The weirdest part about the hysterical abuse being visited on Obama and Pelosi by a minority of lay Catholics (the blog i just linked to is by a male high school student who is righteously offended that the women who are employed by his Catholic high school will be allowed to get contraception as part of their employee healthcare plan)  is that in order to argue that this healthcare mandate is an infringement of religious freedom, you have to argue that institutions are ensouled.

I’m aware that in the US legally corporations are “persons”, and their money is regarded legally as a form of speech.

But I was not aware that the Catholic Church had decided that these legal “persons” were regarded as human persons according to Catholic doctrine. Yet apparently, or so goes the Catholic objections to Catholic institutions providing birth control as part of their health plan, they are now. How is this accomplished? Where are they baptised? Who offers them their first Communion? Can a corporation now be excommunicated? Could a corporation be ordained? Since a corporation can be immortal, how far could such a person rise in the Church hierarchy in their indefinitely-prolonged lifetime? Would we ever see Pope Disney or McPope?

Thanks for this bit of interesting information. I didn’t think Scalia had ever done anything that would actually help people in his entire life.

Why haven’t the Catholic Bishops been stripped of their 501c3 status? They are a lobbying group, not a religion and not a charity. And their misogynist outrage is just a naked political ploy to hurt Obama. They are hoping that other ancient culture warriors like themselves will adopt this as their outrage du jour and vote for whoever ends up being the last republican in the clown car.

But the jokes on them because their behavior coupled with the teabagger congress, republican legislatures around the country and the Komen debacle has awakened the sleeping giant—millenials. I kept wondering what it would take to get younger women more engaged in the issue of reproductive rights and now we know.

Have no fear, Jesse. 

Scalia has the finest legal mind in generations, with a capacity for justifying whatever outcome he wants with incredible legal twists and turns.  Anyone who could willingly support (and no doubt contribute to) Bush v. Gore has amply proven his conservative/reactionary bona fides.

I have no doubt, given a chance, he’ll come up with some elaborate reasoning (most likely involving “original intent” in some way) that shoots down the contraceptive requirement, while somehow preserving judgments like the one Amanda brought up regarding the NY bus company and the Hasidic Jews and their demand that women be forced to sit in the back.  He can walk the legal tightrope like no other.

This will somehow prove that he’s no judicial activist but only (fairly and impartially) “calls balls and strikes” just like Chief Justice Roberts claimed he would do…

Obama on the “right” side in this? Oh, you wish.

The White House has been signaling a “compromise” is in the works:

http://digbysblog.blogspot.com/2012/02/compromising-with-borgias.html

It makes perfect sense, but unfortunately it’s no longer the law of the land, at least as far as the federal government is concerned. The Religious Freedom Restoration Act passed in 1993 which required laws that restricted free exercise of religion to pass strict scrutiny, and while the Supreme Court ruled that it couldn’t apply to the states, in 2006 they did rule that it did apply to the federal government. So if this does go to court, I don’t really like their chances.

It’s bullshit, though, since there are many Catholic institutions that already provide contraception coverage to their employees without whining about it. Unfortunately, I don’t think the administration can successfully argue “But that’s not *really* a Catholic belief” in court, even though it’s the truth.

I don’t mean to cross the streams here, but Chet is right. Employment Division v. Smith is a bizarre decision that reads like it was written by a law clerk trying to win points at a Federalist Society student debate. And let’s face it, if the subject of the case had been a religious practice involving a mainstream faith and not involving drugs, the decision would have gone the other way.

Pre-Smith the law already recognized that religious freedom is not absolute.

#2:

Actually Smith is right. The relevant category isn’t peyote, but hallucinogens. The government bans all of them absent a showing of medical use. I am not a fan of those laws, but they don’t single Indians out.

Not that Scalia will worry the least little bit about contradicting himself if he can get the law to say what he wants it to say.

I agree with the hating on Employment Division v. Smith, and I am sure if mainstream Christians used some sort of hallucinogenic drug in their rituals, Scalia would certainly have come down the other way in his decision. AFAIC, the actual deciding principle in Employment Division v. Smith was not that the right to free exercise of religion doesn’t trump state (and federal) laws but that state (and federal) laws can trump the religious rights of non-Christians and/or people with more melanin than Scalia. Thus, there would be no real inconsistency should Scalia ever write a ruling striking down requirements to cover b/c as being unconstitutionally burdensome in terms of free exercise of religion ... since the principle is that Christians should be free to impose their views on others but the state’s laws trump specific practices of particular non-Christian groups.

BTW, I am not a lawyer, but the way I understand Employment Division v. Smith is that it actually could take us back to the old days of Jews getting in trouble for keeping their businesses open on Sundays: after all, the laws to close businesses on Sundays weren’t targeted specifically to burden Sabbath observing Jews by de facto requiring them to have their businesses closed two days a week ...

DAS - the Supreme Court’s never held blue laws to be illegal.

It’s bullshit, though, since there are many Catholic institutions that already provide contraception coverage to their employees without whining about it. (Felwith @ 6)

Including many of their Catholic employees. Lay Catholics (1) use contraceptives about as much as everyone else. When someone says being against birth control is a Catholic position, they mean it’s the position of the boys in the beanies. Who are not most Catholics.

____
(1) Stop sniggering. What are you, 12?

I don’t think I’d use Employment Division vs. Smith as helpful background for this either.  Scalia is hostile to Native Americans tribal sovereignty and the US Gov’t has been quite hostile to all Native American cultural practices since its founding.  Against their own 1st Amendment after all, for centuries they outlawed Native religion.  Up through the 1940s people were arrested for attending traditional ceremonies.  And there were plenty of other policies designed to destroy our use of languages, our land base, controlling our own natural resources on our lands (or on ceded lands under applicable treaty).  And although now they try to put a happier face on it and pass a few feel good, toothless Native American religious freedom laws, the powers of the feds and the individual states are still trying to grind down any power or independence the tribes have left.

Scalia, being a good Catholic, will pretzel away from what he wrote in 1990 and find a way to let the whining Catholic bishops do what they want.  And I suspect the rest of the conservative crackpots on the Supreme Court will as well.

Didn’t the court also just unanimously rule that a religious entity could discriminate against employees as long as it was in line w/ their religious mission? (paraphrasing from what I recall talking heads saying)

D - sort of. They held that religious entities could discriminate against employees hired to be ministers of their churches. Catholic hospitals and charities don’t ordain employees or consider them to be ministers of the Catholic Church.

D - to expand on Jesse’s response, there’s ALWAYS been a pretty big distinction legally between what religious institutions can do with regard to employees hired for explicitly religious roles and those hired for non-religious/administrative/secular roles. 

For example, the catholic church can obviously religiously discriminate when hiring priests.  But not when hiring professors at Georgetown.  The recent ruling was largely in keeping with this distinction - the quirk was really that it wasn’t a hiring decision, but a firing decision - in the end, the church gets the definitive word on who they consider eligible for ‘clergy-hood’, regardless of how ridiculous their standards may be.

@Dilan: just as in Church of Lukumi Babalyu Aye the law banned religious sacrifice for everyone, and so it didn’t single out Santeria….oh, wait, it did.

Scalia was asked afterward if Smith could have been applied to ban Catholics and Jews from the religious use of wine in dry counties. He angrily denied that this was the case, which is flat-out wrong.

The one tiny loophole in Smith was that if you could show a law was specifically passed just to shut down your religion, then maybe it was unconstitutional. But if it just so happened that the Baptists in your state didn’t want anyone to drink alcohol because it’s the Devil’s brew, then too fucking bad if you wanted wine on Shabbat or at your Mass; it was generally applicable and not aimed at your faith on purpose so STFU.

There’s a fabulous law-review article called ‘Free Exercise on the Mountaintop’ that takes a well-deserved hatchet to that opinion. I don’t know for sure, but I’ve always harbored a suspicion that Ed Whelan was the clerk who drafted it. It’s got that kind of clueless, smug adoration of its own cleverness that’s his hallmark.

Soooo…I guess my question is, if the hospitals/schools were owned by the Jehovah’s Witnesses and they refused to cover or provide life-saving therapies like blood transfusions to their workers, would that hold up to legal scrutiny?  If not, what is the legal standard for allowing religiously-based discrimination between non-life saving and life-saving therapies?

If a Catholic hospital can’t use it’s religious exemption to withhold lifesaving, critical medicines or therapies, on what basis can they withhold birth control?  Simply BECAUSE it’s not life-saving?  In that case why offer insurance coverage at all for anything not critical?

As far as I know, JWs have in fact been convicted of withholding cricital care from their children so their religious beliefs were not a defense against what amounted to criminal neglect.

That is a fascinating hypothetical, sriracha, but as a former JW I can tell you that it’s moot.  Jehovah’s Witnesses, as a religious entity, are highly unlikely owners of hospitals or schools.  Period.  They are fiercely apolitical, and unlikely to take on the ‘worldly’ entanglements of operating such institutions (except on a strictly in-house basis).  You’re more likely to find JWs and their doctrines facing legal tests on an individual basis, such as in West Virginia State Board of Education v. Barnette.  Though I don’t doubt it’s happened, I’ve not heard of any cases of JWs withholding critical care per se; that sounds more like Christian Science.  JWs will refuse blood transfusions, of course, but the more savvy ones will normally be proactive about working with physicians on medical alternatives.

On a tangential note, one of the legal precedents for the overturning of Prop 8 in CA involved Jehovah’s Witnesses: How Jehovah’s Witnesses helped kill Prop 8

In fact, to risk bending the tangent back to the topic, if I were arguing in favor of Obama’s rule proposal (which even Obama may not have the spine to do, alas), I’d use the JWs as precedent.  If the Catholic Bishops are so concerned about being forced to act against the supposed tenets of their faith, nothing is stopping them from getting out of the practice of operating institutions that necessitate the hiring of likely contraceptive users.

The Obama has offered the Bishops a “compromise” on free BC—and the Catholic Bishops have rejected that compromise.

The working assumption was that the “Hawaii compromise” would come into play. Under this regime, any exempt religious organization would have to tell enrollees how they could directly access contraceptive services from their insurance company. The religious institution wouldn’t be paying for insurance on contraception, then, but access would be ensured.

But according to the National Catholic Register this would not be acceptable to the US Conference of Catholic Bishops

http://news.firedoglake.com/2012/02/08/catholic-bishops-oppose-hawaii-compromise-on-birth-control-access/

Wotta surprise.

I’m laying bets: the administration offers X number of “compromises” until birth control is compromised enuf for Bishops?

Sam - going backward yes, not hiring potential contraceptive users (women) is actually as far as I know legal for a religious entity to do.  I think that would go back to the “A Christian bookstore can’t be forced to hire gay people” idea ergo if Catholic hospitals and schools engaged in blatant sexual discrimination, they’d be safe in the eyes of the law but NOT in the court of public opinion, as long as they do not accept public funds (which many of them do so they’d have to give up those lucrative Uncle Sam dollars)...and who knows if they’d even be able to fill positions for administrative assistants, nurses, etc.

As far as the JWs go, I know they don’t get involved in having schools and hospitals BUT the hypothetical I wanted to present was if a religious entity could legally withhold critical care on the basis of free exercise of religion.  Could they?  If not, then I wonder on what basis they are allowed to withhold NONcritical care and who decides on whether or not a certain need is critical?  And if they CAN withhold critical care on the basis of religion, then we can’t even rightly call that coverage.

If Obama’s people had any brains, they’d have already publicly called the bishops’ bluff. 
‘98% of your followers use contraceptives.  Shitloads of your institutions all across the country already offer contraceptives.  What the fuck are you whining about?  Why don’t you use your energy for something more constructive, like making sure your priests aren’t fucking little children?’
That’s what my press secretary would say, and I’d probably have her mutter something dark about tax-exempt status and political activism, too.

And if they CAN withhold critical care on the basis of religion, then we can’t even rightly call that coverage.

I think that’s a key point, sriracha.  There are a million and one ways to attack and kill this controversy, if one is so inclined.  In today’s political climate, as in most others, this case boils down to which dog has more fight in it.  The Obama administration’s record regarding culture war battles (and a lot of other policy battles, for that matter) isn’t exactly confidence-inspiring, which is probably why the bishops saw fit to raise such a transparently dishonest stink about this.  The smell of fear, or at least the bouquet of pusillanimous political calculation, wafts from the current administration like the cloud of dust that accompanies Pig-Pen.

However, fresh off spanking Komen, Planned Parenthood has joined the fight, along with other repro activists:

http://org2.democracyinaction.org/o/5971/p/salsa/web/tellafriend/public/?tell_a_friend_KEY=8768

@ Felwith:

The Supreme Court gutted RFRA in the City of Boerne v. Flores decision (521 US 507 (1997)), making Smith the law of the land again.

@MikeEss:

Agreed.  Scalia will slither around as many BS distinctions as is necessary to make sure Smith screws Native Americans but cannot touch Catholic bishops.

Constitutional Law isn’t really my forte (except where it intersects with IP law), and I’m not yet a lawyer, but I don’t see why this regulation wouldn’t be able to pass strict scrutiny under the The Religious “Freedom” Restoration Act. The compelling government interest in this case is ending gender-based discrimination. Employer-provided health insurance is a component of overall employee compensation, so what’s happening here is employers are reducing employee wages and insisting these wage offsets can only be substituted with discriminatory insurance programs. The only way the HHS regulations could be more narrowly tailored to address that compelling government interest is if they used taxpayer money to compensate the victims of gender-based discrimination. I’m not sure if narrow-tailoring requires the federal government to go that far.

BTW, I am not a lawyer, but the way I understand Employment Division v. Smith is that it actually could take us back to the old days of Jews getting in trouble for keeping their businesses open on Sundays: after all, the laws to close businesses on Sundays weren’t targeted specifically to burden Sabbath observing Jews by de facto requiring them to have their businesses closed two days a week ...

What makes you think there aren’t parts of the country where everyone, including Jews, are required to close their businesses on Sundays? The Supreme Court, FYI, has upheld Sunday closing laws.

@Dilan: just as in Church of Lukumi Babalyu Aye the law banned religious sacrifice for everyone, and so it didn’t single out Santeria….oh, wait, it did.

But you are ignoring the key difference. A law that bans animal sacrifice but allows other forms of animal killing bans a religious practice. A law that bans the ingestation of hallucinogenic drugs bans a practice that may or may not be religious. That’s exactly why Lukumi Babalyu Aye came out one way and Smith came out the other, with the Court composition almost the same.

There’s a fabulous law-review article called ‘Free Exercise on the Mountaintop’ that takes a well-deserved hatchet to that opinion. I don’t know for sure, but I’ve always harbored a suspicion that Ed Whelan was the clerk who drafted it. It’s got that kind of clueless, smug adoration of its own cleverness that’s his hallmark.

It is clever. I am a great fan of it. It stands for a fundamental principle, which is we all have to play by the same rules. Which is actually a liberal principles—remember, it’s the right wing that wants exemptions from having to teach their kids evolution or sex education, having to pay for contraception, etc.

And further, it solved a problem. I don’t know if you’ve ever looked at pre-Smith jurisprudence, but it was a mess. You could never tell which exemptions were constitutionally required and which were not. Smith is a better rule.

Jesse, I don’t think you are so delusional to think that just because Scalia decided that something applies to Indian religious practices that he would decide that the same principle should apply to Catholic ones.

Just look at his “state’s rights” stance and then the medical marijuana case and Bush v. Gore.  The only principles he cares about are the rights of the powerful against the weak and the rights of the moneyed against the poor.  To paraphrase a congressman from the ‘60’s, “rich and powerful people are people too, and they deserve a justice to serve them.”

Scalia, Roberts and Alito will rule whichever way they please, but will they be able to get Kennedy to sign onto another “this case can’t be cited for precedent” paragraph? (Not that that graf actually means anything—if a future court decides to read something as precedent, no one can stop them.)

I apologize for not putting evidence with my first comment, but better late than never. http://motherjones.com/politics/2012/02/controversial-obama-birth-control-rule-already-law

Jesse, I don’t think you are so delusional to think that just because Scalia decided that something applies to Indian religious practices that he would decide that the same principle should apply to Catholic ones.

In fact, he specifically denied that the same principle could (let alone should) apply to Catholic religious practices. This is, obviously, silly.

Dilan, it wasn’t a mess; it simply wasn’t a bright-line rule. Neither is Smith, really. But what Smith did, in essence, was to say that all the government had to do was to carefully hide the fact that it was targeting a particular religious practice (cf. City of Hialeah).