cogan for exempting some religious non-profits (not Hobby Lobby) from having to notify insurance administrators that they object to contraception coverage. I won’t address this issue, though it is considerably more complicated than the NYT lets on. The outrage comes in the last sentence:

What Judge Cogan missed, and the justices need to recognize, is the threat to religious liberty comes from employers trying to impose their religious views on workers.

It is one thing to say that Cogan got it wrong. It is another thing entirely to say that these non-profit employers are trying to “impose their religious views” on their workers. A small number of employers are refusing to buy generally cheap contraception for their employees. They’re not restricting their employees’ liberty at all. If John refuses to buy Bob a condom, on no plausible understanding of religious liberty is John imposing his religious views on Bob. I can sort of understand the claim that these employers are failing to provide proper medical care to their employers, but it is just false to say that employers are restricting liberty. That is an abuse of the English language.

Worse is the NYT’s claim that the threat to religious liberty with respect to the contraception mandate is from a small number of non-profit religious employers, rather than the federal government. The federal government is plainly coercing these religious non-profits and in general has infinitely more power over our day-to-day lives than Little Sisters of the Poor. To say that religious non-profits pose more of a threat to liberty than the federal government would be seriously confused. But to deny that the federal government poses a threat is unacceptable.

We see here some of the worst moral blind spots of the elite center-left attitude towards government, which the NYT exemplifies. They are so statist that they cannot see the federal government as a threat and so confused about the nature of liberty that they misapply the concept in the most rudimentary manner.

  • I don’t find your position convincing. If an employer, on religious grounds, can force employees to spend money that the employee would not otherwise be required to spend to avail themselves of resources guaranteed to them by the government that seems to me to be a case of the employer imposing their religious views on the employees.

    • Kevin Vallier

      I wish I could understand your position, which I don’t find remotely plausible. You say “If an employer, on religious grounds, can force employees to spend money,” but where’s the force? There is none.

      • You left out the rest of my condition. I said “If an employer, on religious grounds, can force employees to spend money
        that the employee would not otherwise be required to spend to avail
        themselves of resources guaranteed to them by the government …” The force is that the resources should be available to the employee at no charge. To get them under the conditions you support, the employee is required to spend money. That’s a form of force.

        • Kevin Vallier

          I’m sorry, but I don’t see it. The employer’s action isn’t force just because the resources “should” be available to the employee for free. How could that particular normative fact make an action coercive?

          • You don’t consider theft a form of force?

          • Betty Rubble

            Russ, the employee is not forced to work for that particular employer. Neither is that employer preventing the employee from getting the service/product someplace else. A store/organization/business should not be forced to sell a service/product it doesn;t want to. Unless the customer is prevented from getting that service/product from another store/organization/business, he isn’t being “stolen from”.

          • Employers are required to do all sorts of things, including, for example, to provide safe working conditions. It’s not enough to say that the employee can choose to work somewhere else. The employer still have the obligation. You may not approve of that requirement, but it is the law.

          • Gary Simmons

            Safe working conditions are intrinsic to offering quality employment that is gainful to the employer, employee, and customer. It serves the common good. Contraception does not benefit all parties, nor does it serve the common good. Class I carcinogens are, last time I checked, BAD for your health.

          • martinbrock

            Suppose the employer gives every employee an extra few dollars in each paycheck when opting out of contraceptive coverage, whatever the employer saves by contracting for a group insurance policy without this coverage? Would that satisfy you?

          • Yes, that would be fine. The amount after taxes should enable the employee to buy the coverage not provided by the employer’s policy.

          • martinbrock

            If half of the employees don’t use contraceptives, because they’re too old or too disabled or too ugly or too impotent or too Catholic to have recreational sex, or because they just don’t like sex, distributing the insurance savings among all employees won’t provide the young, sexy employees enough to pay for their contraceptives, because in the insurance scenario, the sexually poor subsidize the sexually rich. Why do you advocate this subsidy?

          • stevenjohnson2

            ^^Covert appeal to bigotry that makes the “Little Sisters of the Poor” come across as superstitious blue-noses. However much fun it might be stroke conservative prejudices, all insurance of any sort subsidizes claimants at the expense of nonclaimants.

            The question is whether there are grounds for compelling someone to buy insurance. If by some peculiar set of historical circumstances education was paid for as part of an employee’s compensation, you would be asking the same question and it would be just as fatuous. Provision of health care like provision of education is an inextricable part of social justice. Contraception is a part of standard health care. The fact that malignant prudes have interfered makes them oppressive, not principled.

          • martinbrock

            Where is the appeal to bigotry, covert or otherwise? Simply writing “bigotry” only appeals to a choir accustomed to hymns lamenting bigotry. Bigotry toward what? If you think me a prude, you really don’t know me very well.

            Strictly speaking, insurance does not subsidize claimants, because neither claimants nor non-claimants know who the claimants will be when they pay their premiums. When I pay for term life insurance, I pay for the risk of dying without leaving an estate sufficient to support my children as I wish for example. If I don’t die in a given month, I have nonetheless received the value of my premium. That someone else who does die receives the money I paid is irrelevant.

            What we call ” health insurance” these days typically is a hybrid between insurance and mutual aid. I have no problem with mutual aid, and I want to be part of a mutual aid association, for largely superstitious, faith-based reasons. My faith is not Catholicism or any other traditional religion, but it’s a faith nonetheless, and I’m aware of this fact. I want to subsidize people poor than I am, and I don’t need a state dictating the terms. In fact, I often observe states dictating that the poor subsidize the rich, by imposing rents with little other effect for example.

            Now, tell me again why the sexually poor should subsidize the sexually rich, specifically? I’m not interested in broad, vague categories like “standard healthcare” conflating conflating countless costly services consumed by rich and poor, healthy and unhealthy, sexed and unsexed, alike.

          • stevenjohnson2

            “Where is the appeal to bigotry, covert or otherwise?”
            In misframing the issue in terms of a noncept like “sexually rich,” which doesn’t mean a damn thing, and in dragging in irrelevancies about the poverty and chastity of nuns.

            “Bigotry towards what?” Sex, of course. is one, the sexually rich being repulsively randy. And I expect your imaginary leftists would naturally feel a thrill of indignation at the rich, too. You of course could easily make a dishonest appeal to a prejudice you don’t personally share. I’ve found that libertarians quite commonly argue in bad faith.

            Your third paragraph is correct that strictly speaking health insurance is not a subsidy much more clearly than my point about claimants vs. nonclaimants. That supports my argument, not yours. You claim in the fourth paragraph that health insurance is a “hybrid,” but don’t support this.

            “Now, tell me again why the sexually poor should subsidize the sexually rich, specifically?” Again, this is merely witless insinuation pandering to the base. If it meant anything, the sexually pure are somehow donating libido and sexual experiences to the sexually depraved. That would indeed be reprehensible. In practice, momey may flow from a secretary to an unemployed drug addict. Or money may flow from the secretary to a private school senior. That’s the way insurance works, as you pointed out when you were being honest. It’s not a subsidy at all, strictly speaking.

            But, as I’m sure you realize, I answered the fundamental question when I compared provision of health care to provision of education. We all benefit when there is less transmission of STDs and fewer unwanted children, even if the moral benefits are lost on libertarians who measure everything solely by money. The implicit argument that “standard” health care doesn’t include contraception needs support you’ve failed to provide, probably because it’s so foolish. “Why recreational sex and not nutrition?
            Is nutrition not part of standard healthcare?” It really is true that malice makes you stupid! Of course nutrition is part of standard health care, starting with something as simple as prenatal vitamins and iron supplements. You’ve conceded my point.

          • martinbrock

            In misframing the issue in terms of a noncept like “sexually rich,” which doesn’t mean a damn thing, and in dragging in irrelevancies about the poverty and chastity of nuns.

            Labeling something a “noncept” is facile. Your “noncept” is the meaningless term here.

            Sex is a good that many people value, a lot, and some people have more if it than others for a variety of reasons as a matter of fact. You simply ignore this fact, because you don’t want to defend the conclusions following from your assumptions. If you don’t like “sexually rich” as a label for people using contraception to enjoy a lot of recreational sex, we’ll call them anything you like.

            Nuns take a vow of poverty and chastity as a matter of fact. The specific case in question requires nuns and others sharing their values to subsidize the recreational sex of other people as a matter of fact. Ignoring these facts by dumping them into your “noncept” category doesn’t change them. The facts are still there, and the subsidy is still there, and you don’t defend it as much as you evade a defense of it.

            Sex, of course. is one, the sexually rich being repulsively randy.

            I’m the furthest thing imaginable from a sex bigot, and I never say anything about the sexually rich being repulsive. That’s you.

            And I expect your imaginary leftists would naturally feel a thrill of indignation at the rich, too.

            My imaginary leftists object to the poor subsidizing the rich while real “leftists” are not so bothered by it. What else is new?

            You of course could easily make a dishonest appeal to a prejudice you don’t personally share.

            I make no appeal to any prejudice I don’t share. I am pro-recreational sex, but I don’t therefore favor the unsexed subsidizing the sexed. I also like Madonna. I even like listening to Madonna during recreational sex, but I don’t favor subsidies for Madonna fans either.

            I do share a prejudice against the poor subsidizing the rich, but you avoid discussing this prejudice with me.

            I’ve found that libertarians quite commonly argue in bad faith.

            You haven’t found one here. You only imagine one to avoid addressing the points I raise.

            You claim in the fourth paragraph that health insurance is a “hybrid,” but don’t support this.

            Health insurance covering contraception is a hybrid between insurance and mutual aid, because contraception is a completely predictable cost and does not involve any sort of risk pooling. If people want to share this cost, voluntarily, I have no problem with that, but I don’t expect nuns or gay people to join such an association, and I don’t believe they have any moral obligation to join it.

            Sharing the cost of chronic illness is also mutual aid, and I expect many nuns and others sharing their values to join a such a mutual aid association, but contraception does not treat a chronic illness. Contraception as such only enables a recreational activity.

            Again, this is merely witless insinuation pandering to the base.

            Again, this is merely an evasion.

            If it meant anything, the sexually pure are somehow donating libido and sexual experiences to the sexually depraved.

            I say nothing about the sexually pure or the sexually depraved. That’s you again. I personally enjoy lots of sex and a great variety of it, and I do not consider myself depraved in any sense. Do you think me depraved? Why are you introducing “depravity” into this discussion?

            That’s the way insurance works, as you pointed out when you were being honest. It’s not a subsidy at all, strictly speaking.

            When I was being honest, “insurance” described a risk pool. If I had conflated costs that are not a consequence of unpredictable events with costs that are, I would not have been so honest.

            … I compared provision of health care to provision of education.

            Education is not an insurable risk either, so any comparison with insurance is nonsense.

            We all benefit when there is less transmission of STDs and fewer unwanted children, even if the moral benefits are lost on libertarians who measure everything solely by money.

            We don’t all benefit from recreational sex. Only the recreationally sexed benefit from it, even if non-libertarians have no problem imposing the costs of their recreational sex on people not enjoying it.

            The implicit argument that “standard” health care doesn’t include contraception needs support you’ve failed to provide, probably because it’s so foolish. “Why recreational sex and not nutrition?

            “Standard health care” is a sequence of three words that means anything you like, and this further retreat into semantics is just another evasion.

            It really is true that malice makes you stupid!

            And that is an ad hominem.

            Of course nutrition is part of standard health care, starting with something as simple as prenatal vitamins and iron supplements. You’ve conceded my point.

            Conflating prenatal vitamins with recreational sex is another evasion. I suppose the nuns don’t object to joining an mutual aid association providing prenatal vitamins.

          • stevenjohnson2

            Well, “malice makes you stupid” admittedly is not an argument. But it was an emotional reaction to the stupidity you’ve posted, not a counter-argument. Consider it withdrawn. However, “nonconcept” is polite for “ignorant bullshit.” Nobody knows how to identify the “sexually rich” which means it is ignorant bullshit to prattle about subsidizing them.

            Contraception is not just for recreational sex. It is hard to believe that you don’t know this, which demands we must believe you’re just lying.

            Libertarians!

          • martinbrock

            I’ll now ignore the increasingly insulting tone of your argument and focus on the substance. This tone undermines your argument, outside of your choir, rather than strengthening it. In a formal, competitive debate, you’d actually lose points this way, and outside of a formal debate, this tactic increases the perception that you defensively avoid substantive issues.

            Contraception is definitively for recreational sex. Even a person for whom conception poses an unusually high risk uses contraception in order to enjoy sex without this risk. Another person subject to the same high risk but not having recreational sex does not require contraception.

            A person may take hormones with a contraceptive effect for another purpose, but if this person does not also have recreational sex, then the person is not using a contraceptive.

            Similarly, if I’ve had a vasectomy, I might use a condom only to lower the risk of sexually transmitted infection, but in this scenario, the condom is not a contraceptive, because it does not avoid conception. And in this scenario, the condom still serves to enable recreational sex at lower risk. A person not enjoying recreational sex does not use a condom for this purpose.

          • Gary Simmons

            No *True* Scotsman — nobody who matters — objects to contraception, therefore contraception is *standard* healthcare; everyone who objects to it is not a true Scotsman. That’s basically your argument here. It is at once a No True Scotsman and an Ad Hominem.

          • stevenjohnson2

            You must be a real libertarian, because this is ludicrous.

            First, feeling insulted by genuine reasoning doesn’t make it an ad hominem argument. The ad hominem fallacy is responding to an argument by an attack on the person. instead of proffering a counter-argument. There were two counter-argument. (That insurance “subsidizes” claimants as against nonclaimants, which to clarify means it is not a subsidy at all. And, that health care is a part of social justice, meaning citizens can be justly required to take their part in providing it.) It is amusing that false accusations of ad hominem fallacy, substituted for responses to the real arguments, are a wonderful example of a true ad hominem fallacy.

            Second, everything you say about True Scotsman is gibberish. Condoms are one form of contraception available without a prescription. Every store you find them displayed with other health products. The burden’s on you to provide an argument that contraception is not part of health care. If there’s a No True Scotsman being made, it is that contraception/health care (aka Scotsman) is not really a part of health care, that is, not a True Scotsman. Insofar as people have made this claim, explicitly or implicitly, it really is a fallacy. Fallacious reasoning from libertarians is not unexpected.

          • martinbrock

            I may agree to call contraception “part of healthcare” without agreeing that the unsexed should subsidize the sexed or the gay should subsidize the straight.

            Similarly, I may call nutrition “part of healthcare” without agreeing that people electing minimal nutrition should share the costs of all nutrition, including the nutrition of the extremely well fed.

            The burden’s on you to defend these subsidies, and you aren’t defending them.

          • stevenjohnson2

            And I haven’t logically justified induction or explained the origin of qualia either. Lurking behind this last redoubt is the counterfactual denial that the market creates social injustices that need correction by conscious social action. Contraception should be made as accessible as possible because it is to everyone’s benefit that STDs don’t spread and that children are wanted. All the BS you’ve thrown up notwithstanding, in sum the rather small costs of this social benefit will more likely ultimately flow from the better off to the poorer. It’s true the genuinely wealthy aren’t likely to pay for much, but that’s partly because libertarians help pervert politics and government with their putrid nonsense.

            I think the opposition to this benefit is because 1.) the feeling that women should suffer the consequences for engaging in recreational sex (also known as affection and intimacy amongst the decent portion of the population,) and 2.) the feeling that people with money have the right to keep it until they decide what they want to do with it. Insofar as religious freedom enters the issue, the only question is whether the religious are privileged to determine government policy. That is the opposite of religious freedom. As so often, libertarians are the enemies of freedom.

          • martinbrock

            Lurking behind this last redoubt is the counterfactual denial that the market creates social injustices that need correction by conscious social action.

            I never anywhere deny that the market creates social injustices. I rather assert that compelling the unsexed to subsidize the sexed is itself a social injustice.

            Contraception should be made as accessible as possible because it is to everyone’s benefit that STDs don’t spread and that children are wanted.

            Compelling the unsexed to subsidize the sexed does not make contraception more accessible. It only makes contraception less costly for the sexed regardless of financial status.

            If you want to force people into a mutual aid association providing recreational sex to the financially poor, you only need permit the unsexed to opt out. Then the wealthy sexed subsidized the poor sexed, but the unsexed do not subsidize the sexed.

            All the BS you’ve thrown up notwithstanding, in sum the rather small costs of this social benefit will more likely ultimately flow from the better off to the poorer.

            We aren’t discussing the rich subsidizing the poor here. We’re discussing the unsexed subsidizing the sexed. If you want to discuss the rich subsidizing the poor or vice versa, we can, but that’s precisely the point you’re evading.

            It’s true the genuinely wealthy aren’t likely to pay for much, but that’s partly because libertarians help pervert politics and government with their putrid nonsense.

            Actually, you’re defending politics compelling the unsexed to subsidize the sexed regardless of financial need. An opt out of contraceptive coverage for the unsexed addresses this problem without ending subsidies of the poor by the rich. We could discuss a tax on sales of contraceptives to provide the subsidy, but you instead throw around inflammatory terms like “putrid nonsense” appealing only to members of your choir.

            I think the opposition to this benefit is because …

            You think incorrectly. My opposition is exclusively to compelling the unsexed, the sterile and the gay to subsidize the recreational sex of the straight and fertile regardless of financial need.

          • stevenjohnson2

            The “sexed” and the “unsexed” are not real categories. And, despite the its popularity amongst muddy thinkers, is “recreational” sex. You have no valid arguments.

          • martinbrock

            “Sexed”, by definition here, describes a category of people who regularly have recreational sex and use contraceptives to avoid conception.

            “Recreational sex” describes sex solely for the physical/emotional pleasures involved.

            “Unsexed” describes the complement of “sexed”, i.e. it describes the category of people how do not regularly have recreational sex and use contraceptives.

            Words generally can be slippery things, but these categories are certainly real, i.e. some people do have recreational sex and use contraceptives to avoid conception regularly, and other people do not. If you prefer other words for these categories of people, I’m happy to consider alternatives.

            But you seem more interested in avoiding the discussion altogether with incredibly vague, arbitrarily dismissive terms like “muddy” and “invalid”.

          • Gary Simmons

            Hi, Steven!

            My point was/is that calling contraceptive medication — although contraception is broad enough to include devices such as condoms, I was being more specific — “standard” care presupposes a “standard” which does not apply to ANY male, nor to homosexual women, nor to celibate women. Not just are you generalizing a small subclass to which contraceptive medication *may* be of interest/use, but your use of the word “standard” excludes the voice of women who object to contraceptives. http://womenspeakforthemselves.com/

            What is more, your use of the term “covert bigotry” impugns the motives of your opponents in a dismissive manner. Why not rather dialogue in good faith? it does no good to put people down; that’ll never persuade others that your view is correct and they are in error.

            Peace and grace!

          • JKellogg

            Really?

            This is the most outrageous conflation of logic I’ve heard in years! Really???

            Why don’t we just outlaw the 1st amendment while we’re at it? After all if I say something you disagree with, I’m stealing your right to think for yourself, right?

          • Montjoie

            The employer isn’t stealing anything. Do actual words mean anything to you? The employer isn’t GIVING them something.

          • Montjoie

            If the resources are “guaranteed to them by the government” then let the government supply them.

          • genemarsh
    • ben

      If something was “guaranteed to [employees] by the government”, then that’s a matter between those employees and the government.

      I don’t see how it creates an intrinsic moral duty for a third party (employers), much less one that is of such great precedence that it overrides the employer’s own constitutional rights and that not fulfilling it would be morally equal to “theft”.

      Maybe you could elaborate on where, exactly, the employee’s universal “right” to get their contraception insurance paid for by an employer is supposed to come from…

      • The employee’s right comes where all other rights come from: the laws on the books. The law says that the employer is required to provide insurance that includes contraceptive services. If the employer fails to do that, he is stealing something from the employee.

        Employers are required to provide many things for their employees, including health insurance, safe working conditions, etc. Failure to provide those things deprives the employee of something to which he is entitled. Why do you find that a difficult conclusion?

        I agree with you that if the law requiring the provision of some of these things is found unconstitutional, then it no longer has the force I’ve implied for it. So far that hasn’t happened. I guess we’ll see.

        • ben

          where all other rights come from: the laws on the books.

          I don’t agree that that’s where rights come from.

          The law says that the [A] is required to provide [X]. If [A] fails to do that, he is stealing something from [B].

          You argue as if this were some kind of obvious tautology. Let’s try it with these values:

          year = 1800
          law = slavery is backed and enforced by government
          A = slave
          X = slave labor
          B = slaveholder

          Would you insist that slaveholders were “entitled” to the slave labor? Would you accuse runaway slaves of “stealing”? I hope not.

          To support such claims, you would have to argue that the government was justified in promising X to B at the cost of A, in the first place.

          In the extreme example of slavery, I assume we both agree it wasn’t.

          In the much less extreme (but currently in-the-news) example of mandatory provision of contraception insurance, you seem to think it *was*. But you haven’t provided any actual argument for that (yet?).

          If the government was not in fact justified in promising contraception insurance to B at the expense of A (say because it conflicts with A’s constitutional freedom of religion, and/or guaranteed access to contraception is not actually a basic right that mandates government intervention, and/or access to contraception is already -or could be made- available to B through other means) — then A would be justified to object to it, and Justice Sonia Sotomayor would be right to temporarily block it, and Kevin Vallier would be right to harshly citicize the NYT piece, and the Supreme Court should overturn the law.

          Simply pointing to the existence of the law does nothing to answer that question; Pretending it does is effectively a circular argument.

          • You are arguing the merits of the law, e.g. slavery. I’m arguing that given the law not providing what it requires is short-changing the employee. If that’s tautological so be it.

          • Theresa Klein

            The employer has, BY LAW, a constitutional right of religious freedom, which trumps any legislative act. The ACA wasn’t passed by constitutional amendment.

          • The employer is exercising a statutory right under RFRA, not the constitutional right to religious liberty. Under the constitutional right citizens have to abide by facially neutral laws of general applicability.

          • I’ve often wondered what the libertarian position is regarding slavery. Are you saying that contracts in which one person sells himself into slavery should not be ruled invalid by the state?

          • martinbrock

            Most libertarians consider personal liberty an inalienable right, so I may contractually subject myself to you, but the contract cannot exist in perpetuity. “I will be your slave for the rest of my life” is not a valid contract, regardless of any consideration. Rothbard says that a person accepting this contract should return all or part of the consideration (the contractual price of his enslavement) when reclaiming his freedom, but I don’t even go that far.

          • Since without food or water a person has no real liberty, what is the libertarian position on a person who is starving or dying of dehydration? Is theft of food or water under those circumstances a valid libertarian option?

          • martinbrock

            Some libertarians debate the One, True, Libertarian Position. I don’t.

            For my part, a person starving or dying of dehydration either has no community or suffers from a defect in his community. In my ideal, this person should find a community if he doesn’t have one. If he suffers from a defect in his community, his community should keep him alive humanely until he finds another one. I am not an anarchist in the strictest sense, because I would constrain the terms of free association this way.

          • If one is starving or dying of dehydration, one may not have time to join a community. Then what?

          • martinbrock

            A starving man outside of a community dies of starvation, so most people to want to live in communities.

            I don’t expect manna from heaven in this scenario. I don’t imagine an omnipresent, omnibenevolent state conjuring up a community for the man either. The statist illusion of divine intervention seems no more helpful to me.

            On the other hand, I do imagine a state compelling communities subject to it to keep their members humanely alive, if possible, at least long enough for members wishing to exit to do so. In this sense, I expect the state to enforce an obligation to feed the hungry.

          • You wrote,

            “I do imagine a state compelling subject communities to keep their members humanely alive, …

            “I expect a state to enforce a right to life, liberty and little else, but this right implies an obligation to feed the starving.”

            That seems fairly coercive How do you see the state enforcing requirement that on communities?

          • martinbrock

            A minimal state enforces a right of habeas corpus. Every individual subject to the state, including a starving community member, may appeal to the state if his life is threatened. If the state finds that a community violates this right of its members, the state could dissolve it by distributing its resources to other communities respecting the right, for example.

            If that’s too coercive for you, or if it doesn’t seem realistic, I can only ask what else you propose.

          • When I said that it seemed coercive, I was thinking that it would be too coercive for libertarians, not for me. Is this a mainstream libertarian position? If so, this implies a much more active government that I had expected from libertarians. I’m not objecting; I’m just surprised to hear it.

          • martinbrock

            I wouldn’t call it a mainstream libertarian position, but libertarians aren’t half as monolithic as anti-libertarians imagine.

            The minimal state that I imagine is much less active than the night watchman state that other minarchist libertarians advocate, because my ideal state does not enforce any particular property rights. It only enforces a right to life and a right to exit a community at will. Individual property rights are contractual terms of a community’s charter. People have no meaningful property rights outside of a community, because respect for particular property rights must be voluntary in my way of thinking.

        • Theresa Klein

          “The employee’s right comes where all other rights come from: the laws on the books. ”

          The law is unconstitutional.

    • Phil Gwinn

      “…can force employees to spend money that the employee would not otherwise be required to spend…”

      Contraception is never a requirement. It is a “nice to have” item. If the good sisters objected to a “must have” item like oxygen then your statement would ring true.

  • stevenjohnson2

    “If John refuses to buy Bob a condom, on no plausible understanding of religious liberty is John imposing his religious views on Bob.” This misrepresents the case. John uses his medical insurance to buy his condoms. If Bob unilaterally restricts John’s health insurance for religious reasons, he is also restricting John’s religious freedom by imposing Bob’s religious veto on what John buys. Not only is it a restriction of John’s religious freedom, it is a restriction of John’s economic freedom, imposing a higher price, a kind of hidden tax.

    As for the NYT editorial being “unacceptable,” I would counter that the arbitrary limitation of threats to religious freedom from the federal government, as opposed to state and local governments, is the only unacceptably dishonest argument. Generally, the threats posed by the federal government to religious freedom come in the form of support for lower level infringements, as by the employers in this case. State establishments of religion are the great historic failures of religious liberty in this country.

    The only question here is whether Sotomayor was justified in issuing a stay at all.

    • Sean II

      Hey Kevin – take the above comment as proof of my point. Johnson here draws no distinction between a private organization declining to pay for something, and a state or local government prohibiting that thing as pat of some unconstitutional religious establishment.

      To him, these are all just “lower level infringements” of Bob’s religious freedom.

      • Kevin Vallier

        I’m glad we agree on something, finally! 😉

        • Sean II

          I’ll remain silent for awhile, so as not to spoil the moment.

    • Kevin Vallier

      “If Bob unilaterally restricts John’s health insurance for religious reasons, he is also restricting John’s religious freedom by imposing Bob’s religious veto on what John buys.”

      No. Bob is not imposing a religious veto on what John buys in any way. There is no veto. He’s just not paying for it. John is still free to buy it. Why is this hard?

      • Theresa Klein

        Give it up. Progressives are too committed to the success of Obama and ObamCare to be reasoned with. Not paying for insurance coverage for contraceptive HAS TO BE a violation of religious liberty, because if it wasn’t there would be no legal justification for the law, which would be a failure for ObamaCare. Defending ObamaCare is paramount, therefore not paying for contraception is a restriction on liberty. Shut up. End of story.
        You aren’t going to get through to these people.

        • Kurt H

          Whatever. I could care less about the ACA’s milquetoast reform of a broken system. I do care about employees being able to use their compensation as THEY see fit. You know, property rights . . . liberty . . . the things libertarians are supposed to care about? Or are those things only for the bosses?

          • Theresa Klein

            “I do care about employees being able to use their compensation as THEY see fit.”

            You mean like spending it on something other than health insurance?

          • stevenjohnson2

            Being compelled to buy health insurance is like being compelled to buy liability insurance for your car or pay for garbage pickup. There’s more to being a citizen than just refraining from killing people.

          • Theresa Klein

            No it isn’t. Liability insurance is for risks that you impose on other people.
            Health insurance is for external risks to yourself.
            Community rated insurance is for risks to other people that have nothing to do with you. It’s just pure compulsory subsidization of other people’s healthcare.

          • stevenjohnson2

            Contraception is about risks to other people, indeed, the whole community at large. One form of contraception prevents the spread of STDs, including lethal diseases such as AIDS and syphilis. All forms help other people, most of all by giving children a home where they’re wanted. As always, you’re wrong. The libertarians just want to misframe contraception as a luxury, instead of one part of health care, as a rhetorical deceit.

            Also, any person in an insurance program may be one who receives benefits in excess of contributions. But that’s not a subsidy, just more libertarian rhetorical deceit.

          • Theresa Klein

            I see. So it’s OKAY to restrict employee’s liberty in SOME ways. Just thoses way that YOU think are good and right, according to YOUR morals. It’s GOOD to provide contraception, because it’s good for society. It’s GOOD to force people to purchase health insurance. So it’s OKAY for force employees to “spend” their “compensation” on things that YOU believe are morally right.

            It’s just that the Catholics anti-contraceptive teachings are BAD and WRONG. So THAT’s what’s makes it wrong for them to not pay for other people’s contraception.

            I understand it all now. It’s perfectly all right to restrict liberty, as long as you do it according to GOOD, CORRECT moral beliefs. Not backwards conservative religious teachings. Which are just bad.

          • stevenjohnson2

            As always, you see nothing but your preconceptions. Good medical practice includes provision of contraception. For some reason, health insurance comes through an employer. It is manifestly crazy to insist that an employer’s religious ideas have anything to do with good medical practice. And pretending they have rights to impose their religious preferences on an employee’s health plan is itself an attack on religious freedom. It’s not their health plan, it’s the employee’s. Not one person is compelled to use contraception, ergo there is no violation of religious freedom. Every claim to the contrary is bullshit.

          • Shouting words in all caps does not magically endow them with gravitas and credibility. It merely makes you look like you are, well. being kind of boorish.

      • Kurt H

        Why do you refuse to understand this point? You’re not stupid. It is plainly obvious that this is a case where the employer’s actions are imposing additional costs on the employee which would not occur if all insurance was paid for out of employee wages. If an employer cannot tell employees how to spend their paycheck, they cannot tell them what kind of health care to buy either.

        • Kevin Vallier

          It is plainly obvious that by not paying for contraception, an employee must pay more for contraception than otherwise, just as it is obvious that if I don’t buy you donuts that you must pay more for them. It is not obvious at all (because it is false) that Little Sisters of the Poor are “imposing” costs on their employees by not buying them birth control! They’re not telling their employees how to spend their paychecks! They’re just not buying contraception! You’re the one, I’m afraid, who is missing something extremely fundamental.

          • Kurt H

            If the employer did not provide health insurance all of their employees would have the same capacity to purchase health care of whatever type they desire. The same should be true when an employer does provide insurance, otherwise this is a “benefit” with strings attached. The insurance is not the employer’s money it is the employees’ compensation. You are arguing for giving employers the legal right to discriminate on the basis of religion.

          • DavidCheatham

            You are arguing for giving employers the legal right to discriminate on the basis of religion.

            I know you probably meant something else, but when I first read that, it introduced an interesting point in my mind.

            Right now, the only cases seem to want to do a *blanket* non-providing of contraceptive.

            But what if someone’s religious belief said ‘I believe only white people should get health care?’

            Before anyone asserts that can’t happen due to anti-discrimination laws, I feel I must point out that *churches can currently refuse to hire people based on race*.(1)
            Opening the door to let non-profits or even for-profit corporations opt out of following employment law for ‘religious’ reasons does not appear to actually have any sort of logical end. In fact, right now, the Hobby Lobby case is making the argument that *facts don’t matter*. (Because what they’re actually claiming is that they are against abortion, and that they believe certain things cause abortion. The fact that those things do *not* cause abortion appears, in their logic, to be irrelevant.)

            Likewise, black people aren’t *actually* evil…but there are plenty of historic religious arguments you can point to saying they are. And, hence, you think it’s immoral to subsidize their health care.

            Someone please explain to me under what legal theory those two arguments are different.

            1) As I have pointed out repeatedly, letting churches do that was a very bad idea, and set a horrible precedent.

          • Bryan C. Winter

            we really don’t have to worry about the ‘I believe only white people should get health care?’ scenario. While it could even be technically legal in rare circumstances, anyone who hired such a way would be ostracized out of the marketplace immediately.

            However the argument that ‘letting’ charities and churches get away with spending their own money how they choose setting a horrible precedent, is exactly the kind of thing Libertarians stand against.

            An individual can choose to buy american, or buy black, or by white, or buy whatever. How someone spends money is a very personal choice. While businesses certainly shouldn’t be discriminatory, it isn’t legal force that prevents business from doing this, it is mostly political and social force. I think about MILK, when the gay community starts throwing their economic muscle around San Francisco. Trade has an incredibility ability to remove social barriers, though the movement is slow and steady, as opposed to dramatic like the passage of a law.

            So Once again I don’t see the force argument on the part of the employee. An employer and an Employee exist on equal moral footing, and can choose any number of thousands of different ways and ratio’s of compensation. The employers job will be to meet the market rate. Now people probably won’t quit their job over contraception coverage, but it will influence future decisions over the long term. It’s effect will be mostly immeasurable, another indication of how little it matters in economic sense, but how enormously important it is to a small number of people who are choosing, of their own free will, to employ other people, also of their own free will.

            This of course is ignoring the impractical side of universal birth control, a substance that is cheap and available on the market for anyone to buy. Making it mandatory will inflate prices. My wife pays 66 for 3 months of pills, that actually cost about 250 before insurance kicked in. If you look on the internet for aftermarket birthcontrol, you can get it for 25 dollars a month. The insured brands are almost tripled because your spending collective money for a personal good. If ever there was an example of why economic choice shouldn’t be a collective choice, birth control is it. We have a perfectly functioning market next to a dysfunctional one, and we are moving everyone into the dysfunctional system against their will.

          • DavidCheatham

            If you want to make the argument that all labor laws are a violation of liberty, feel free.

            Likewise, if you want to agree that the religious exception *would* allow businesses to start discriminate on the basis of race, free feel. (Although what I was arguing was actually that a religious exception for health care would allow discrimination in, and only in, health care. I.e., they’d still have to *hire* black people…just not give them heath insurance.)

            However, I feel I must point out that, as a non-libertarian who posts here, I rather suspect that such arguments will not have quite the response you’re looking for from the general population. Nor will they actually convince *me* of anything.

            This of course is ignoring the impractical side of universal birth control, a substance that is cheap and available on the market for anyone to buy.

            Actually, what’s going to start happening is insurance companies have to start covering the *much more* reliable implants and other stuff. Birth control pills are nowhere near the most reliable method of birth control. (Mainly because of user ‘error’, i.e., not using it at *exactly* the same time every day.)

            However, I also free I should point out that you’re somewhat confused as to how insurance works. I suspect that no one is paying $75 dollars a month for those *normal* birth control pills. Not even insurance companies. Those high prices are just so they can charge them against your deductible or make you pay a co-pay.

            Incidentally, under the ACA, they just had to stop doing that. They’ll be covering the entire price…which will cost them about them about $2 a month.

          • Bryan C. Winter

            Employers are not imposing upon employees by refusing to purchase a benefit for them. Employers can provide any/all or no compensation, at their option. It is the employee who chooses to accept the conditions of the contract when signed.

            This can include health insurance of a certain level, more or less drug coverage, more or less maternity leave, more or less money, or any combination of the above objects. At no point is a company required to morally provide any kind of specific compensation at all. It is both the employers money AND the employees compensation at the same time. That is how money works … it is a process of exchange for goods and services.

            I see no evil being done by people being able to choose how and why they decide to spend their money. It isn’t like these churches are getting away with murder now and going to be paying much less than everyone else. That may end up being reflected in more money for the employee, but of course that value will be abstracted out because money is an abstract concept.

          • Kurt H

            That would be a fine argument for a perfect competition world where there are an infinite number of firms for every skill set and the costs of searching for and switching jobs are zero. In the real world, granting employers sole power to determine the terms of employment (take it or leave it) is highly unjust.

            Would you find it acceptable for a company to pay $14/hr for Christians and $15/hr for Muslims? By the principle you have laid out above, you should have no objection to this at all. The employer gets to set any pay scheme they want, take it or leave it.

            Also, what contract? Most workers, particularly hourly workers, do not have a contract. They can do this because we have defined, both by statute and court precedent, minimum standards regarding employment relationships. Over time, as technology advances, we should expect those minimum standards to rise as well.

    • ben

      If Bob unilaterally restricts John’s health insurance for religious reasons

      But Bob doesn’t do that.

      Bob merely decides what kind of health/contraception insurance he is willing to offer to John as part of a voluntary, mutually beneficial contract.

      John is free to agree to the contract, or offer his services to a competitor instead etc.
      And independently of that, he is free to buy himself any additional health care or contraception he wants (in the form of insurance, or out-of-pocket) with his own money.

      Bob doesn’t restrict that at all.

      • stevenjohnson2

        Bob is not the insurance company. Bob is merely John’s employer. Part of Bob’s compensation to John is health insurance. The actual services provided to John are a matter for John and the insurance provider. Bob the antiracist can’t forbid John’s insurance to refuse to pay for an emergency appendectomy while on vacation in Israel either, notwithstanding Bob’s heartfelt antiZionist convictions!

        Bob has no right to interfere because his religious beliefs are simply not relevant. Bob is not the customer of the insurance company and is not forced to buy contraception, so his religious liberty is not infringed.

        (And frankly I’m pretty sure that religious bigotry is an unspoken motivator in a lot of this. Who would be so far gone as to argue that Bob the Jehovah’s Witness should be allowed to demand John’s health insurance not pay for blood transfusions? A lot of this really is about penalizing sluts. Bob has no right to make medical decisions because he has more money than John. The fundamental libertarian idea that people with money should be free to do whatever they want arises yet again!)

        Forcing John to buy private health insurance penalizes him by depriving him of a group rate. Paying full price out of pocket for arbitrarily deprived medical services also penalizes John.

        The issues of allowing non-profits, religious or not, special legal status and privileges, or mandating that employers provide health insurance as part of compensation to employers are not the issue discussed here. The issue here is allowing special powers for religious discrimination to private parties.

        Glancing over the whole thread, I note that the libertarians have carefully forgotten that good medical service includes contraception, the development of which was a triumph in the advancement of human welfare. The state has a right to set standards as part of its provision of protections against fraud and injustice.

        • Theresa Klein

          “Forcing John to buy private health insurance penalizes him by depriving him of a group rate. ”
          OMG! The horror of not getting a *discount* on your contraception.

        • Farstrider

          “A lot of this really is about penalizing sluts.”

          Agreed. Whenever a person is dictating sexual mores to someone else — or as in this case, endorsing the right of employers to do it by proxy — you can be certain that religious disapproval of sex is the cause. No one would have this argument about inoculations, even though there is some religious opposition to them too.

          • Theresa Klein

            That is pure garbage. My reason for objecting to this is because I fine it morally abhorrent to force people to do things that go against their conscience.

            I am in fact in favor of making contraception available over the counter without a prescription. And one of my best friends is a former prostitute in a polyamorous relationship with two men.

            You people are sick in the head that you have to twist your minds in knots and imagine evil motives into other peoples heads in order to avoid confronting that fact that what you are doing is WRONG. Deeply, profoundly WRONG.

          • Farstrider

            Name calling is not an argument. Please stop it.

            Thanks

          • Theresa Klein

            Did he not just accuse everyone who is against the contraception mandate of “slut shaming” ?

          • Gary Simmons

            He did. You’re right, Theresa. Rock on.

  • Sean II

    “They’re not restricting their employees’ liberty at all. If John refuses to buy Bob a condom, on no plausible understanding of religious liberty is John imposing his religious views on Bob.”

    I don’t know about plausible, but..for “the elite center-left” you speak of, the employer-employee relationship is magic. A big part of the lefty program comes down to creating a legal inequality between the sellers of labor and the buyers. Thus, for example: the sellers of labor are allowed to discriminate any way they like, even using race, gender, religion, etc., while a vast body of law and legislation exists to stop the buyers of labor from doing the exact same thing. The buyers of labor are presumed liable in most tax, regulatory, and tort matters, while the sellers are nearly always presumed harmless, and indeed, are armed with various extraordinary means for bringing suit against or prising compensation from the buyers.

    This goes way beyond the usual OWS punks sniveling about corporate personhood. The real leftist premise – going back at least to 1848 – is that employers are not really people in their capacity as employers, and therefore have no rights worth worrying about.

    Add in the fact that the left is always pushing for greater state control of commerce, and what you get is: employers have no important rights, and besides, they’re quasi-governmental cogs of the establishment, so why NOT simply compel them to do anything we (the center-left elite) think desirable?

    • Sean II

      Of course I should add: In America if not anywhere else, the old left (and the old new left) were not so far gone that they didn’t sometimes respect abstract limits to state power. If you talked to a lefty in 1972, there were probably lots of issues where he had an opinion without quite wanting to mandate this, or ban that, etc..

      The striking thing about the new new left – the segment that avoids the old tag “liberal” and calls itself “progressive” instead – is how clearly their policy preferences reveal a future where everything will tend to be either mandated or banned.

      • Les Kyle Nearhood

        That progression only displays something I have noticed before. The left have no internal governor. They will eventually trend to the absolute and absurd. Although I have many disagreements with the right also, this is something that seems unique to the left, or at least effects a higher percentage of them.

        • genemarsh

          “The left have no internal governor. They will eventually trend to the absolute and absurd.”

          On our world the left has been trending right for forty years.

          Many leftist eathlings would like to visit the world where you and Bullingdon reside.

          That is, if Generalissimo Kucinich would welcome us.

          • jdkolassa

            Yeah, okay.

        • jdkolassa

          I see this all the time. Like on Salon, where they have stories wondering if a liberal comedian is a racist, or the white guy says something so now he has to lambaste himself as a racist white guy with too much privilege. Eventually it gets super-ridiculous and all the various privileges and groups start to fall in and collapse. The progressive movement will eventually cannibalize itself as various subgroups strive to prove they have less “privilege” than the other.

          Meanwhile, the rest of the world will just wonder how the hell this ever got to be so powerful.

          This has some good examples:

          http://www.thedailybeast.com/articles/2013/12/31/the-year-in-awful-worst-columns-of-2013.html

      • genemarsh

        By these more reasonable”Lefties” in 1972, you mean the weathermen and the SLA?
        Again with the reality inversion, Bullingdon!

    • genemarsh

      I’d heard the prophecies about “the last shall be first and the first shall be last” but didn’t know that particular regime had arrived and was already unfolding in the workplace.
      With observable reality having achieved total inversion, with employers vanquished and labor ascendant, guaranteed paid sick days should follow any day now,

    • DavidCheatham

      Employers, *as used in this article*, are not really people. They are *corporations*. People aren’t working for *people*, they’re working for corporations.

      I find it completely hilarious that you think it’s odd that the left thinks corporations aren’t really people. Yeah, thanks for pointing that out.

      (There are, indeed, employers that are real people. None of them are even slightly relevant to this discussion.)

      The buyers of labor are presumed liable in most tax, regulatory, and tort matters
      So, you’re standing there saying that ’employers are really people’, and yet you assert they have ‘legal liability’.
      You do realize the only ‘people’ here with any sort of legal liability are the *corporations*, right? That the owners rather explicitly don’t have legal liability?

      • Theresa Klein

        Hobby Lobby is a closely held corporation. It’s almost entirely owned by a small group of people, a single family.

        • Kurt H

          No, but as has been pointed out a billion times already the “religious freedom” of Hobby Lobby’s owners is irrelevant to the case. The question is, can Hobby Lobby dock the pay of workers whose personal lives they find objectionable? I think anyone who cares about religious liberty would say HELL NO. But a person who cares about punishing “sluts” on the other hand . . .

          • Theresa Klein

            They aren’t docking the pay of specific employees. They are declining uniformly to pay for contraception as a general rule for all employees.

          • Kurt H

            Which discriminates against people who don’t share their religious beliefs just as much as if they tried to control how their employees spent their paycheck. Health coverage is part of employee compensation — it is THEIR money, not the employers.

          • Theresa Klein

            I see, so not paying for organic tomatoes as part of your employment contract discriminates against people who believe in sustainable farming.
            How about we let the employee decide whether to receive compensation in the form of health insurance in the first place? Perhaps a post-menopausal woman would prefer not to spend her compensation on maternity coverage and birth control.

          • Kurt H

            If an employer was going to offer “food insurance” and this was the cheapest way to get food in our society, than YES it would be discrimination to restrict what kinds of food people could buy with their food insurance. It would also be highly unjust for an employer to demand the power to restrict those choices. So, thanks for the great analogy which proves my point.

          • Theresa Klein

            YES it would be discrimination to restrict what kinds of food people could buy with their food insurance

            I see. So the food insurance must be able to be used for ANY kind of food to be non-discriminatory, right? Including junk food? Including luxury items such as truffle oil?

            How about the employer simply give his employees little coupons that can be exchanged for any kind of food whatsoever. Perhaps with pictures of famous people on them.

        • DavidCheatham

          This makes the whole thing even *less* of an issue. People *could* have some sort of reasonable suit if Hobby Lobby *employed* them to do something they found objectionable, but that’s not what’s happening here.

          If the owners find the behavior required of their corporation (cutting checks to insurance companies) they can just hire a CFO or whatever. (In fact, they probably already have one.)

          Tada, the owners are no longer required to do anything objectionable.

          The problem here is appears that you apparently believe that corporations have free will, which is the same as their owner’s free will.

          No. Corporations are a construct, and have no free will of their own. They ‘behave’ only in the sense that the laws governing them allow their owners to direct employees to do things, and thus have the company ‘do things’.

          It’s fricking fantasy baseball. It’s a character in a novel doing something. It’s the law *pretending* something happened WRT a fictional entity.

          The idea that there are certain things the government can’t ‘require’ corporations to do is utter nonsense. Corporations *literally* only do things via the imagination of the government. It’s like asserting there are things that J. K. Rowling can’t do to Harry Potter.

          But if the owners find getting someone to do that to be so objectionable, I have a compromise: We can have the government designate a government employee as a representive of that company, and have *them* sign a contract with the insurance company and write the checks to the insurance company out of the company’s bank account.

          Think of it as an author insert.

          • Theresa Klein

            “Corporations *literally* only do things via the imagination of the government. ”

            And the imaginations of the people that formed the corporation have nothing to do with it.

          • DavidCheatham

            And the imaginations of the people that formed the corporation have nothing to do with it.

            Okay, firstly, I suspect you mean ‘people that *own* the corporation’. It’s rather obvious to everyone if someone formed a corporation and then lost ownership, they, duh, wouldn’t have anything to do with the corporation.

            Second, your sarcastic statement is, in fact, right.

            Corporations aren’t actually in the control of the ‘owners’, they’re nominally in control of the board of directors. (Of course, if a corporation is privately owned by few enough people, those two groups will be probably the same people.)

            And, there are all sorts of circumstances where the board of a corporation might attempt to do something via the corporation, and the government says ‘Whoa, not so fast. We don’t care what you said, that doesn’t happen.’.

            For an example of the government negating a corporate action, if the board of directors meet without proper notification and one board member does not get notification and does not attend, he can in fact sue the corporation and have the government void a corporate action that happened at the meeting.

            Not ‘make them do something else’, but actually declare what they said the corporation was doing as *not true*. They did not actually have the authorization to make the corporation do that. (Because, as I keep pointing out, the owners are *not* the same as the corporation.)

            Likewise, if the board has delegated some power to an executive of some sort, and that executive does something, the corporation *has* done that thing, regardless of how the board, or the owners, feel about that.

            And there’s things like board of directors vs. stockholder fights, or stockholder lawsuits, which require the government to step in and make a legal decision about *which corporate action actually happened*.
            None of those are deciding what should have happened, not punishment, but literally deciding in court the actions that a ‘person’ (the corporate entity) took.

            And, of course, via the legal system the courts can actually *inject controllers of various types* into a corporation, where specific corporate actions literally do not happen without authorization. (As opposed to human beings, where the courts cannot insert people in their head, so at best they can arrest them *after* they defy a court judgment.) Or the government just flatly operating the entire corporation during bankruptcy or certain types of dissolution.

            It’s really amazing here how many people seem to think corporations are just some guy who declares he’s a corporation, and doing things as the corporation is just a matter of changing hats to one that says ‘corporation’ instead of his name. Yes, if he’s the *sole* stockholder, and thus the *sole* person on the board, and the board (consisting of only him) has declared him to be the sole executive, it can *look* like that, but that doesn’t make it true in the eyes of the law.

          • Theresa Klein

            So adjudicating a dispute between two parties means that those two parties only do things by the imagination of the adjudicator.
            I guess that all divorced parents are fictitious creations of the government, who only act because the government imagines that they do.

          • DavidCheatham

            So adjudicating a dispute between two parties *about what a third party did* means that *the third party* does things by the imagination of the adjudicator, yes.

          • Theresa Klein

            So adjudicating a dispute between two parents, means that the ‘family” is a third party that the two parents have no role in, that only exists and acts because the government imagines that the family exists and acts.

          • DavidCheatham

            That is complete nonsense. A court has never made a decision about what ‘a family’ has done.

          • DavidCheatham

            To make things easier for you to follow, here’s a rather fun example of the laws making certain corporate actions not possible:

            http://law.justia.com/codes/georgia/2010/title-14/chapter-2/article-12/14-2-1202/
            Not making that *illegal*, mind you. If a board of directors tries to sell off all corporate assets without following this procedure, *it didn’t happen*.

      • Kevin Vallier

        We are not talking about Hobby Lobby in this post. At least, I’m not. I’m explicitly focused on religious non-profits like Little Sisters of the Poor. These nuns are people. Do you want to run the same objection against them?

        • DavidCheatham

          If they’re getting *paid*, than they’re *employees*. I don’t care what they do in their spare time. When they are *employed* all employment law will be followed.

    • Theresa Klein

      The real leftist premise – going back at least to 1848 – is that employers are not really people in their capacity as employers, and therefore have no rights worth worrying about.

      So true. There is no recognition that owning a business is a legitimate means of self-actualizing. There is this hardened attitude that the only possible relationship between an employer and employee is one of oppression and exploitation. It’s never regarded as a legitimate exchange amoung equals.

      This goes back to Marx. If all profit is theft (surplus labor value), then all employer-employee relationships are exploitative, by definition. Even if the business was your idea, the product is your design, and you taught the employee everything they know about it, if you extract one penny of “profit” from the employment contract you are by definition an oppresser.

      • Farstrider

        “There is this hardened attitude that the only possible relationship between an employer and employee is one of oppression and exploitation. It’s never regarded as a legitimate exchange amoung equals.”

        This is hyperbolic and silly. Very few people (if any) think the relationship is ALWAYS oppressive. And people who do think that would be wrong. But you are just as wrong to suggest that the relationship is NEVER oppressive. It sometimes is and sometimes isn’t. When it is oppressive, it is appropriate for the law to step in and protect the weaker party.

        • Sol Logic

          Or the employee could just quit? I don’t see how it can be oppressive if they are choosing it of their own free-will.

          • Farstrider

            I should think it goes without saying, but a lot of people don’t have the ability to “just quit” and find another job. Employment agreements are (often) not like other agreements.

          • Kurt H

            Sadly, Farstrider, you *do* have to remind cartoon libertarians of how the job market works in the real world. They seem to expend considerable effort pretending that we live in a perfect world and condemning people for being “too stupid” to take advantage of all that awesomeness.

        • Theresa Klein

          By forcing the weaker party to accept compensation in the form of health insurance?

          • Farstrider

            By protecting the weaker party’s ability to get necessary and important medicine.

          • Theresa Klein

            Because the only way the weaker party can get that is by forcing them to get part of their compensation in the form of health insurance.
            The weaker party obviously is too stupid to spend cash on health insurance or pay for his own contraception.

  • ThaomasH

    Because Congress has seen fit to
    dispense a subsidy for the purchase of health insurance for employees THROUGH
    employers, I has enabled the employer to use part of the employee’s
    compensation to purchase the kind of health insurance that the employer thinks
    best rather than what the employees think best. If Congress now imposes limits
    on the employer’s choice, this can hardly be construed as a limitation of any
    liberty of the employer. Getting to decide what kind of health insurance
    coverage an employee’s money buys is not an exercise of religious liberty and therefore
    no exercise of religious liberty is being infringed by the ACA regulation.
    While agreeing that the NYT is being hyperbolic, if anyone’s religious
    liberty is being infringed it is the employee’s, not the employer’s.

    • Kevin Vallier

      I also don’t understand your position. You say: “If Congress now imposes limits on the employer’s choice, this can hardly be construed as a limitation of any liberty of the employer.” Congress imposes limits on the employer’s choice by limiting liberty. Your statement is not only wrong but seems to explicitly contradict itself.

      • martinbrock

        The employer/employee distinction is arbitrary. Since I may leave my productive organization at will, I employ the organization as much as it employs me. I may fire the organization as easily as it may fire me, and I wouldn’t have it any other way.

        The problem with this mandate is that people may not associate as they please. If a group of people wish to associate productively, the state compels the association to provide health insurance and also dictates the coverage, even if every single member of the association objects to particular coverage, even if the whole point of the association is to oppose this coverage.

        The issue is free association, not the individual liberty of either employers or employees. If the state wants to compel individuals to buy health insurance covering contraceptives, it can do so easily enough and avoid this issue entirely.

        • DavidCheatham

          The problem with this mandate is that people may not associate as they please.

          If a corporation is paying people to work for it, people *already* have rules about how they associate. Min wage laws, non-discrimination laws, workplace safety laws, etc.

          If a group of people wish to associate productively, the state compels the association to provide health insurance and also dictates the coverage, even if every single member of the association objects to particular coverage,

          See, and this is where nonsense shows up. There is no such thing as objecting to ‘coverage’. Insurance coverage is when an insurance companies says ‘If you ask for this, I will pay for it’. There’s no logical way to have a problem with someone offering to provide contraceptives at a discount to you. (And if so, you must be *outraged* by coupons.)

          The objection here is, hypothetical, two part.

          The first part is having an objection to paying for the coverage. Which is, of course, a complete lie, as insurance companies don’t particularly charge more for plans with contraceptives in them, and certainly aren’t *now* going to charge more now that they can’t drop pregnant women. People using contraceptives *reduces* health care costs. So the idea that ‘paying for it’ is a problem is nonsense, because what would actually happen is paying for the *absence* of it.

          The second objection is that…people would be *using* those contraceptives. But clearly that can’t be true if ‘ every single member of the association objects to particular coverage’.

          The issue is free association, not the individual liberty of either employers or employees.

          Firstly, People have freedom of *assembly*, not ‘association’. I don’t know why everyone keep saying it the other way.
          Secondly, people are free to associate however they want. There are actually very few laws about that. They can even, if they want, buy health insurance for each other, either individually or as a group if they can find an insurance company that will let them sign up as one.

          Associations, however, are not free to *hire* people however they want, providing whatever level of compensation they feel like in violation of the law.

          And they certainly do not have the right to do whatever the hell they feel like *just because* they’re doing it as an association, whether that’s paying less that minimum wage, not providing require benefits like health insurance, having their association meet in a condemned building, having their association sell PCP, or having some people in an association own other people in the association.

          ‘Association’ is not some magical word that makes what is happening legal. Freedom of assembly does not mean ‘freedom for any group of people to do whatever that group wants internally, regardless of law’.

          Now, knowing you, I’m sure you think people *do* have that freedom. But that is not what ‘freedom of assembly’ actually means. It isn’t even what it means for *libertarians*.

          • martinbrock

            … people *already* have rules about how they associate.

            How do a thousand statutory constraints on terms of association justify the thousand and first? How do any existing constraints justify the particular constraint we’re discussing?

            See, and this is where nonsense shows up. There is no such thing as objecting to ‘coverage’.

            Insurance is a contract between a person and group of other people. Of course, an individual can object to particular terms of the contract and decline to join the pool.

            Insurance coverage is when an insurance companies says ‘If you ask for this, I will pay for it’.

            Insurance companies don’t dictate the terms of insurance policies. They offer policies, and consumers choose among the offers.

            There’s no logical way to have a problem with someone offering to provide contraceptives at a discount to you.

            What discount to me? An insurance pool is not a magical fountain of health care. That people treat it this way explains much of the ballooning cost of health care in the U.S.

            For a completely predictable product like contraception, unless you expect people without the predictable expense to subsidize you, an insurance company is only a bill paying service. Paying other people to pay the bill for your contraceptives is costly, all the more costly because your bill paying service negotiates the price with another corporation more for the benefit of the negotiators than for your benefit.

            Insurance does not decrease the cost of anything. It only spreads out risk, so if you and I both are at risk for an illness or injury, we need not both set aside the entire cost of this contingency.

            Mutual aid is a different matter. We can share some health care costs regardless of risk, but recreational sex is a tough sell in this regard. If you don’t have recreational sex but still want to share the costs with people who do, that’s fine with me.

            Which is, of course, a complete lie, as insurance companies don’t particularly charge more for plans with contraceptives in them, …

            If I find you an insurance company (before the ACA) charging more for a policy covering contraceptives than for a policy without this coverage, all else being equal, will you agree that you are a liar? I’m not calling you a liar. I only think your accounting makes no sense.

            .. and certainly aren’t *now* going to charge more now that they can’t drop pregnant women. People using contraceptives *reduces* health care costs.

            People using contraceptives can reduce the pregnancy costs of people using contraceptives, and that’s fine with me. I’m not sure why this reduction in their costs is not enough for them.

            People living close to work reduces gasoline costs, but this fact doesn’t seem to justify compelling people who live close to work to share the cost of gasoline with people who don’t.

            Associations, however, are not free to *hire* people however they want, providing whatever level of compensation they feel like in violation of the law.

            This general assertion is not a defense of any particular constraint on association, so it’s irrelevant to the particular issue we’re discussing.

            ‘Association’ is not some magical word that makes what is happening legal.

            I never anywhere suggest that “association” is a magical word making anything legal. “Legal” is only a word making particular behavior subject to harms imposed by a state. I don’t take for granted that states imposing harms on people serve the interests of anyone but constituents of the state.

            I’m not discussing the Constitutional freedom of assembly in the U.S. I don’t think much of the Constitution anyway. It’s just a god-damned piece of paper, constructed largely to preserve slavery in the former colonies shortly after its abolition in the British Isles, you know.

          • DavidCheatham

            If I find you an insurance company (before the ACA) charging more for a policy covering contraceptives than for a policy without this coverage, all else being equal, will you agree that you are a liar? I’m not calling you a liar. I only think your accounting makes no sense.

            You won’t actually be able to find this, so I have no idea what you think this hypothetical is going to prove.

            Hell, you wouldn’t be able to find it anyway, because no insurance company has ever offered two identical plans except one has contraceptives.

            Moreover, more than half the states, even before the ACA, *already required contraceptive coverage* in insurance.

            However, there are a few studies where you can make a direct comparison.

            Back in 1999, the Federal Employees Health Benefits was amended to add contraceptives. The FEHB, if you don’t know, covered about 9 million people at the time.

            The premiums had already been set for the year, so there was a way for the FEHB to fix the premiums if costs rose. And they didn’t. They stayed exactly the same.

            There. A direct apples to apples comparison of identical plans. In 1998, no contraceptives, they calculated the premiums for 1999 under the same coverage (I’m sure premiums increased, simply because of rising costs, but they calculated that increase like normal), and then didn’t have to raise them at all when contraceptives were added.

            But I said contraceptives made things cost less! Well, yeah, now they do. Because we’ve now have 15 years of inflating medical costs, including for pregnancy. Meanwhile, of course, The Pill still costs basically the same amount.

            Mutual aid is a different matter. We can share some health care costs regardless of risk, but recreational sex is a tough sell in this regard. If you don’t have recreational sex but still want to share the costs with people who do, that’s fine with me.
            Contraceptives are not only used for ‘recreational sex’. One out of four women will be raped in their lifetime.
            (Did you know that a woman using the pill correctly and is extremely sexual active has a lower chance of pregnancy than a women who doesn’t use it but practices total abstinence? How? Because there is a not-insignificant change they’ll be raped.)

          • martinbrock

            The point of the hypothetical is that you throw around accusations of lying cavalierly, presumably because you assume that people disagreeing with you must be less angelic.

            That states or the FEHB or anyone else requires health insurance covering contraceptives is irrelevant. An association sharing the cost of contraceptives does not eliminate the cost of contraceptives, and covering contraceptives necessarily adds incrementally to the cost of coverage.

            That the FEHB requires contraceptive coverage in 1999 without a rise in the average cost of coverage in FEHB premiums (which are numerous), assuming that’s your “apples to apples” comparison, is meaningless, because you don’t tell me how many FEHB plans already included contraceptive coverage or how much margin the plans had before the requirement or what constraints the FEHB places on premiums.

            The simple fact is that contraceptives are costly, so a plan offering contraceptives is necessarily more costly than a plan not offering contraceptives, all else being equal. Ignoring this reality doesn’t change it.

            That pregnancy costs rise faster than contraceptive costs is irrelevant. Including the cost of contraceptives in compulsory health insurance premiums is not necessary for people to use contraceptives.

            Rape is also irrelevant. You are not more anti-rape than people who don’t want to pay for contraceptives because they don’t use contraceptives, and people need not pay a health insurance company to buy their contraceptives in order to buy contraceptives. Compelling people to pay this intermediary, whether or not they need an intermediary, can only increase costs.

      • ThaomasH

        I mean it was never a “liberty” of an employer to take advantage of Congress’s channeling the health insurance subsidy for employees through the employer for the employer to chose health insurnce according to his criteria (whether on relfious grounds or otherwise) rather than the employees’ preferences.  ACA constrains that iligitimate choice with respect to contraception coverage.

        • martinbrock

          The ACA violates the liberty of employees by forcing employers to provide health insurance covering contraceptives regardless of the wishes of the employees. Take the employer out of the middle, and nothing changes.

          If the ACA does not mandate insurance covering contraceptives, either individually or through employers, employees remain free to purchase contraceptives, through an insurance pool or otherwise.

          An employer opting out of the mandate prevents no one from purchasing contraceptives and increases the liberty of its employees to choose for themselves. An employer not opting out requires every employee to opt in.

          On the other hand, if an employer wants to make non-use of contraceptives a term of employment, I have no problem with that, as long as such an employer does not monopolize employment opportunities. Why should people not be free to associate on these terms?

          Why compel everyone to share the cost of contraception, even people who have no interest in sex?
          We’re basically discussing a recreational activity here. Taxing people who don’t enjoy a recreational activity, even people who can’t enjoy because they’re sexually disabled somehow, to contribute to its costs seems incredible to me.

          If I don’t like baseball, am I selfish to refrain from contributing to the cost of your ticket, or are you selfish to compel to contribute to its cost?

        • Theresa Klein

          You can either force employers to provide insurance coverage, or you can mandate that insurance coverage cover things employers have a religious objection to.
          You can’t do both. Employer mandate + contraception mandate = unconstitutional.

          • ThaomasH

            It
            would be an interesting discussion as to whether the inclusion of contraception coverage in subsidized insurance is an infringement of the religious liberty of the insured person who has a religious objection to paying for such coverage. It is, after all, the disposition of the employee’s compensation that is affected by the ACA regulation and I would favor such a “conscience” exemption.

            The issue under discussion, however, is whether
            the ACA regulation can violate the religious liberty of an employer.  As I see it, the employer has no legitimate interest in what services are covered by the employee’s health insurance and so there is no infringement of any religious (or other) liberty of the employer.

          • Theresa Klein

            “As I see it, the employer has no legitimate interest in what services are covered by the employee’s health insurance”
            The employer has no leglitimate interest in what they pay for or how they compensate their employees?
            Seriously?
            If you are so opposed to employers controlling what their employees spend money on, you should be out there advocating for a ban on employer-provided health insurance. Not to make it mandatory.
            Require employers to pay their employees in cash only. Problem solved.

          • ThaomasH

            I’d be delighted if health insurance
            were subsidized directly rather than through employers.  That, however was not the issue under discussion.  I just do not see Congress’s
            mistake (in my view) on how health insurance should be subsidized can be construed to create a legitimate interest by employers in what items are covered by their employees’ health insurance plans.
            And if the employer has no legitimate interest in the coverage, then theemployer’sreligious liberty cannot be infringed by a regulation that requires contraception to be covered.

          • Theresa Klein

            I’d be delighted if health insurance
            were subsidized directly rather than through employers.

            You mean by removing the employer tax deduction, or replacing it with an individual tax deduction, right? Right?

            I just do not see Congress’s
            mistake (in my view) on how health insurance should be subsidized can be construed to create a legitimate interest by employers in what items are covered by their employees’ health insurance plans.


            You don’t see how forcing someone to buy something for a third party might create a legitimate interest in the subject as to what, precisely, they are buying for the third party?
            So if the government forces me to buy you a car, and I have a moral objection to burning fossil fuels, I have no legitimate objection to paying for the Humvee you desire?

          • ThaomasH

            Something like that, although it would need to be based on tax credits, not a deduction.  The “exchanges” are an example.

    • Theresa Klein

      This would seem to argue that if forcing employers to purchase health insurance for their employees would violate the employers religious liberty, then it is unconsititutional to force employers to purchase health insurance.
      So the employer mandate is unconstitutional. I agree. Strike down the employer mandate instead. Problem solved.

  • Motivated Cognition

    Yes. Interesting how difficult this is for people to grasp. That religious apologists find an audience is indicative of the depths people will go to to rationalize their beliefs.

    This is relevant:

    http://lesswrong.com/lw/1mh/that_magical_click/

  • Motivated Cognition

    Much of this debate centers around what various words mean: what is coercion and liberty and so forth. If you want to know what’s going wrong inside the heads of people who disagree with you (regardless of which side of the debate you’re on), or if you want to have a better understanding of your own perspective, I highly recommend going through the following sequence of posts on words and how they interact with the human brain.

    http://lesswrong.com/lw/od/37_ways_that_words_can_be_wrong/

    Austro-libertarians of the praxeological variety will find this post particularly challenging to their worldview:

    http://lesswrong.com/lw/nf/the_parable_of_hemlock/

    This post will help you make any discussion about definitions more productive:

    http://lesswrong.com/lw/nh/extensions_and_intensions/

    And this will help you avoid putting too much emphasis on defining words in the first place:

    http://lesswrong.com/lw/ng/words_as_hidden_inferences/

    These posts will help you understand much of what usually goes wrong when people have arguments about what is meant by “liberty” and “coercion:”

    http://lesswrong.com/lw/nj/similarity_clusters/

    http://lesswrong.com/lw/nk/typicality_and_asymmetrical_similarity/

    These posts will help make you feel dumb about having such an argument in the first place:

    http://lesswrong.com/lw/nm/disguised_queries/

    http://lesswrong.com/lw/no/how_an_algorithm_feels_from_inside/

    http://lesswrong.com/lw/np/disputing_definitions/

    And here are some posts to help you have more productive and intelligent conversations in the future:

    http://lesswrong.com/lw/nr/the_argument_from_common_usage/

    http://lesswrong.com/lw/nu/taboo_your_words/

    http://lesswrong.com/lw/nv/replace_the_symbol_with_the_substance/

    http://lesswrong.com/lw/nw/fallacies_of_compression/

    The whole sequence is highly worth reading. Certainly worth much more than reading the comments on a blog post about politics.

    • Andrew

      While not related to the specific argument at hand, up-voted for interesting links.

  • Roderick T. long

    I’ve said my peace on why I think the contraception is illiberal and immoral.

    Two typos, or a typo and a Freudian slip? 🙂

    • Kevin Vallier

      Fixed. Sigh. Lol.

  • M Lister

    This is a big deal, as it shows that even a “liberal” justice thinks
    something is seriously wrong with what the feds are doing to religious
    non-profits.

    For what it’s wroth, that’s not something you can infer from the granting of a stay, at least not in the way you suggest here.

    • Kevin Vallier

      So you think she would grant a stay even if she thought the challenge lacked legal merit?

      • M Lister

        That depends in part on what you mean by “lacked legal merit”. But, even if she thought the case was a sure looser, that wouldn’t necessarily mean she’d not grant a stay. Stays are a bit technical and frankly hard both to explain to and under stand by non-lawyers. Note first that in controversial cases it’s not at all unusual for a panel that has just decided a case for one side to grant a stay of its own decision. A panel won’t reach a decision that they think there is “something seriously wrong with” as a legal matter, so merely granting a stay can’t mean that as a legal matter. And, it’s no indication at all what the judges think as a moral matter. What it _might_ mean is that the judge (or justice) thinks there is a significant (but not at all necessarily certain) case that the decision could be over-turned by another court, or a majority of the supreme court. Sotomayor might think that there is a majority on the Supreme Court that would rule against the mandate here, even if she thinks that would be a 100% wrong decision. In that case, there would be strong grounds for a stay, but it would give no indication of her own position at all. But, she might not even think that. There have already been stays imposed by other circuits, and it’s reasonable to think that it would be undesirable to have a split in the law here until the Supreme Court can decide the case. That, too, would tell in favor of a stay completely independently of the legal (or moral) merits of the case. Finally, it’s completely compatible with issuing a stay that Sotomayor thinks that the mandate is 100% fine legally and morally, on the proper understanding of the constitution and statute, but that she thinks that current precedent opposes it. Which is the right interpretation? It’s impossible to say from the grant of a stay. They are usually quite opaque from the outside, and typically should be, as they are not decisions on the merits of the case. Because of this, I do what to insist that you cannot draw the conclusion from the grant of the stay that you suggest. To try to do so is a mistake.

        (This is independent of the question on the merits, both moral and legal.)

  • Sharon Presley

    There is a medical issue which has not yet been brought up here. The “contraceptive” pill is not just used for contraceptive purposes. Many physicians prescribe them to women for medical conditions that have nothing whatsoever to do with contraception.
    Below is an excerpt from WebMD on “other uses for the pill.” However they should not be called “perks” IMO because in many causes they are the *primary or even only* reasons the pill is used. Therefore, the Catholic ban on the pill is in effect a ban (within the insurance) on certain medicines.

    Please note: I am not taking a stand on the issue, merely pointing out that the Catholic stand fails to subscribe to good medical practice, especially in regard to #3, 4, and 5. Painful periods are not rare nor are medical conditions that lead to what is often called PMS but is more appropriately called simply dysmenorrhea, an abnormal medical condition.

    You all can argue the principles all you want; I’m simply pointing some of the practical medical consequences of restricting access to so-called birth control pills.

    Here is the excerpt from WebMD, one of the leading, physician-written blogs

    “Pill perk #1: Lower cancer risk
    Taking oral contraceptives (OCs) can slash your risk for both endometrial
    and ovarian cancer by more than 70 percent after 12 years; even just one to
    five years may lower your risk by 40 percent. They work by reducing the number
    of times you ovulate in your lifetime: Ovulation may trigger cell changes in
    the ovaries that can lead to cancer. If you’re worried about using the Pill for
    too long, relax. “You can safely take the Pill for 20 years or more,” says
    Stephanie Teal, M.D., director of family planning at the University of Colorado
    Health Sciences Center in Denver. Barring health issues, the only reason to
    stop is if you want to get pregnant.

    Pill perk #2: Clearer skin
    Estrogen – the female hormone found in most OCs – helps clear your skin by
    decreasing levels of testosterone, a male hormone that stimulates oil
    production. Although Ortho Tri-Cyclen is often used to treat acne, many pills,
    such as Yasmin or Desogen, can banish blemishes. You’ll likely see results
    within a couple of months.

    Pill perk #3: Lighter, less painful periods
    When you’re on the Pill, you don’t ovulate, so your uterine lining doesn’t
    build up as much. In fact, you don’t have a true “period” during the placebo
    phase – just withdrawal bleeding, in which your uterine lining breaks down in
    response to the drop in hormones. So most OC takers bleed less for a shorter
    time, and have little or no cramping. If you want an even lighter flow, ask
    your doctor about Seasonique, a new pill that gives you four periods a year and
    helps reduce period length to three days on average.

    Pill perk #4: PMS relief
    Hormonal shifts during the second half of your cycle are the main cause of
    PMS symptoms. The Pill can provide relief by steadying hormones, but different
    symptoms require different pills. If breast tenderness is your complaint, an OC
    that is lower in estrogen (such as Mircette) is your best bet. If you want to
    beat bloating, try a pill (such as Yasmin or Yaz) with drospirenone, a
    progestin shown to help prevent fluid retention. “Use the Pill for three to
    four months to see if it provides the relief you’re looking for,” says Pelin
    Batur, M.D., a women’s health specialist at the Cleveland Clinic Independence
    Family Health Center.

    Pill perk #5: Endometriosis relief
    Endometriosis, a condition in which uterine-lining tissue grows in other
    pelvic areas, can lead to scarring, severe pain, and sometimes infertility. The
    Pill stops the growth of tissue in other areas by reducing the hormones that
    cause the lining to build up.”

    • Kevin Vallier

      I was very clear in the post that you might complain that Catholic teaching results ino a lack of care. But that does *not* turn it into a restriction on liberty.

      • Farstrider

        Is your only objection the use of the word “liberty”? In other words, you’d have no problem if the quote used “health” or “public health” instead of “religious liberty”? Because I might agree with you on the phrasing, but that seems like a pretty small quibble and not worth the ink you’ve spilled.

        • Kevin Vallier

          Maybe it’s just because I’m a political philosopher, but I think it’s critical to be clear when a liberty is being restricted and when someone isn’t doing someone else a favor.! Confused thinking about liberty matters. I think it has real consequences.

          • Farstrider

            Well, if your objection boils down to nothing more than an admittedly poor word choice by a NYT columnist (not a political philosopher), then it is pretty small potatoes. Regardless of whether it is an intrusion on “liberty” or “religious liberty”, it is certainly an intrusion by the employer on the employee’s economic and health well being.

    • martinbrock

      A dual use is not an argument for mandatory contraceptive coverage The ACA could mandate only coverage for hormone supplements that a doctor declares to be medically necessary regardless of a contraceptive effect. Ethyl alcohol has medical uses too, but that’s no argument for mandating an insurance pool covering my gin and tonic.

      I see no point in compelling people to share the cost of PMS relief (or treating erectile dysfunction), as opposed to the cost of food and shelter for example.

      • John Say

        The objection of Little Sisters of the Poor is to contraception. Not the pill itself, nor to its other uses. If there is no possibility of contraception, they have no objection. If there is the dual use justification does not mitigate the moral objection

    • John Say

      I would be very surprised if Little Sisters of the poor have any objections to providing the pill to people who can not conceive.

      Trying to weigh some else’s moral decisions external to their perspective is difficult or impossible. the fact that a medical condition can be alleviated by a practice that a given perspective considers immoral does not change its morality.

      You end up with these moral morasses when government jumps into domains it does not belong in.

      • Sharon_Presley

        You said “providing the pill to people who can not conceive.” That is not what I said at all. I didn’t specify age. But there are thousands of women of childbearing age who have endometriosis or dysmenorrhea. So, if they are of such age, they are screwed if they work for a Catholic institution.

        And I wasn’t talking about “morality” per se. I was talking about good medical practice. I wasn’t even talking about the government either. I was simply commenting on the fact that Catholic institutions are more interested in their dogma than good medical practice.

        Please, no more strawmen.

        • John Say

          My argument is not a straw man. Nor is it even my personal view. But it is a more accurate expression of the catholic church.

          No one is screwed because they do not get something they never had a right to in the first place. They might be treated unfairly, but life is unfair.

          you may not be talking about morality, but that is what this is about for the church. You do not share their morality – and your morality may be superior to theirs – but you still have no right to impose yours by force and government is force. Best medical practices do not trump morality.
          We could certainly breed better humans, but we object morally to doing so.

          The church is more interested in their dogma than good medical practice.
          i happen to agree with you that the medical practices we are talking about are both good and moral. But the catholic church beleives they are immoral. And we have no right to force catholics to violate their morals just because we beleive we are right medically and morally.
          Further as I noted, it is entirely possible for something to be BOTH medically good practice and morally bad – even by your and my morals.

          Libertarians have a standard for resolving these issues.
          Do catholics practicing their morality initiate violence against others ? No they abridge the natural rights of others by force ? If not we have no right to interfere merely because they are wrong.

  • MARK_D_FRIEDMAN

    This issue seems quite simple to me. If the state wants to provide contraception as a right to all its citizens, it can open up government stores in every city, town, and hamlet, and give this away for free or at a nominal price. Problem solved. The government doesn’t wish to do this, but demands that employers do it for them. Some of the employers don’t wish to do this for reasons of conscience. I don’t see how conscientious objectors to the state’s policy can be violating anyone else’s rights by refusing to do something the state could perfectly well do without them, and I don’t see how anyone can avoid calling what the state is doing here coercive and wrong.

    • StephenMeansMe

      Oh, there probably ARE people in government who’d want to do that, it’s just that the government isn’t a monolith with one mind. (Of note, you have a very intense faction in Congress who oppose contraception on principle and make references to women keeping their legs closed.)

      The general employer-provided-insurance situation is screwed up anyway, I don’t understand why there needs to be a de facto barrier for so many people (private insurance is really expensive without an employer subsidy, for whatever reason) but there is, and *in light of that* I don’t think we can dismiss employer/employee cross-purposes.

      • John Say

        Private insurance is more expensive because the market is smaller – among other reasons.

        • StephenMeansMe

          That’s surprising; I mean, don’t we have pretty much the exact same companies providing private insurance? Why wouldn’t it all be dumped into the same risk pool?

          • John Say

            I am not expert on corporate health insurance, but for individuals and small businesses most of the time the cost of insurance is not based on the projected costs for all similar groups within the same company. But for You alone or your group alone.

            One of the things PPACA could have done but did not would have been to allow more options for individuals and small groups to join larger pools.

            I would also note that both insurance companies and healthcare as a whole must make money somewhere.

            I recall biding for and getting a number of government contracts, the rule of thumb was you can charge as much as you want – so long as you do not make money.
            I am pretty sure medicare and medicaid work that way.
            I remember one client that was a government contractor, deliberately scheduling transcontinentla flights at the very last minute. If there were no seats in coach or business class, I got to fly first class, and the client made more because they billed the government my costs + 15%.

            Never presume fiscal sanity with anything that involves government.

            Do you think the entire auto insurance industry spent as much in the first year to bring up their websites and healtcare.gov (the scale is nearly identical) and they allow far more options provide more value and are friendlier. Do you think they took 5 years to get there when they decided to move to the web ?

    • John Say

      that socialises the problem it does not solve it.
      Now instead of forcing Little Sisters of the poor to pay for contraception for an employee, you have forced each and every one of us to pay for contraception for everyone. Little Sisters of the poor are still compelled to violate their religious beleifs as are many of the rest of us..

      • MARK_D_FRIEDMAN

        I agree with you that in the best of all possible worlds the state would be out of the medical insurance business, and thus also out of the business of forcing employers to provide contraception as a part of it. However, that doesn’t affect my point. If tax-funded coercive government healthcare is morally impermissible, then forcing unwilling employers to participate just adds a second wrong to the first.

  • Farstrider

    So, employee Bob needs a heart transplant. He’s in the ICU, waiting for a donor heart. Luckily, a heart is found, and it is rushed by medivac copter to the ICU where Bob is waiting. Just before the surgery begins, Bob’s employer, Mary, rushes in and says “Stop the procedure! I prayed to Aphrodite last night, and she told me that, as the Goddess of Love, it would be an offense to her sacred name to replace this man’s heart. So I’ve changed insurers, and now heart transplants are no longer covered.” Bob is not a follower of Aphordite, and being confined to the ICU, he cannot find a new employer. Nor does he have the funds to cover the surgery himself. And because he is uninsured, the hospital won’t do the transplant. Bob dies.

    Should Mary have the unfettered right to deny Bob this medical care because she disagreed with it on religious grounds?

    If so, what is the source of that right? (hint: it’s not the First Amendment)

    If not, there any meaningful way to distinguish Mary from the Little Sisters of the Poor? (hint: the seriousness of the condition, the consequences of it going untreated and the costs of the treatment are not meaningful ways to distinguish the two scenarios on principal – instead, that is just a question of line drawing, which I do not understand Kevin to be doing here).

    • geoih

      The solution is that Bob should pay for his own heart transplant and it shouldn’t be any of Mary’s business. Mary’s opinions in favor or against any medical treatment are only a factor because Mary is forced to be involved by the state’s (apparently with your hearty support) coercions and threats.

      • MARK_D_FRIEDMAN

        Exactly.

      • Farstrider

        You are just ducking the question. The only reason we are having this discussion is that the ACA DOES require employers to provide health insurance. And as described in the hypothetical, it is Mary’s business, because her religious beliefs deprive him of necessary medical care, resulting in his death.
        Please answer the hypothetical, instead of fighting it.

        • John Say

          If the state hands you a pistol and says you must shoot Bob or Mary is it ducking the question to challenge the right of the state to force you to shoot anyone ?

          • Farstrider

            Yes, that is by definition ducking the hypothetical.

        • Theresa Klein

          The only reason we are having this discussion is that the ACA DOES require employers to provide health insurance.

          Perhaps there is something wrong with requiring employers to provide health insurance.

          • Farstrider

            Sure, let’s do single payer. No objection there, I assume?

          • Theresa Klein

            Of course the ONLY possible alternative to forcing some people to buy health insurance on behalf of other people is for the state to buy it.
            It would be incomprehensible to have individuals buy their own health insurance. Such a thing cannot be conceived of.
            Nevermind that that is exactly what the rest of the ACA does with the individual market. The progressive mind cannot even CONCEIVE of the possibility that everyone be in the individual market, even with subsidized private health plans.
            This is beyond the realm of possibility.
            The only alternative to employer-based care is OBVIOUSLY single payer. So you libertarians should just get used to forced purchasing of other people’s contraception because nyah-nyah single-payer!!!

          • genemarsh

            I see you doing a lot of amateur diagnosis of those you disagree with here. The way you demonize, compartmentalize, display hostility, self-righteousness, double standards and dogmatism pegs you as a classic right-wing authoritarian. Just thought you should know.

          • Theresa Klein

            Progressive demonize themselves by attempting to force people to do things that violate their conscience. They haven’t gotten any help from me at all.

    • John Say

      1). Bob should purchase and own his own health insurance which would resolve a plethora of problems beyond this.
      2). Which of the current cases has an employer arguing that they no longer wish for religious reasons to provide a benefit they had no objection to before ? Of those zero cases, which has made that change in a fashion depriving an employee of a benefit they had already earned ?

      3). Should Mary be obligated to provide Bob anything beyond compensation for the work he has performed, and performance of any prior contract they have ?
      If so what is the source of that obligation – hint it is not the constitution.

      4). If government stayed out of those areas that are not its proper domain, we would not have to try to make idiotic distinctions between mary and little sisters of the poor. Generally when we find ourselves having to split hairs, it is because we made a poor choice elsewhere.

      • Farstrider

        (1) While he is in the ICU dying? That does not sound reasonable to me. Maybe it does to you. But who would insure Bob in this scenario? No one.
        (2) Does that matter? If so, change the scenario so that Mary always refuses to have insurance that pays for heart transplants (but it pays for liver transplants). Then it’s ok?
        (3) The ACA is the source, obviously. Otherwise we would not be having this conversation.
        (4) The government’s proper domain is the conversation. Assuming that regulating healthcare is not the domain, and then arguing from that assumption that the government is acting outside its domain, is tautological. Or is it circular? In any event, you’ve assumed the answer to the question rather than answering it.

        • John Say

          confronting this idiotic hypothetical directly.
          Mary provided Bob with health insurance.
          Presumably not as a gift but as part of Bob’s compenesation. Bob therefore has the right to that compensation – according to whatever the previously specified terms were. When those terms expire. Mary is free based on her new found religious principles to negotiate differnently.

        • John Say

          1). If Bob or you or I really want control of our health insurance – atleast to the same extent we have over say auto insurance, then we should buy it ourselves.
          But presuming the idiotic hypothetical as it exists.
          Bob and Mary are both bound to whatever their prior arrangement was until it is breached or expires – regardless of changes in either of their circumstances. If breached they are entitled to be made whole. If it expires they are each free to renegotiate whatever they want – ow walk away.
          2). It matters greatly courts do nto decide hypotheticals.
          If Bob and Mary agree to insurance that does nto cover heart transplants and bob needs one. That is bob’s problem. Even the ACA does not change that. The fact that something bad happened to you does not entitle you to be made whole. You are entitle to expect that whatever agreements you may have are honored. But you may not force someone into the agreement you want, merely because you want it. Just as they may not force you to work for them merely because they want you.
          3). The ACA was an idiotic mistake the majority of americans grasp that before it passed. Their numbers only grow. It would be an enormous mistake even if 1 person grasped that.
          4). No I have pointed out that these stupid conflicts occur when government acts outside its proper domain.
          Religious freedom is a right of individuals with respect to government. There is no such right in individual relations – we are always free to walk away. When government intrudes we end up with these types of messes were government tries to impose on one party something that either party is free to insist on on their own, but Government is prohibited from touching.
          you can pretend government is free to dick arround in commerce. But doing so does nto free it from its other constraints – even though those engaged in commerce are not bound by those constraints. Nor is government free to choose sides in conflict with rights it may not interfere with.
          Basically you end up with a mess. This was inevitable.
          The left operates on the delusion that because it beleives that what it is doing is good, that somehow the rules should not apply.

  • CbyN

    The progressive left have, in my experience, very different conceptions of what constitutes liberty and freedom. Liberty is construed from a “degrees of freedom” perspective instead of the liberty rights perspective of freedom to act, and in many instances conflation of the two. In other words, not providing someone something reduces their [degrees of] freedom. A person’s self-agency, their ability to act toward attaining their desired ends, is increased by providing them with the means to do so.

    • John Say

      Trying to find a rational logical scheme inside progressivism is futile. It is an ideology rooted in contradiction. It is usually trivial to drive even the sharpest progressive into a conflict between their own values.
      Modern progressives do not even make a pretense of logic or rationality.
      This objective is more important than that because of the whim of the moment.

  • DavidCheatham

    I can sort of understand the claim that these employers are failing to provide proper medical care to their employers, but it is just false to say that employers are restricting liberty.

    That is a reasonable point. But you know what else is an abuse of the English language? This sentence:

    To say that religious non-profits pose more of a threat to liberty than the federal government would be seriously confused.

    Working off the assumption that by ‘liberty’, you mean *religious* liberty, that sentence abuses English. Why?

    Because corporations have no religious liberty. At all. The entire concept is nonsense. (And yes, by ‘corporation’ I not only mean non-profits, but I even mean actual churches.)

    None of those entities have any religious beliefs. In fact, they have no rights at all. Those things are merely associations of people.

    The people in those things do have such beliefs, and do have rights in regard to such beliefs, and if some CFO decides to sue the corporation he’s in because he thinks it is immoral to sign checks to an insurance company that provides contraceptives, and they have demanded he do so or get fired, well, that would be an entirely different case. (Not one that I would particularly be sympathetic to in that _specific_ instance, if you have religious objections to doing a job, you probably should not apply for that job, but I could be sympathetic of hypothetical other arguments in that area.)

    But corporate ‘beliefs’, as they are, are set by *law*. They are created things. Their ‘beliefs’ are a combination of what their charter says, what their current owner says, and, most importantly, what *the law* says, and the law wins. (In fact, the law is the only reason they have to listen to what their charter and owner says…without law, corporations would just be pieces of paper.)

    Of course, I’m putting ‘beliefs’ in quotes. A better way to say it would be this: People have beliefs of a personal nature, and they also have a set of rules they have to follow that other people have set up. When those beliefs conflict with what society demands, we *sometimes* allow exceptions, like the conscientious objector exception to the draft. And this paragraph could be a lot longer, bringing in constitutional issues, but none of that is relevant here.

    Corporations…do not have beliefs. *Everything* they do is because someone else tells them to do it. This someone else may be their owner, or the law, or a judge, or just some employee given authorization to make that decision. But they have no beliefs. They don’t even have a mind to have beliefs in.

    You will notice we don’t, in this world, allow people to be conscientious objectors because *someone else* says war is immoral. We don’t allow people to refuse to pay social security because *some other* people are Amish. We don’t allow someone to use peyote because it’s a sacrament to *other* people.

    And thus we also don’t allow corporations to not follow the law because *some other* people object to them paying for insurance that covers contraceptives. Even if those other people are the corporation’s owners, or executives.

    Religious liberty only exceeds *to your actual religious beliefs*, not beliefs that other people are telling you to follow. I mean, you can feel free to do those things also, but you don’t get some sort of exception under the law for things *you* do not actually believe.

    And corporations *actually believe nothing*, and thus get no exception at all. Unlike a lot of the ways of trying to figure out what people *actually* believe that courts have to decide (Are they actually Amish and opposed to social security, or are they just claiming that to pay less taxes?), the case of corporations is pretty cut and dry…they aren’t even *sentient*.

    • John Say

      Corporations are merely people freely associating for an often economic common purpose. Free association is actually one of our rights too.
      A group of individuals does not have less rights than a single person.
      I do not recall where it is asserted that we can infringe on any or all rights if people chose to associate for some specific reason.
      Can we deny free speech to MoveOn ? Can we deny freedom of assembly to AFLCIO ?

      Rights are bars against using force to infringe on liberty – as only government may use force other than for self defense and all government action is force, only rights only exist with respect to government.
      A person or group can not infringe on your religious freedom – because you are always free to go elsewhere. If they use force to attempt to do so – it is the use of force that is the violation.

      So you have wreaked havoc on language and logic possibly worse than the times.

      • DavidCheatham

        Corporations are merely people freely associating for an often economic common purpose.

        No corporation requires more than one person.

        Nor does any association require a corporation.

        That entire premise is nonsense.

        Free association is actually one of our rights too. A group of individuals does not have less rights than a single person.

        Corporations are not a ‘group of individuals’. They are legal fictions that someone created and the government lets people act on behalf of.

        Can we deny free speech to MoveOn ?

        Yes. Assuming by ‘we’ you mean ‘the government’.

        Of course, that can’t really happen to just *MoveOn*. That would be a bill of attainder, or unlawful seizure. (While corporations don’t have rights, people do have the right to not have their corporate possessions weirdly devalued like that without due process.)

        But could the government pass a law barring *all* corporate speech, or all political corporate speech? Yes. (At least, with a *sane* Supreme Court.)

        Of course, if that happened, the people who ‘own’ the MoveOn corporation (As a non-profit, it’s probably owned by its members.) would probably dissolve it, and simply start pooling resources informally and issuing *their own* speech. Perhaps even attributing them the group by name.

        Can we deny freedom of assembly to AFLCIO ?

        That’s…a weird question. The answer is ‘yes’, but who is AFL-CIO trying to assemble with in this hypothetical?

        I’m hesitant to get any deeper in that answer, because I suspect you think that’s something to do with unions, but AFLCIO is not a union. It’s a lobbying group that *contains* unions.

        If your question is, as I suspect it is, ‘could the government stops a specific union from existing’ (Which has nothing to do with the freedom of assembly of the *union*, and is really about the freedom of assembly of the *people in the union*.), I suspect you are unaware that the government stops the creations of unions all the time. (Usually because it failed a vote.)

        In fact, some of the union regulation actually *does* infringe on the rights of workers to assemble. The right of workers, not the hypothetical rights of a hypothetical union which, in the example I’m talking about, does not even *exist*. People do not have a right to a ‘union’, as some sort of legal entity. However, they do have the right to talk to other people and behave in any legal manner they wish as a result of that discussion, and have the right to present some sort of demands to their employees, and often anti-union regulation is written in such a way as to stop that. (I.e., stopping workers from creating slowdowns or sick-outs.)

        That said, I will state that, unequivocally, that unions (along with any other corporations) do not have the right to exist, or any rights once they do exist. (Please note that ‘no right to exist’ does not imply ‘And I wish they were gone’.)

        Rights are bars against using force to infringe on liberty – as only government may use force other than for self defense and all government action is force, only rights only exist with respect to government.

        Oh, well, that’s easy enough to do.

        I mean, the ownership of Hobby Lobby is just a piece of paper *in the government’s control*.

        So the easiest thing is to, without any force at all, simply assign ownership to someone else.

        Man, I wish all problems were this easy to solve without force.

        • John Say

          The precise number of people in a corporation does not alter the argument. You are still infringing on the rights of its individual members.

          Government does not get to dictate that specific means by which we associate or specific purposes for which we associate have no rights.
          That is no different from saying black people do not have free speech or Nazi’s do nto have free speech.

          Restricting MoveOn would only be a bill of attainder if MoveOn was an individual or group of individuals.

          Government can do whatever the supreme court allows.
          Are we arguing what this supreme court allows ? What a different one might ? what a sane understanding or the plain language of the constitution allows ? Or what the role of government allows.

          The AFLCIO is an assembly or association and has the right of assembly and association as well as retaining the individual rights like speech of its members. Same for MoveOn, GM and Little Sisters of the Poor.

          Humans do not have a right to exist. They just have the right not to be violently wrenched out of existance by other humans or government.

          Nor is there either a right of individuals or a power of government to interfere with the individual or collective rights of others.

          Hobby Lobby is not a piece of paper in government control. Government is responsible for protecting property rights and adjudicating disputes over them.
          It is even entitled to forcibly transfer property from those causing harm to those harmed.
          but it can not create or destroy property or any other rights at whim.

          Put differently paper does not create rights. It documents them. Altering the documentation outside the law is theft and or fraud.

          • DavidCheatham

            The precise number of people in a corporation does not alter the argument. You are still infringing on the rights of its individual members.

            No, the individual members can do whatever they want.

            The courts are free to state that such a thing is not the actions of the corporation. (And, hence, using corporate money for it would be illegal.)

            If people want to wander around saying ‘I own Hobby Lobby, and I think contraceptive are wrong’, they have the right to do so. If every single person working for Hobby Lobby wants to walk around saying that, they can. If they want to keep repeating it *while* working for Hobby Lobby, they can.

            But Hobby Lobby does not, particularly, have the right to say contraceptives are wrong. Hobby Lobby the corporation is not the same as the owners, and it’s not the same as the workers. It is a fictional entity that ‘does things’ merely by government permission.

            Not that I’m saying it is illegal or even should be illegal for Hobby Lobby to state that. I’m just saying Hobby Lobby, the corporation, doesn’t have a *right* to that. Hobby Lobby has no rights to do anything at all. It doesn’t even have a right to *exist*.

            You’ve conflated ‘Hobby Lobby’ with ‘a group of people’. Those aren’t even *close* to being the same thing. Hobby Lobby is a piece of paper filed with the government, controlled by specific laws about who are allowed to state ‘what it does’ at specific times and conditions.

            The people who currently are allowed to operate that piece of paper may, indeed, be a group of people, and do indeed have various rights. And those people can act even as a group if they want.

            But that doesn’t mean they can make *Hobby Lobby* do something if the government says Hobby Lobby *doesn’t* do that thing.

            Restricting MoveOn would only be a bill of attainder if MoveOn was an individual or group of individuals.

            No. MoveOn is *property*. The government cannot just randomly pick a piece of property and alter it, anymore than it could just wander up and tear down your house without due process.

            MoveOn, and your house, have no rights. That does not mean the *owners* do not have rights to not have their property devalued in such a manner.

            Of course, that only applies to specific targeting. The government can, of course, require *everyone* to follow the same rules.

            Government can do whatever the supreme court allows. Are we arguing what this supreme court allows ? What a different one might ? what a sane understanding or the plain language of the constitution allows ? Or what the role of government allows.

            I guess I am arguing what a sane understanding of the constitution allows. Or, rather, a sane understanding of the basic concept of ‘corporations’. Corporations literally do not exist at all outside of the government, so the idea that the government *must* allow them to do things is complete and utter nonsense.

            Hobby Lobby is not a piece of paper in government control.
            Well, that’s just where you’re wrong and I’m right, then, considering that is *literally* what it is.

            I like how everyone here seems to think corporations are magically groups of people, acting as a group. You do understand that the owners do not actually control corporations, right? They vote on a board of directors that control them. The board then hires executives that actually run the place. The executive, in turn, hires other people.

            So which group of people do you think the corporation is an ‘association’ of?

            You’re about to say ‘the owners’, but I must point out, *under law*, the sole powers of the owners of a corporation is to vote for a board. (And authorize certain extreme actions, like dissolving the company or a merger.) They do not really have any powers beyond that. The owner of a corporation cannot wander in and start firing people, or whatever.

            So is it the board? But the board can change all the time! It can change randomly with a single vote of the owners!

            The CEO? Now you’re just being silly.

            So who is it having their rights infringed?

            And you do realize that the state secretary of state can actually *act as the corporation* in certain circumstances, right? For an obvious example, if all the owners of the corporation have vanished, the secretary of state *operates the corporation* to wind it down.

            Government mind control! Woo-ooo!

          • John Say

            “No individuals can do what they want”

            And at that point the debate ends.
            What individuals may do as individuals they may not be prohibited from doing in groups.

            “the courts are NOT free to” …..

            Every single person working for Hobby Lobby is not the owners of Hobby Lobby.

            If I own a car I may speak in it.
            If I own a house I may speak in it.
            If I own an auditorium I may speak in it.
            Government may not tell me otherwise.

            If I an ten others own an auditorium my right to speak in it my only be constrained by those 10 others. Not government.

            Hobby Lobby the corporation is the property of its owners, Just as your house is your property.

            That peice of paper you fixate on is not ownership. It is at best one form of proof of ownership. I own something whether I can prove it or not. My ability to prove I own it might rely on paper. Paper is proof of something. It is not the thing itself – unless the thing is paper. In the modern world the proof often is not even paper it is intangible bits in the ether. Do you think Warren Buffet has paper for all the stock he owns ?

            Actually the owners of a corporation can do whatever they please under the law. But if they engage in the management of the corporation they lose limited liability protection. Regardless, they elect boards, just as we elect representatives. They send them forth with specific messages and intents – and they are free to do so.
            Unlike government elections owners may recall their boards at any time for any reason. Corporations are bound to bylaws – because the owners voluntarily agreed to them. Government has little responsibility beyond enforcing them – as all contracts.

            The state can step in when individuals abandon their property too. How does that change anything ?

            The state offers limited liability protection in return for conforming to a small number of rules. That is actually a bargain. You are free to breach, but you lose the protection.

            Most everything else about a corporation is by agreement between owners.

            Unions are corporations, Are union members prohibited from demanding that their boards represent them and advocate positions the members hold ?

            Churches are corporations.
            Publishers are corporations
            TV stations are corporations,
            Political parties are corporations.

            In the modern world nearly every single thing we do in concert is done in a corporate form.
            If Hobby Lobby has no free speech rights, then neither does the DNC, AFLCIO, Methodist church, Planned Parenthood, …..

            The sole purpose of many of these is to advocate for a particular view.

          • DavidCheatham

            That peice of paper you fixate on is not ownership. It is at best one form of proof of ownership. I own something whether I can prove it or not.

            I didn’t say the *ownership* of corporations was a piece of paper. I said the corporation *itself* was a piece of paper.

            They send them forth with specific messages and intents – and they are free to do so.

            No, they aren’t. Owners (By which I think you mean boards) are actually restricted in what sort of directives they can give their management. They can only give specific directives. In my state, those are laid out in GA code 14-2-302, which is much too long to quote here. The relevant one is here, of the powers of a board:

            (11) To elect directors and appoint officers, employees, and agents of the corporation, define their duties, fix their compensation, and lend them money and credit; ( http://law.justia.com/codes/georgia/2010/title-14/chapter-2/article-3/14-2-302/ )

            Without that part of the code, they *could not hire employees*. In fact, they couldn’t even hire management to give directives to!

            Unlike government elections owners may recall their boards at any time for any reason. Corporations are bound to bylaws – because the owners voluntarily agreed to them. Government has little responsibility beyond enforcing them – as all contracts.

            I’m not entirely sure what point you’re trying to make there, but there are plenty of things of ways a corporation is restricted in their bylaws. E.g., in their bylaws they must have a corporate agent and a business address, and limit the liability of directors. And there are things corporations are required to do, regardless of the bylaws. Like hold an annual meeting, and provide financial information to owners.

            I must point out they are only allowed to have bylaws ‘that [are] not inconsistent with law’. Likewise, corporate directives from the board have to comply with the law. Not in the sense that everyone ‘has to comply with the law’, I mean they are not legitimate corporate directives if they do not. (And if they do not comply with the law, *that* is when the corporate veil is pierced, because the person giving the directives is not correctly acting as an agent of the corporation.)

            The state offers limited liability protection in return for conforming to a small number of rules. That is actually a bargain. You are free to breach, but you lose the protection.

            No. The management is not ‘free to breach’ the law in return for merely losing their liability. Although that’s *sorta* how unlawful distribution is handled. (Although if you do that, you don’t magically lose limited liability in the future, you *right now* get sued over it. The situation is less ‘losing limited liability’ than ‘getting sued for a tort that limited liability will not shield you from’.)

            But there are plenty of ‘corporate rules’ that are crimes to violate. For example, *labor law*. Violating that is *criminal*. Here’s the relevant part Georgia law:

            (a) Any employer or owner who violates or fails or refuses to comply with any provision of this chapter within the time prescribed or any judgment or decree made by any court in connection with the provisions of this chapter for which no penalty has been otherwise provided shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished for each such offense by a fine of not less than $20.00 nor more than $200.00, by imprisonment not to exceed six months, or by both such fine and imprisonment. [‘This chapter’ includes things like mimimum wage and workers comp and unemployment insurance.]

            Now, if what you’re trying to say that, to avoid corporate law, people could simply *not form a corporation*, well, yeah. They could indeed choose not to do that. But they can’t just have their corporation start breaking laws, and, poof, it’s no longer a corporation. (And that wouldn’t particularly help with labor law.)

            Unions are corporations, Are union members prohibited from demanding that their boards represent them and advocate positions the members hold ?

            No. The law does not say they are prohibited, so they aren’t. (And, incidentally, union members could *demand* that all they want, just like I can buy Coke stock and show up at a shareholder meeting demanding they start selling cocaine. The question is if the *corporation* can advocate those positions, not if owners can ask them to advocate them.)

            The law, however, *could* prohibit unions from doing that. As I *explicitly* said, I *don’t* think the government should be restricting unions that way. That doesn’t mean I don’t think unions have any particular *rights* not to have that happen.

            I swear to God, it’s like people have have figured out I’m talking a liberal position, or perhaps even figured out that I’m a liberal, and are all like ‘That means we can do that to the unions!’, expecting me to wet my pants.

            Sadly, as I am *indeed* a liberal and not a libertarian who thinks ‘All bad things are forbidden, anything not forbidden is mandatory!’ I can, indeed, quite correctly hold the idea that the unions have no ‘right’ to free speech, or even *no right to exist* as an incorporated entity, and yet laws doing that would be very very stupid.

            In the modern world nearly every single thing we do in concert is done in a corporate form.

            Which is a very good reason to *not* restrict corporations ability to make speech, not really an argument that we *couldn’t* do that.

            And it’s certainly not a very good argument from giving corporations random exceptions to labor laws because ‘religious beliefs’ that they don’t have, any more than it would be a good idea to let them have exceptions to safety codes or waste disposal because of ‘religious beliefs’. Once you start *hiring people*, you have to follow the laws WRT *hiring people*. You don’t want to do that, feel free to form a corporation and just *not hire people*.

            Seriously, if you want to argue that corporations are such a fundamental aspect of society that restricting their speech would be unconstitutional, I can actually *understand* that argument. I don’t quite agree, but I understand, and, hell, I’ll accept it as a premise for this discussion.

            However, we are not talking about the ability of a corporation to produce speech, or religious teachings, or anything. We are talking about the ability of a corporation to not follow an aspect of labor law.

            Which is doubly stupid, because a) We only grant religious exceptions to the law based on the *personal belief* of the person holding it, and corporations have no personal beliefs, and b) it would basically render *all* labor law completely pointless.

            The fact that people (may) have to form corporations to get their message out, and thus there is, in some sense, a constitutional right for people to make such corporations, is a fine claim to make. The idea that such formed corporations have some ability to randomly ignore laws their owners don’t want them to follow is, however, utter nonsense.

          • John Say

            A corporation is a business exactly like any other. It is a collection of capitol, assets and liabilities, with revenues and expenses owned by a person or persons.

          • John Say

            Please do not tell me what I think. When i say owners i mean owners. boards and management are irrelevant to the specific issue here. Boards, management and employees are all employees of the corporation. Whatever authority and ability to act independently they have is given to them by actual owners.

          • DavidCheatham

            Please do not tell me what I think. When i say owners i mean owners. boards and management are irrelevant to the specific issue here. Boards, management and employees are all employees of the corporation. Whatever authority and ability to act independently they have is given to them by actual owners.

            Well, I’m sorry, but you’re just wrong. The law says otherwise. The authority of the corporation, and the ability to act as the corporation, is given *entirely* to the board of a corporation. I quote Georgia law ‘All corporate powers shall be exercised by or under the authority of, and the business and affairs of the corporation managed under the direction of, its board of directors’.

            The *only* power of control that of the owners of a corporation has to select a board. (And to accept or reject a few things the law lets them decide, like mergers or dissolutions.) Stockholders, aka, owners, do not have the right to issue directives making the corporation do *anything at all*.

            If I, via magic, manage to buy every single share of Coca-Cola tomorrow, I can’t tell them what to do, at least not directly. What I would have to do is vote in a new board of directors, which I could do at the annual meeting or possibly forcing a vote by petition of the stockholders. That is the *sole* power I have to change anything. (Of course, I could vote *myself* onto the board, along with a bunch of yes-men I vote off at the slightest disagreement.)

            This is not some sort of *opinion* of mine. And before you start trying to argue that, please google ‘stockholder rights’.

            Now, there are some private corporations where, by design, all the stockholders are *also* the entirety of the board. I am fairly certain that Hobby Lobby is such an organization. So the ‘owners’ can give orders…but that’s just because the owners are also the board.

          • John Say

            “Well, I’m sorry, but you’re just wrong. The law says otherwise”.

            I have no clue why I am supposed to accept you as an authority on what the law says. I have zero interest in debating law with you, or here. If you want to debate law take it somewhere like Volokh where there are people who actually know what they are talking about regarding the law.
            Even if you were right that would be irrelevant.
            This is not a legal blog. We are not debating the minutia of the law, but concepts, rights and values. The US constitution say that slaves count as 3/5 of a citizen – law in not a morally authoritiative argument.
            And finally again even if you are right. As you note owners select boards. Put differently Boards are at will employees. All you are talking about is a layered hierarchical structure. CEO’s do not decide what packing tape gets used.
            Further you misuse rights. Rights do not come from the state. The law does not determine them. A right exists even if the law says otherwise.
            As to googling things I have actually owned and managed several small corporations. I suspect I know more about actual corporate law than you do – as not grasping the law might land me in jail, including the fact that there are differences between publicly traded and private corporations as well as innumerable other distinctions. Not only do owners have rights – even minority owners have rights (meaning the one owning less).

            The fundamental question is one of rights and morality. In the event there are laws that are in conflict with rights – they are wrong and will likely be found unconstitutional.
            Employees from the receptionist through the board, have no moral or religious freedom argument with respect to the operation of a business.
            They are free to go elsewhere.
            While the business is the owners property. The moral burden of business choices that have moral/religious implications fall solely on them.
            In the unlikely instance that the law conflicts with that, the law is wrong.

            Fundimentally this is no different from a city ordinance requiring property owners to place crosses on their front yard – actually it is worse.

          • John Say

            States regulate people. How is the fact that state regulate corporations meaningful to this discussion ?
            While i would argue that much of this regulation is illegitimate. It exists and we are stuck with it.
            But the regulation does nto change who owns what nor that individuals have rights, and they do nto lose those rights acting with others. If some regulation purports differently it is illegitimate and should be struck down. That may not happen – we have lots and lots of bad laws all over the place. The fact that they exist and that we must obey them does not make them good. Nor does it change the gist of what I said before.
            If we can regulate away the rights of people in groups, we can regulate them away as individuals, and all rights mean nothing. Maybe you beleive that is the case. But I do not.

          • DavidCheatham

            If we can regulate away the rights of people in groups, we can regulate them away as individuals, and all rights mean nothing.

            Just repeating complete nonsense that I’ve already address doesn’t accomplish anything.

            A corporation is not, in any sense *at all*, a ‘group’ of people.

            A corporation is a legal fiction, whereas a group of people (specifically, the board, which I will keep pointing out until you understand this), is allowed to act in *very specific* manners under the law, with every single possibly action they can do (Such as hiring people, or selling goods and services) laid out by law.

            The entire thing, from start to end, is rules. It is a *board game*. No one is ‘restricting’ anyone’s rights at all. The government are making rules about *how to play the game*.

            If people do not want to be ‘restricted’, they are free to not play the game, or hell, simply do the actions they with to do *outside of the game*. They’re only playing the game(acting on behalf of the corporation) when they *say* they’re playing the game.

            When they *do* say they’re acting on behalf of the corporation, yet do something disallowed, it is entirely within the rights of the person running the game to say ‘Hey, you can’t do that in this game’, and take away some of their game money.

            You do not have constitutional rights to play a game however you wish.

          • John Say

            The fact that you think humans give up rights when they act in concert is what is disturbing.

            Yes you have already addressed that. And you can repeat the same fallacious arguments however many ways you wish. It changes nothing.

            A corporation is a legal fiction. That does not mean it does not exist. it means the law pretends one thing to avoid the complexities of what it knows is real. The fiction must fairly accurately represent the underlying reality.
            We call it “corporate personhood” – another legal fiction, because the fictional corporate person is a stand in for the real people who own the corporation.

            You seem to be under the delusion that “legal fiction” means legal falsehood. It more accurately means standin.
            Adoption is another example of a “legal fiction”
            Does adoption mean the children are false ? or have no rights ? Quite the opposite.

          • John Say

            Let us adopt your claim arguendo.
            Then all that HobbyLobby or Little Sisters of the Poor need do is dissolve the corporation and reform under a different legal arrangement say an LLP.
            Changing the legal minutia of their business structure does not alter the rights of the owners or the conflict of rights that exists here ? Would the left be happy if the resolution of this conflict was for every corporation that had a religious objection to paying for birth control or abortions merely changed the “legal fiction” it operated as ?

          • DavidCheatham

            Then all that HobbyLobby or Little Sisters of the Poor need do is dissolve the corporation and reform under a different legal arrangement say an LLP.

            Strictly speaking, Hobby Lobby cannot ‘dissolve the corporation’ and then do anything. Because once the corporation is dissolved, Hobby Lobby does not exist, and thus cannot act.

            More to the point, I’m not entirely sure what you’re trying to accomplish here. Yes, an LLP is directly operated by the partners, aka, the owners, instead of a board.

            But the fact corporations were operated by a board was not any part of my argument. If you recall, I mentioned that as an *aside*, correcting what I thought you’d merely misspoken. It’s you who turned that into an issue.

            The fact is, an LLP is *also* a fictional entity. There’s not really any change there.

            Meanwhile, if Hobby Lobby or Little Sisters of the Poor does not wish to follow labor laws, I rather suggest they *don’t employ people*, which would pretty immediately exempt them from labor law. (Or, alternately, they can just pay fines.)

            See, the thing is, *everyone* has to follow labor laws. Everyone. Even actual people. The whole point of me explaining why something is a fictional entity is not because ‘real people are exempt, it is under the constitution, people can sometimes get exemptions from the law from their own religious beliefs. In fact, this is what Hobby Lobby is trying to argue.

            But there is an actual constitutional test here. There have been a bunch of Supreme Court decisions in various ways, but all of them have said that to not be subject to a law, it has to be a real religious belief that you *personally* hold. (And a bunch of other stuff, but that’s the important thing here.)

            The thing is, *only real people can do this*. Fictional entities, regardless of tightly controlled by real people they are, cannot. Because *they have no religious beliefs*. They cannot have religious beliefs. They are not even sentient.

            You’re trying to make it where the individual operators of the business can opt out. No. Just no. If the operators have a religious objection to doing something, all that could *possibly* mean is that *they don’t have to do it*.(1)

            But *the business still does have to do it*, at least if required by law. The only possible outcome here is that the business needs to find someone who *doesn’t* object to contraceptives to sign the checks to the insurance company.

            1) And note the ‘possibly’ in that sentence. This is actually a fairly long shot *even if* we were talking about human beings, especially since the court considers ‘directness’. I.e., conscientious objectors can get out of the draft, but they still have to pay taxes to pay for a war. Likewise, a person could probably refuse to directly distribute contraceptives if that was required by the government, but can’t really refuse to pay insurance that would cover them. (And Hobby Lobby, holding no religious beliefs, can’t do either.)

          • John Say

            You really are a total wingnut.

            An LLP is not a “fictional entity either.

            But lets this make this really easy for you.

            The little sisters of the poor dissolves. Which by the way corporations can do. They must pay off all their creditors and then the owners are free to do as they please with the assets – which are theirs – pretty much as they were before they dissolved but we are just bypassing your lunacy. All the individual owners give their portion to Sister Mary Beth. Who now is the sole owner of Little Sisters of the Poor. Sister Mary Beth re-hires all the prior workers and resumes as Sister Mary Beth DBA Little Sisters of the Poor.

            I believe the entire case goes away because the PPACA exempts businesses under certain sizes and non-corporate entities from some provisions – primarily because those provisions are rights violations that they knew they would lose if they tired to apply.

            But lets say that is not the case and you are idiotic enough to procede. There is no right to be employed and government has no power to force an individual owner to violate their religious beliefs. Laws that do so are unconstitutional on their face which is the hardest standard to meet. But this would clearly meet it.

            Whether this is employment law or toothpaste regulation is irrelevant. Except very narrow circumstances (should be none) law does not trump enumerated rights.

            For the record the “fine” in this case is $2.5M which is 1/3 of all the assets of LSP – which opens an entirely different constitutional attack.

            If the government passed a law requiring corporations to circumcise all their employees would that be valid ?

            You do not seem to grasp that you can make this illegal 1000 times over in 20thousand different ways. If it abridges a constitutional right it is nearly always invalid.

            If you beleive that somehow employment trumps religiuos freedom read

            Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission

            In Cutter v. Wilkinson the court found that wiccans and satanists in prision could nto be denied bizarre requirements for the excersise of their religion.

            You are correct, there are many freedom of religious cases very few go even close to your way.
            You could ignore CU entirely.
            This has been even more the case since passing the RFRA. I don’t understand why as the RFRA is a law that says The freedom of religion in the constitution is still there.

          • John Say

            You can not seem to get over this fixation with law.

            Supreme court cases involving rights ALWAYS have a law abridging a right. That a law or many laws exist is irrelevant. You can not argue from the existance of a law to the destruction of a right. You can not craft a law to make a right disappear. To the extent the supreme court will look at the law at all, they will be concerned at its necescity, and whether there was other non-infringing ways to accomplish the same purpose.
            You are already in trouble on both counts.
            Worse still you have more than a conflict between a law and a right you have a conflict between one law on one side and a law and a right on the other (RFRA).
            RFRA is as legitimate as PPACA, if not more so it has been arround longer. There is of course some wierdness here – as SCOTUS has declare the RFRA unconsititutional – only SCOTUS may decide what the constitution means. But has subsequently used it repeatedly with respect to federal laws – congress does have the right to restrict the federal government. regardless it will apply in this case.

            This will be particularly significant in the LSP case, because PPACA is not only infringing on their beliefs regarding contraception, but also their practices.

            The administration should have conceded the LSP case because it greatly harms their HobbyLobby case.

            HobbyLobby BTW is one of the largest privately held corporations in the country, which is going to trip you up with SCOTUS. They are not traded publicly and they are not subject to many of the laws that you think are so compelling. There ownership, board and management is congruent vitiating several more of your arguments, Either an owner a board member or a managers religious freedom is being infringed on. Given the choices you should pick owner as the alternatives are worse for you.
            Further they where their religious beliefs on their sleaves. They are not a craft store, they are a christian crafts store. They operate their business according to their beliefs.

          • John Say

            The administration proposed waiver compromise is one only a liberal could believe would work.
            First you can play games all you want, hobby lobby and the LSP are paying for contraception and abortions no matter who signs the check and no matter how many layers of lets pretend you put in the way.
            You have an even worse problem with LSP as they are essentially self insured, so you have a religious organization doing religious work, providing its health insurance through a related religious organization and you think putting their hands over their eyes and signing a for will work ?

          • John Say

            Clearly you have little understanding of religious beleifs.

            Lets put this in the context of say the West Point honor code.

            “A cadet will not lie cheat of steal, nor tolerate those who do”

            You seem fixated on money. People holding strong religious values beleive they are committing a sin if they are involved in any way with something that is a sin.
            The mere fact that LSP employees are getting contraception because they are employed by LSP is enough. Actually even if no LSP employee ever recevived contraception as part of their health insurance, the fact that health insurance provided as a result of LSP employment MIGHT result in contraception would be enough. Even if you eliminated the might and contraception was NEVER going to occur a policy that included it as an identified benefit even if it was never ever going to be used would still be an endorsement of contraception by LSP – the cadets code equivalent of tolerating those who lie cheat and steal.

          • John Say

            I usually avoid making legal or constitutional arguments.
            Aside from the fact that this is not a legal or constitutional blog, such arguments are always in conflict with values.

            You are making all kinds of legal claims regarding corporate persons, the law and the constitution.
            If we are arguing law and constitutional decisions. CU is it. It is absolute. You may think it was decided wrongly, but without resorting to a moral argument or a supra constitutional argument you are wrong. Like it or not the supreme court has spoken. From the perspective you are arguing they are the final authority – unless you succeed in amending the constitution or persuading a future court to overrule.
            From a moral, ethical, ideological or philosophical perspective the law or supreme court decisions have little meaning. Something is the state of the law or the current meaning of the constitution because of a SCOTUS decision. But it is not right or wrong.

            Your entire rant about the law and corporations and ….
            is meaningless if SCOTUS rules against you.
            The constitution and law inarguably mean what they say if your only standard is law or government.

            Absent accepting some underlying philosophy or ideology, law and supreme court decisions are nothing more than random darts on a dart board. They may control behavior but they do not answer questions about right or wrong, they might as well be random.

            I suspect you have strong beliefs that are different from mine. Your beleif is not the law is right whatever it says and we must obey it. You legal argument is rooted in some belief that the laws you are offering are right – as in morally right, not merely the law.

            I think you are wrong on both counts, regardless, I am interested in arguments about the moral, philosophical, ethical, and ideological aspects of how things should be.

            I do not even want to win an argument with you over the arcane minutia of the law. I care about what is right, not what is law.

          • John Say

            Can government regulate pieces of paper ? Can it tax them, or jail them ? How about Trees, or streams ? the sunrise ? The domain of government is the actions of humans.

            In a board game, if your fictional character is killed do you bleed ? If this is just a fictional board game – then not only are the owners not real and without rights, but the board members, the CEO and the employees.

          • John Say

            Going at your argument from a different direction.

            If owners are fictitions and all rights belong to the board.

            Then isn’t the board members religious freedom being infringed on ?

            “Man is an animal that makes bargains: no other animal does this – no dog exchanges bones with another.”

            Adam Smith.

            Corporations are merely on arrangement human use to engage in exchange – something only humans do.
            You are trying to pretend that an essential human characteristic is not human.

          • John Say

            You also are under some delusion that governments are gods and humans their slaves.
            Governments are a creation of humans – not the other way arround.

          • John Say

            Rules are always or nearly always restrictions on rights.
            The relevant question is whether they are legitimate restricitions. “papering” over the conflict does not resolve it.

          • John Say

            Are you even listening to yourself ?
            I would strongly suggest rereading your own arguments.
            This debate was interesting before you went from corporate fiction to fictional worlds and role playing games.

            But let me try to do something with your game analogy.
            There is no real property in games. No ownership. Not of land, not of real things, not even of yourself. The characters in a game atbest are standins for your ego – not you. As such they have no rights.
            The same is true of employees in the real world.
            They have no property interest in the business they work for. They have a right to expect the whatever agreement they have to be honored – nothing more. That usually means to be paid for the work they have done.
            They have no right to the job. The job is a real fiction – as opposed to corporate personhood. It exists solely because the own says it exists. The business is their real property. In your game analogy – the owner is the game master. Government is a creation of the people – the owner and the employees. It too is not real. It too is a legal fiction. It exists solely by virtue of our consent.

          • John Say

            We are having a theoretical and philosophical discussion of rights with respect to individuals and groups and you wish to fixate on laws and regulations.

            Even the most fundimental principles of our society are being violated by some law or regulation somewhere.
            We are not perfect, our laws are not perfect.

            The existance of a law or regulation in apparent conflict with rights, principles or philosophy does nto disprove the rights, principles of philosophy. Even alot of them does nothing more than demonstrate that in atleast some area some portion of government either disagrees or is ignorant of the conflict.

            I will cede to you that if the measure is government laws and regulations no rights, no principles, are consistent with them. The laws and regulations are not even consistent with themselves. If the supreme authority is existing law and regulation, the federal and all state constitutions are moot. Somewhere all aspects conflict with law and regulation.

          • DavidCheatham

            We are having a theoretical and philosophical discussion of rights with respect to individuals and groups and you wish to fixate on laws and regulations.

            Uh, no, *you* keep trying to make this discussion fairly abstract, and I have to keep pointing out you are *factually wrong* about how you are abstracting things.

            Corporations are not groups.

            Corporate action is not human action. Corporations are not operated by their owners, and in fact owners have no powers to operate them.

            ‘Restricting’ corporations restricts not a single human being from doing anything. And in fact the government doesn’t have to ‘restrict’ corporations, considering that literally every single possible action of theirs is *created* by law.

            When people say a corporation is a legal fiction, they *mean* that. It an entity described in imagination, that we imagine does things, because specific people *choose* to say the actions they just took are actually corporate action.

            You want to talk theoretical and philosophical , a corporation is not a group, or even an analogy of a group. The closest analogy of a corporation is a co-authored fictional story. Or possibly a board game.

            No, actually, the closest analogy? A LARP. It is a bunch of people running around following specific rules while pretending to be other, fictional, people, except here they’re all pretending to be the *same* fictional person. All directed by a few people who run around making sure the rules are followed.

            Corporation are just a system of rules within rules that the government agrees to respect, but there is not ‘there’ there. There is nothing underneath. You strip away the rules and regulations and you *don’t have any corporations*. (Whereas, you’ll notice, if you do that to a person, you end up with a human being.)

            You want to have an abstract discussion about how people have rights *in groups*, you feel free to have that. It might actually be interesting.

            And it has *nothing* to do with corporate regulations. If you think the LARP gamemaster is infringing on your rights…STOP LARPING.

          • John Say

            Mr. Cheatham;
            This blog is “Bleeding Hearts Libertarians” not, “the minutea of corporate law blog”. The issue being debated – both here and at SCOTUS is the conflict between government power and religious freedom. As I noted in the prior rebutal. In the highly unlikely event you are actually right about any of the corporate minutea. SCOTUS is unlikely to pay any heed, and they should not. You can not paper over conflicts between rights and government power with arcane minutea. Your entire claim essentially disproves itself.
            If you are right about corporate law, then the law is wrong. But you have bought this leftwing nonsense about corporations and person-hood. the purpose of the “legal fiction” is to have the “corporate person” stand in for the aggregate rights of owners. Those rights exist with or without the legal simplification.
            SCOTUS grasped that in CU. Though I was unsure how they were going to decide that case, there was ZERO doubt they were going to buy the “corporations are not people we can do what we please to them”.
            And it is not going to go over any better the second time round. Aside from the fact that it is wrong, it also flies in the face of 150 years of precident.
            If the administration is stupid enough to make the arguments you are making they are toast.
            I suspect they are toast anyway.

          • DavidCheatham

            We have clearly reached the point where near the law or the fact are on your side, and you are just pounding the table.

            I’m not going to participate in your philosophical discussion about how the government should treat some sort of hypothetical groups of people that you assert corporations should be. That’s *not* what corporations currently are under the law, that’s not how they are empowered to act by the law, and nothing you are talking about has anything to do with the actual world we live in.

          • John Say

            I am not the one that has tried to make an analogy between LARP’s and the real world.

            I agree this is fruitless,

            Reread your own arguments – is Little Sisters of the Poor a peice of paper ? A game ? Unreal ? Hypothetical ?
            I think there are a bunch of real live nuns that would take issue with that characterization. I think more than five justices of the supreme court are going to agree that a law forcing Little Sisters of the Poor to offer birth control requires real live nuns to violate their religious beliefs.

            The little sisters of the poor are real people.
            Their religious beleifs are real – whether you or I agree with them. If those nuns do not own LSP then it does not exist (and therefore does not have to comply with the law)
            The nuns are individuals with rights.
            They are obviously acting as a group for a shared purpose. Doing so in no way surrendered their rights.
            calling them a peice of paper changes nothing.
            If the law interferes with their religious rights – whether that law is PPACA or some other aspect of state corporate law. It is clearly the law that is wrong.
            Nearly everything I have said above is real, not hypothetical.

            In the hypothetical world. I do nto beleive specifically in constitutional rights, or religious freedom.
            I beleive in government that is limited such that it intrudes on only one of our rights – the right to initiate violence against others. In that I am in the company of Locke and Jefferson and many others. Specific enumerated rights are unnecescary if governments powers are properly limited.

            But in the real world of the current courts your argument is a loser. SCOTUS is even less likely to accept the argument that corporations as legally fictitious persons permits government to abridge the rights of real humans than it was in CU.
            I am not sure the left could have won CU with any argument. But the corporations are not people and have no rights was a dead bang loser. It was an unbeleivable example of the left buying into its own delusions.

            It was as your arguments here an example of the left deceiving itself into believing that it can make rights disappear using legal and language tricks.

          • John Say

            You told us before that corporations are nothing more than peices of paper.
            I have yet to see paper act.
            Regardless, govenrment has no authority over nature, or paper for that matter. If corporate acts are not human acts they are outside the powers of government.
            We all grasp that is idiocy. You just cant grasp why.
            i am libertarian, and not the bleeding heart variety.
            I often take rigid – even extreme positions.
            But you are making me look moderate.
            Your argument is just nuts. It is selfcontradictory.

            I will concede that the law, legislators and even judges – and certainly much of the left get confused by all of this and try to pretend the things you claim. There are probably even laws in some places maybe most that are rooted in the same presumptions as you are voicing.
            There are plenty of bad laws and laws with bogus premises. Even the left tells me that all the time.

            So again – even if you are right (about corporations and the law) you are still wrong. You are still going to be in front of SCOTUS whining about laws and that corporate personhood is a fiction – meaning they have no rights, rather than the legal fiction is a standin for the agregate rights of the owners. And SCOTUS is nearly certain to blow you off – because you are still wrong.

          • John Say

            God help us you are trying to equate the real world to live action role playing games!

            LARP’s are played in alternate universes. You can make whatever rules you which in a hypothetical universe.
            There is no reality, no rights – unless you hypothetcially decide there are.

            All you analogy means is that you think fiction means false, or unreal. In this case it means simplification or stand in.
            It is a device to avoid to complexity involved with the reality that corporations are groups of people acting in concert.
            No court wants the complexity of analysing the individual rights of potentially millions of shareholders.

          • John Say

            Completely ignoring whether or not the laws the state is trying to impose are legitimate in the first place, how is it that the state imposing laws or criminalizing something has any bearing on our argument ?
            The state makes laws regarding individuals – some good some bad. The state can make laws regarding groups of individuals. I am not arguing the state may not make laws. I am arguing that individuals acting in groups still have the same rights they had as individuals.
            Government is inconsistent – what is new. Does the inconsistency of government vitiate the rights of individuals ?

            In any argument where you response is “the law xxx” whether you are write or wrong you are completely off point. You are essentially engaging in an inductive proof that is fallacious. Arguing inductively from the law, I can obliterate probably every line of the constitution.
            Law and regulation are too big, too inconsistent, too poorly thought out to form the basis of an inductive proof.

            Regardless, the normal judical review process is to resolve whether regulations conform to laws and laws conform to rights, and constitutions, not the other direction.

          • John Say

            While you totally mis-characterized libertarians.
            You confess to being a liberal and to the extent that liberalism is consistent (pretty much not at all) your arguments are consistent with liberalism.

            As liberalism operates under the impossible pretense that rights come from the state rather than are secured by the state, we are never going to agree.

            In a liberal framework – you are always going to win – because there really is no such thing as a right. The whim of the state with some mushy connection to the will of the majority as reflected in the current thought of their elite protectors.

            If you accept that rights exist independently of the states whim – you are not going to remain a liberal long. And if you dont the best I can do is direct you to centuries of philosophical argument – as well as history that demonstrates that fails. Start with the text of the declaration of independence. It is not the word of god. But it is the theory of government this nation was once rooted in.

            You appear to accept that many things that are as you like them need not be as you like them according to your own theory of government. So what prevents conservatives from taking over and changing all of those things ? Or facists ? Or communists ? If you have no external basis for rights, what prevents whatever group you preceive as most evil most antithetical to your values from taking over and subjugating you ? Worse still by your own scheme of values you are compelled to accept. You can not even argue a right of the majority to change this. Rights are the gifts of government. how is the right of the majority supra government ? If fascists took over by force they are the government they are defacto legitimate, and they decide rights.

          • John Say

            For the record corporations are not a fundimental element of society. In fact my argument is they are inconsequential.
            Rights belong to individuals. Individuals retain those right acting with others.
            In the instant conflict if Little Sisters of the Poor was a business owned solely by say a US cardinal. This conflict would disapear. the state can not abrogate the religious freedom rights of the cardinal even acting as owner of a business/charity/whatever. I am pretty sure PPACA waived this issue for businesses that are not corporations.

            My argument is not that corporations are special.
            But that they are NOT. that the specific arrangement we chose for associating for a common purpose does not alter our rights.

            i will also note it is not the religious freedom of the employees that is at issue here. Nor the managers directors, or boards. It is only that of the owners. all the rest are free to go elsewhere, if they feel owners are infringing on them.

            What I see as the problem here is that you and government are fixating on the corporate form – a legal fiction, a convenience, a stand in so that we do not always have to address the complexities that thousands of owners might introduce.

          • DavidCheatham

            In the instant conflict if Little Sisters of the Poor was a business owned solely by say a US cardinal. This conflict would disapear. the state can not abrogate the religious freedom rights of the cardinal even acting as owner of a business/charity/whatever. I am pretty sure PPACA waived this issue for businesses that are not corporations.

            Um, if you want to talk about the *actual* Little Sisters of the Poor, instead of those lofty abstract philosophical points you keep trying to move discussion to…

            …you probably should realize they *don’t* have to pay for contraceptive insurances. They are actually exempt. When they sigh a waiver, they get to buy insurance without contraceptives, and the Federal government will step in and pay for a rider on their insurance covering contraceptives.

            What *they* are whining about is the fact they have to sign the waiver saying they are exempt. Because they are idiotically asserting that by signing such a thing, *they* may not be paying for contraceptives, but they are authorizing a third party to pay for them.

            Which is why, incidentally, their defeat in court is pretty much guaranteed. That is possibly the dumbest legal theory I’ve ever heard. They are trying to argue that having to sign some paperwork agreeing they won’t do something is actually ‘authorizing’ a third party to pay another third party to possibly provide contraceptives to yet another third party. Which somehow infringes on their rights.

            This is insane. Sorry, if you morally object to something, and society constructs a method for you to opt out, you don’t get to stand there and *refuse to sign a piece of paper saying you won’t do it*, because if you sign it, some other guy will do it for you.

            It’s Hobby Lobby that has a *somewhat* reasonable case, by which I mean the courts might actually (wrongly) agree with them. Their argument is just wrong, not completely stupid.

            But LSP is going to be laughed out of court, and I have no idea why Sotomayor issued a stay. (Maybe this was some political thing…from what I understand, that sort of thing is assigned randomly, and she didn’t want to look like she was *unfairly* dismissing them, so issued a stay even though she knew the case was bunk.)

            ‘We’re drafting a thousand people this week.’ ‘I’m a conscientious objector’ ‘Fair enough, sign this document and you can go.’ ‘I won’t sign, if I sign you will just draft someone else.’ ‘If you don’t sign, you *are* drafted.’ ‘I’m filing a Federal lawsuit!’

          • John Say

            You still do not grasp that if there is a conflict with individual rights – the law is irrelevant. The hypotheticals are not so hypothetical, and demonstrate the irrationality of your position. LSP as a charitable corp must offer insurance with contraceptive coverage. But LSP as a chartity owned by a single individual does not ?

            There are other complexities in LSP – they are essentially self insured. Passing this off to a third party is not so easy.

            Beyond that you seem to grasp nothing about morality.
            These are nuns. They do not beleive they can be in anyway complicit in something they believe is wrong.
            Only a progressive would think you can engage in a legal or rhetorical trick to get arround a moral principle.

            And again and again and again. Though you are wrong about the law. This is not a legal blog. I am sure there is an LSP post on a place like Volokh where you can debate the minutia of legal details – and where they will eviscerate you far better than I can.

            BHL is focused on those abstract philosophical points you eschew. Further, you are nearly certain to lose a legal argument if you lose the underlying abstract philosophical one – particularly at SCOTUS.

    • Kevin Vallier

      Are you prepared to say the same thing about all religious non-profits? I know you’re on this anti-corporate kick ever since you’ve started commenting here, but that’s really not the main issue.

      • DavidCheatham

        I’m not on an anti-corporate kick per se. I have no problems with corporations. They are fairly useful fictions to organize capital and production. I often wish they were different sizes and owned by different people, and I often find the short-sightedness of American corporations amazing, but that’s no more ‘anti-corporate’ than complaining that they don’t pave the pothole in front of my house and yet built a highway to somewhere else is ‘anti-road’.
        In fact, and I know this might blow people’s mind, but I am in fact one of the private owners of a corporation. Craaaazy.
        But I do have a problem with the idea that fictional entities can have *any rights whatsoever*.(1)
        And, yes, I’m prepared to say the same about religious non-profits. Or, as I said, actual churches.
        If an entity created by law employs people, that entity must follow all laws WRT employing people. Duh-doy.
        We sometimes allow exceptions of the law for religious beliefs in this country, and that’s reasonable. If someone wants to assert that peyote is a sacrament in their religion, and thus they should have religious freedom to use it as that, I think that’s a sound constitutional argument. (Not that I think drug laws particularly make sense in the first place.)
        But entities created by law and operated by law do not have religious beliefs. Not even entities created *specifically with a religious mission*. They do not get exceptions, because they literally cannot have beliefs. They don’t have *minds*. A *dog* has more religious beliefs than a corporation.
        Now, me saying ‘follow all laws WRT employment’ is a bit confusing. Right now, under the law, churches can opt out of contraceptive-covering insurance. I don’t actually agree with that law, but it is a law, so whatever. (I can barely, vaguely, see an argument for letting churches discriminate in their hiring on _religious_ grounds. And that’s about all I’d even want to allow, and it’s pushing it. And that’s not based on some constitutional argument.)
        But the law, as is, does not extend to non-church non-profits, or for-profit corporations. And, like I said, there’s not any constitutional grounds there.
        1) There are the rights of the *owners* to not have the government seize their property by unlawfully taking the corporation away. But the key word there is ‘unlawfully’. Requiring all corporations to purchase and supply something is not ‘unlawful seizure’ of corporate assets…it is, in fact, the *law*.

  • Mark Rothschild

    Vallier’s article could only have been written by a liberal
    mired deep in the intellectual morass of interest group/identity politics.

    Liberals like Vallier see politics as a struggle between
    interest groups competing for government resources (or exemptions or one kind
    or another).

    Their view is that the task of political analysis is to determine
    the winners or losers in that contest. So, in this case the author picks the
    church and the NYT picks the government.

    Libertarians see things differently. We view health care as
    an individual decision and consider that when it is subsidized or mandated by
    the government policy disputes like this are inevitable.

    Villier’s position creates a carve-out for “religion” in an otherwise
    totalitarian system of pervasive government meddling. These ostensible “policy
    disputes” are really just squabbling over government resources made inevitable
    by the redistributive state.

    • Kevin Vallier

      You are confused.

  • It seems like the NYT’s main point was that being required to fill out a form and opt out of a program is not a substantial burden to religious liberty for RFRA purposes, not that religious non-profits being made to buy contraceptives isn’t government overreach. Their whole point is that they *aren’t* being made to buy contraceptives, they can opt out with little effort.

    Obviously the “and THE COMPANIES are the real threats” sentence was dumb. But the “the government isn’t a threat” bit makes sense in the context of their argument.

    I’d add that It strikes me as weird to believe that the employee-employer relationship is one of perfect liberty and rational arms-length bargaining but to think that having to opt out of a program imposes unconscionable costs. Sort of a Coase-for-me-but-not-for-thee thing.

    As an aside, The test for granting a stay is, I believe, a balance between the harms to both parties, the likelihood that the appellant will prevail at trial, and the public interest. It is not whether “something is seriously wrong with what the Feds are doing.”

    • Herb

      “that being required to fill out a form and opt out of a program is not a
      substantial burden to religious liberty for RFRA purposes”

      Exactly. The Little Sisters are about to argue in court that the accommodation (ie, the opt-out form) exists but isn’t good enough. I don’t think that argument will prevail.

      Moving this to a slightly different but similar context, it seems to me that granting a religious person “conscientious objector” status and exempting them from military service is a whole lot different than dissolving the entire military.

      And hate to say it, but the folks who take the “religious freedom” angle on this issue are more interested in getting rid of the mandate altogether than they are in preserving the religious freedom of conscientious objectors.

    • genemarsh

      I don’t think anyone here understands that the nuns only have to file a certification of religious objection to be able to buy insurance coverage that does not provide contraception.

      Once they opt out the government can pay the insurance company to
      provide the contraception if the employee so desires it.

      Marty Lederman compares this to the law that allows a religious pharmacist to object to dispensing certain drugs, in which case a non-objecting pharmacist may step in and complete the transaction.

      According to the nuns (and this slew of strangely rankled libertarians) “the first pharmacist could object to the accommodation–and insist that customers not receive the drug at all–because its refusal to dispense would “trigger,” or “authorize,” the second pharmacist to commit a morally objectionable act.'”

      • Herb

        I see that Marty Lederman clued into the “conscientious objector” angle. From the Balkinization post referenced above:

        “Or
        consider a religious conscientious objector to war: Because his
        refusal to fight means that some other young person will take his place
        to kill and and be killed, does that mean that he has a valid religious
        objection to the continuation of the war itself (or at least to the
        drafting and deployment of any further troops)?”

  • Theresa Klein

    If progressives were really interested in increasing employees liberty, they would advocate banning compensation in the form of health insurance entirely. Compensating employees with health insurance forces employees to spend their money on health care. You can’t spend health insurance on anything else. You can’t sell it and spend the money on something else.

    Progressives are ALL IN FAVOR of restricting employees liberty, they just want to be the ones in control. They want to force people to spend their money on health care, and specifically on the kinds of health care they prefer people spend money on. I.e. the things that are on the “essential benefits” list, preventive care. Nevermind the 50% tax on being a smoker.

    The ACA restricts employees liberty in all sorts of ways. It’s disingenuous and hypocritical to complain that employers deciding what’s in the health plan restricts employees liberty, when in the very law that passed this, there are already all sort of restrictions on what must be covered by the health plan.

    • Herb

      “If progressives were really interested in increasing employees liberty,
      they would advocate banning compensation in the form of health insurance
      entirely.”

      Well, that ship has sailed….

      Not only would this idea be even more disruptive and radical than the ACA that was passed, how would such a ban provide more liberty than a contraceptive mandate?

      Employers negotiate a group plan for their healthcare needs. That means a group plan saves employers more money than cutting checks to employees so they can buy into the individual market.

      But you’d say NO to all that out of some kind of misplaced concern for “liberty?”

      “They want to force people to spend their money on health care”

      Actually, Theresa, it’s reality that forces people to spend their money on health care, not paternalistic, statist Progressives.

      • Theresa Klein

        how would such a ban provide more liberty than a contraceptive mandate?

        By your own logic, the employee would be free to spend his compensation on anything. Not just healthcare and not just the things covered by the employer-based health plan.

        If not covering contraception is a restriction on the employee’s liberty, than ANYTHING not covered by the employer based plan is also a restriction on the employee’s liberty. And since every employer-based health plan, by it’s nature, involves making choices about what to cover or not that employee cannot control, then ALL employer-based health plans restrict employee’s liberty.

        So, if you actually believe what you claim to believe about the contraception mandate, then you should be in favor of banning employer-based health plans. Let employees spend their compensation how they want.

        Now note that I personally, am not endorsing such a ban. I am saying that YOUR logic would compell you to support such a ban.

        Personally, I think employers and employees should be free to negotiate whatever compensation they prefer between themselves. if you don’t like what kind of health plan your employer offers, work for someone else.

        Actually, Theresa, it’s reality that forces people to spend their money on health care, not paternalistic, statist Progressives.
        Paternalistic, statist progressives force you to spend your money on their preferred kinds of healthcare (that’s what the essential benefits list is), and if you are lucky enough not to need it, they force you to spend it on other people’s healthcare (that’s what community rating is).

    • Farstrider

      “If progressives were really interested in increasing employees liberty, they would advocate banning compensation in the form of health insurance entirely.”

      A lot of progressives DO support this notion. It’s called single payer. It’s non-progressives who typically oppose single payer.

      • Theresa Klein

        Because taxing employees and using the money to pay for healthcare via single payer isn’t a restriction on the employees liberty?
        Clearly, the first thing that jumps into a progressive mind when confronted with their own disingenuous bullshit about religious liberty, is to try to figure out how ELSE they can force people to spend money on healthcare.
        They aren’t actually in favor of letting employees spend their compensation on what they want after all.

        • Farstrider

          Look, either make an argument you believe in or shut up. You said that progressives are the cause of employer provided insurance and/or the employer mandate. I proved this statement false. Caught in a lie, you respond with a different (but equally incorrect), not to mention profane, attack.
          You are not adding value to this discussion. Please go troll somewhere else.

          • Theresa Klein

            You said that progressives are the cause of employer provided insurance and/or the employer mandate.

            To the extent that progressive support the ACA, they are indeed the cause of the employer mandate.

            To the extent they support single payer, they are still in favor of restricting employee’s liberty.

            Either way, their moaning about how not covering contraception would restrict liberty is hypocritical garbage. They are all for restricting liberty by forcing employees to spend on on their own moral priorities – health care. How is forcing people to pay for health care any less a restriction on liberty than not paying for someone elses contraception? How is that any less imposing your own moral values upon other people?

  • Theresa Klein

    Here’s another screwed up thing about the arguments in favor of the contraception mandate.
    Let’s suppose that the government didn’t mandate that contraception be covered. Then the employer would be completely free to cover it or not, just like anything else that is covered or not in the health plan that the employer selects.
    And, according to the mandate’s supporters, not covering that thing would be no more a violation of anyone’s liberty than anything else not covered by the health plan.
    Thus, the employer is only violating the employees religious freedom IF the employer is doing it because of a religious objection AND if it is mandated by law.
    This turns freedom of religion precisely on it’s head. I’m violating your liberty if I am refusing to perform a mandated action out of my own religious conscience. But if I don’t perform THE SAME ACTION by voluntary choice for some non-religious motive, I’m not. It’s a perfectly acceptable action, precisely until the moment that I am motivated by a religious objection under government compulsion. It’s not a violation of your religious freedom, until the moment that I am being coerced by the state and have a religious objection to it.

  • Theresa Klein

    Isn’t forced purchasing a health insurance a restriction on the employees liberty in the first place? Isn’t forced purchasing of health insurance a way of imposing ones political beliefs on employees?
    Progressives think that it’s a moral imperative to prove other people with health care, and to this end, they have decided to require everyone to buy community-rated health insurance, which effectively coerces people to pay for other people’s health care. They have decided which benefits are mandatory and which are not.
    How is that, morally, any different tham employers making decisions about what is and is not covered by the health plan they buy for their employees? If employers NOT covering contraception is a restriction on liberty, how is mandatory coverage of maternity for post-menopausal women not a restriction on liberty?
    How are progressives NOT imposing THEIR morals on employees by forcing people to spend their compensation on healthcare, including maternity coverage?
    What YOUR morals are GOOD and CORRECT, therefore it’s OKAY to shove them down other people’s throats? Is that it? What gives you the right to impose YOUR morals on employees any more than employers?

    • genemarsh

      Please google “little sisters” + “religious exemption”.

  • good_in_theory

    “The brief article criticizes Federal District Court justice Brian Cogan for exempting somereligious non-profits (not Hobby Lobby) from having to notify insurance administrators that they object to contraception coverage. I won’t address this issue, though it is considerably more complicated than the NYT lets on.”

    Insofar as this is actually what the NYT article is about, rather than the throwaway polemical boilerplate at the end, it would be interesting to know how this is actually more complicated than the NYT lets on.

    Because there really doesn’t seem to be anything at all complicated about it. In order to qualify for the exemption, the nuns have to file a form. They object to filing the form, because, I guess, it enables others to compensate for the legal mandate they don’t want to fulfill themselves. The parties left over holding the ball on filling the mandate (insurers, individuals) have standing to complain. I don’t see any good reason why the nuns do.

  • reason60

    I think it is interesting that this issue revolves around a Catholic organization. Scanning the comments below, there is a poverty of language in these discussion that makes it impossible to reach a satisfying or persuasive view of human relationships. I think Catholic social teaching can provide a deeper and broader dimension to the discussion.

    The comments all revolve around rights or liberty, as if there were no other dimension to the human person that matter. Yet in Catholic social teaching, humans have rights which must not be violated, and they also have dignity, which also must not be violated.
    Humans have aspirations to self-actualization, and also aspirations to community, fellowship, transcendance and meaning. These too, must be respected.

    In this broader, more expansive view of the human person, liberty and rights are only tools to a larger goal, not goals in themselves.