Christian Baker Ordered to Bake Cakes for Same-Sex ‘Weddings’ Files Appeal | Christian News Network

Remember this post where Matt Barber and Peter LaBarbera were gloating about what Hobby Lobby was really about? Well it appears that Jack Phillips or should I say Alliance Defending Freedom is ready to argue that state laws do not apply to Christians when Christians disagree with said state law, "[i]n May, the Colorado Civil Rights Commission upheld Spencer’s ruling, stating that Phillips violated the state’s civil rights law."

It is just this issue that Barry Lynne of Americans United for Separation of Church and State was concerned about in regards to the Hobby Lobby case. Lynn stated that the primary concern is contraceptive coverage under the ACA; but the agenda of the Religious Right is the right to opt out of ANY federal or state law(s) they do not like because of actual or alleged violation of THEIR religious principles.

As with Elane Photography (also represented by ADF), Phillips is going to argue that the Colorado Civil Rights Commission's ruling violates his First Amendment rights by compelling him to engage in "speech" he doesn't believe in. This is the tactic ADF hopes to use, a "conservative social agenda in terms of protecting religious freedom instead of enforcing “family values — a subtle but profound shift in the culture war that deliberately moves the religious right from offense to defense for the first time in decades."

With that said, all the legal mumbo jumbo aside, Phillips and the ADF are still blatantly asking to be allowed to break a law because they are special. They are asking for a special privilege because they are religionists. Even if one where to take religion out of it, they are still wanting to break the law.

"The anti-gay, anti-freedom to marry crowd, having largely lost the argument on gay people and on marriage, are resorting to a distraction argument that is aimed at tearing a hole in the longstanding protections we have in this country against public accommodation discrimination,” said Evan Wolfson, head of the pro-LGBT rights group Freedom to Marry. “Their quarrel is not really just with marriage, it’s with the whole idea of non-discrimination law that we’ve fought hard for over decades through many difficult chapters of American history.”

Entering the commercial marketplace means having to abide by its rules against discrimination. In other words, you can not offer a "limited menu" based on your preference(s). If you open a business, ALL services must be available to ALL consumers. It falls under the general purview of the public accommodation section of the Civil Rights Act of 1964.

Adam Serwer, in his piece cited above, sums up quite well the precedent opened by the Hobby Lobby case and the agenda behind it, "Cases like these aren’t just about legal precedents, they’re about shaping how society decides which freedom it wants to protect with the force of the law—the right not to be discriminated against, or the right of individual entities to decide whom they want to serve and how."

Christian Baker Ordered to Bake Cakes for Same-Sex ‘Weddings’ Files Appeal | Christian News Network

Barry Lynn talks Hobby Lobby on Point of Inquiry (Pt 16)

Q:: How optimistic are you that the Administration will prevail in the Hobby Lobby case?

I'm guardedly optimistic about it. I say that because, there is a point where if you allow (because of this federal statute) every company to be exempt from anything they don't like, all of the sudden it sounds like you created this gigantic loophole in this law; and, perhaps every other law. Where people just do whatever they want, follow whatever laws they want. That's not called governance anymore, that's called anarchy. And I don't think members of the SCOTUS in general are willing to go that far.

I don't know how you'd draw the line, as we discussed earlier, if it's ok for a Catholic or Mennonite employer to do this. Why not a Scientologist? Why not a Jehovah's Witness? Why not a Christian Scientist person who doesn't want to cover any kind of medical,,, This is just no place to draw the line once you go off this cliff of saying companies have a conscience and companies can do anything they want in regards to the laws they don't happen to like.

So it's a dangerous road, I think there are probably people even in the middle (Justice Stephen G. Breyer & Justice Anthony M. Kennedy) who are not going to want to go down a road that seems to have no end but a drop-off a cliff.

Barry Lynn talks Hobby Lobby on Point of Inquiry (Pt 15)

Q::Do you feel that Hobby Lobby has a larger agenda against Obamacare as a whole?  That his "religious freedom" is being used as a bit of a fig leaf for hostility to corporations having to participate in insurance in general?

I think that Hobby Lobby (I can’t speak for Hobby Lobby’s entire agenda or lower agenda), but I wouldn’t doubt that it’s there, but I’m not sure about that.

What I am sure about is that the United States Catholic Conference supports their view.  Most of the Religious Right supports their view.  They do have a a not so hidden agenda and that hidden agenda (or not so hidden agenda) is, “WE want to be able to exempt ourselves from any laws that we don’t like; that we find “religiously’ objectionable.”

So that’s why when some of my friends talk about this as if it’s “merely” about contraception, I have to correct them.  I say it’s about EXEMPTION by companies from the laws that apply to the rest of us, the imposed costs or burdens, or doing something which people may find objectionable.

There’s no question that the Religious Right hates the whole ACA.  They don’t just only hate the revision of it, they have always hated it.  They have always hated this President even before he got it passed.  So when you start with that premise, you know this is one of the weapons they want to use to try to tear the statute apart.  Having failed to do the thing they had hoped to do earlier, that is two years ago, to dismember the ACA by claiming that a personal mandate (individual mandate) was unconstitutional.  In that case they lost the Chief Justice [John Roberts] and that’s why we have the ACA going into effect; albeit slowly and tripping along the way.  But it is going into effect on January 1st.

[Edited for clarity]
So they take the law, nitpick at one section of it, and to achieve what they hope is another ding into the creditability of the ACA.  As I said earlier in a broader sense they will go after other laws they wish to be exempted from following.

Barry Lynn talks Hobby Lobby on Point of Inquiry (Pt 14)

Q::  So what would happen if Hobby Lobby were to prevail?  I'm an atheist, I own a corporation and I happen to have an ethical belief that it's wrong to use generic drugs for some reason.  Would that count as a "religious belief" that is entitled to the same protection as the contraception issue?

Well, listen, although there is nobody planning to put me on the SCOTUS.  But IF somebody did, and I was on the Court, I would say, "of course you could make the same argument and you should be allowed to make the same argument." 

[For example,,,]

There are very liberal religious denominations that have been concerned about population growth for a long time.  [Hypothetically] They might suggest (I'm not sure that anyone has done this) from a theological viewpoint, "I'm not going to cover the birth costs of more than two children because I think it is morally irresponsible. It's ethically irresponsible for this country, that uses so much of the worlds resources to begin  with, to encourage people to have three kids, four kids or five kids."

That would be a religious based argument.  Arguably it should be taken into consideration as should the atheist argument that says (if one were constructed), "We're just not going to cover 'X'.  We're not going to allow 'X' cause we have an ethical objection to it."

Whether that would happen with the atheist claim, it's very hard to tell because so few of these cases are based on the idea - atheists bring a lot of cases - let me clarify this, but they don't necessarily bring them on behalf of only atheists.

When atheist groups take a position about a matter of separation of church and state, with very few exceptions (I can't really think of any right now), I would say, "right on, do it."  This is exactly the position Americans United for Separation of Church & State would take.  It is the same position I would hope the ACLU would take; and I hope a lot of religious groups who care about separation would take as well.

So atheists often file suits not just to just protest their own interests but to generate, or at lest help us prove there is and should be a decent distance between the institutions of religion and those of government in the United States.

[I think what Lynn was attempting to convey, although atheist are involved in many cases, their end goal is not just for the benefit of atheists but any individual or group who has similar separatist concerns.  It is not just and atheist agenda being pushed.]

Barry Lynn talks Hobby Lobby on Point of Inquiry (Pt 13)

Q:: Where does that leave atheists and other non-religious/non-theistic traditions?  Is atheism considered a "religion" unto itself for legal purposes in the SCOTUS in the past?

In general, atheism is assumed to be a system of belief that is comparable to, and held in high regard, the same way theists hold their religion in high regard.  There are very few cases that get to the SCOTUS that deal with atheism at all.  They tend to be resolved [prior to reaching the SCOTUS].

[I have edited this section for clarity concerning the Silverman case.]

The example Lynn cites involved Herb Silverman, who in 1992 applied and was rejected to become a notary public in South Carolina.  The issue, an 1868 clause in the S. Carolina Constitution, "No person who denies the existence of the Supreme Being shall hold any office under this Constitution."

It was shown, in a lower court ruling, that of 30,000 applications only Silverman's was rejected.  According to the State's attorney Brad Waring,

Silverman's application was rejected because it lacked the correct number of signatures, and because he had crossed-out the word 'God' from the constitutionally required oath of office.

"If the word protect, preserve or defend had been struck from the application, the result would have been exactly the same," Waring told the court. "There was no religious discrimination in this case, and there was no evidence presented of it."

The ACLU, who represented Silverman, contended that of those 30,000 applications the only one rejected was Silverman's; a devout atheist.  In the opinion of the Court, Circuit Judge Thomas Hughston Jr. ruled that South Carolina did indeed violate the First Amendment, by requiring a religious test to hold public office.

The case eventually found it way to the state Supreme Court, where in 1997 "the court's five justices unanimously agreed that the requirement violates the U.S. Constitution and upheld a lower court ruling in the case of a College of Charleton professor."

Returning to Lynn's comments.

There are some justices, I think Scalia in general and Thomas (although he doesn't say much about,,, he doesn't say much about anything), but Scalia has suggested that maybe atheists don't have the same rights as religious people.  And that their ideological position is not one you can bring into court using the same kind of First Amendment arguments that a Catholic or a Methodist might use.
 __________
 From 2008,,,

Speaking over the past weekend at the annual dinner of an Orthodox Jewish group, Agudath Israel of America, U.S. Supreme Court Justice Antonin Scalia claimed that the Establishment Clause of the First Amendment should not be construed to forbid government from favoring “religion over nonreligion.” Justice Scalia has made this point before, both on and off the bench, and he may be correct when he says, as he did before Agudath Israel, that such a prohibition “does not . . . represent the American tradition,” but only if one excludes from that tradition the last forty years of Supreme Court jurisprudence.

__________

So far, luckily,  that view is in the minority but I think we have to be very cautious about this idea.  That the religious freedoms, so to speak, of people ONLY rolls to people who have theological views and not to those who have considered and rejected those views.

Barry Lynn talks Hobby Lobby on Point of Inquiry (Pt 12)

Q::Does that raise issues, in and of itself, when you have people who are asserting that they don't have to follow certain laws and calling them religious beliefs?  Is it legally significant whether their interpretation of the religious beliefs of the tradition they are part of are actually correct?

That's actually an excellent question and a kind of unresolved one because a lot of people assume that you have to have some kind of doctrinal position to fall back on; some doctrinal position to point to. 

Occasionally the Courts do that, but they do so with a little sense of nervousness.  Because the idea that the Court is going to decide whether something is a central tenet of a religious group, or whether the interpretation by the leaders of a church are the only interpretations that will be given any kind of legal credence, that's a big deal in itself.  Because even a staunch church-state seperationist (in the sense we want the Government to be entirely secular) we do get a little nervous when members of the SCOTUS start to parse the theology of individual institutions.

So in general, if you say as an individual, "I interpret my religion to be X" even if the boss says it's Y, you're going to get listened to in the Federal courts.  You're not going to be thrown out because you can't prove this is a doctrinal matter that came down from the, if not heaven, at least from the hierarchy of your church.

So it's still kind of an unresolved question, but in this case, the Mennonite owner of the furniture company has said that he is not trying to argue that every Mennonite believes as he does.  He just says, "Look, I look at religious experience; I look at scripture and I have concluded that I can't be a party to the provision of birth control."

Barry Lynn talks Hobby Lobby on Point of Inquiry (Pt 11)

I have come to the realization whilst working through this interview, that I had no clue as to the finer points of this dispute.

1]  As per the SCOTUSblog, the "full" title of the case (without all the funky numbers) is Sebelius v. Hobby Lobby Stores, Inc.  Kathleen Sebelius as Secretary of Health and Human Services is considered the lead petitioner by proxy; in other words it is her job.

2]  As mentioned prior, the Hobby Lobby case is also linked to  Autocam Corp. v. Sebelius and Conestoga Wood Specialties Corp. v. Sebelius

3]  Sebelius, in regards to Hobby Lobby  is considered the petitioner because the Department of Health and Human Services (the government) is initiating the claim, seeking clarification of the lower Court rulings concerning the application of the Religious Freedom Restoration Act of 1993:

In a divided decision, the en banc court of appeals held that the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. 2000bb et seq., allows respondent for-profit corporations to deny employees the health coverage to which they are otherwise entitled by federal law, based on the religious objections of the respondent individuals who own a controlling stake in the corporations.  As the government explains in its petition for a writ of certiorari (at 16-35), that unprecedented decision merits review because it raises important questions about RFRA’s application to regulation of commercial enterprises and because there is an acknowledged conflict in the courts of appeals on the question presented.

In plainer terms does the Religious Freedom Restoration Act of 1993 allow Hobby Lobby to deny its employees contraceptives to which the employees are otherwise entitled by federal law, based on the religious objections of the corporation’s owners?

4]  Simplified Case Timeline/Summary:

• September 12, 2012 - Hobby Lobby files initial suit in the U.S. District Court for the Western District of Oklahoma under the First Amendment, the Religious Freedom Restoration Act ("RFRA"), and the Administrative Procedures Act ("APA"), against the U.S. Departments of Health and Human Services, Labor, and Treasury.
• October 15, 2012 - District Court Judge Joe Heaton denied "friend of the court" filed by a group of (then) current members of Congress arguing for a broad application of RFRA.
• October 22, 2012 - Government counters with an injunction arguing that the contraception mandate did not substantially burden the plaintiffs' religious liberty rights under RFRA, and that the regulations were the least restrictive means of advancing the government's compelling interests in public health and gender equality. The brief further argued that the mandate did not violate the plaintiff's religious freedom because it was a neutral law of general applicability.
• November 19, 2012 - District Court Judge Joe Heaton denied Hobby Lobby's motion for a preliminary injunction; secular, for-profit corporations (such as Hobby Lobby) do not have a constitutional right to religious freedom.
• December 12, 2012 - Hobby; Lobby appeals Heaton's decision; a stay is granted in regards to previous ruling pending the 10th Circuit appeal.
• December 20, 2012 - The Court of Appeals (Judge Carlos F. Lucero and Judge David M. Ebel) denied Hobby Lobby's motion for an injunction pending appeal on the same grounds as the District Court's injunction denial.
• December 26, 2012 - Justice Sonia Sotomayor, Circuit Justice for the 10th Circuit Court of Appeals,
• denied Hobby Lobby's application for an injunction pending appellate review.  Finding that the plaintiffs' entitlement to injunctive relief was not indisputably clear.
• On March 29, 2013 - The 10th Circuit decided to hear the case in front of all the circuit's judges; this is an en banc review.  An unusual occurrence, as first a 3-judge panel normally would hear the case then en banc.
• May 23, 2013 - Oral arguments occurred
• On June 27, 2013 - The 10th Circuit, en banc, reversed the District Court's injunction denial, finding that Hobby Lobby was entitled to bring RFRA claims.  The 10th Circuit sent the case back to the District Court, asking the lower court to address two remaining prongs of the injunction inquiry and to decide whether to grant or deny Hobby Lobby's motion for an injunction.
• June 28, 2013 - District Court Judge Joe Heaton) granted Hobby Lobby's emergency motion asking the District Court to grant a temporary injunction pending the full injunction hearing.
• July 19, 2013 - followed up by a longer-lasting order.
• November 26, 2013 - The government sought certiorari review of the 10th Circuit decision in the Supreme Court; cert was; the Supreme Court consolidated this case with Conestoga Wood Specialties v. Sebelius, a similar case from the Eastern District of Pennsylvania.

Barry Lynn talks Hobby Lobby on Point of Inquiry (Pt 10)

Q::There were dozens of these similar court challenges in the lower Courts but the SCOTUS decided to hear these two.  Why do you think they chose these ones?

I think they chose these because they wanted a split.  That is they wanted to take one case where the employers had won (HL) and one where the employers had lost; they also did not want to take only cases involving Catholic employers.  I think they also wanted to take the Conestoga Furniture Company case because it does involve Mennonites who to my knowledge (and I have done some work on this), the Mennonite church doesn't actually seem to take a (doctrinal) position that is against the use of contraception.  But this individual Mennonite, runs this individual company, has decided on his own that he doesn't want people to use contraceptives.

Barry Lynn talks Hobby Lobby on Point of Inquiry (Pt 9)

Q::  Is there an distinction between freedom of religious expression (things we normally think about in terms of having rituals and choosing which god to pray to or don't pray to) versus what Hobby Lobby seems to be saying:  that their religious freedoms involve never doing anything that is against the tenets of their religion.  Is there a conceptual divide between those two kinds of things?

I think they (HL) and these companies, as well as the United States Conference of Catholic Bishops, have done a very effective job of confusing a lot of Americans in the middle of the SOCAS issues over the past year or so.  What they have argued is that religious liberty can only be protected as corporate entities, including big hospitals or, in these cases, for profit companies can exercise something that is previously unrecognized in law, that is CORPORATE RIGHT TO RELIGIOUS FREEDOM.  Now we do know the CHURCHES have some rights, all corporations have some rights.  We don't eliminate their ability to do things without utilizing "due process of law." It's the same constitutional standard that we use in so many cases.

But I honestly don't think that in this case you could make a credible argument that this is about religious liberty.  This is about whether a religious organization, or in the case a for profit organization, whose boss happens to be very religious can supersede the conscience claims of employees, of third parties.

Does this have an adverse effect on third party?  Of course, because the contraceptives they're talking about are not even used merely for birth control.  (Although I don't think this will be the turning point of the case either.)  But we do know many women take some of these same drugs for other purposes and they are unrelated to family planning or birth control.  So this is such a sweeping claim, "we won't do it, we won't cover these drugs" that it does have an impact on the health of women generally, even if they're not using it for family planning.

So they're making a lot of extraordinarily broad arguments and this is only remembered, as you mentioned earlier, in the medical arena when it comes to other laws they don't like. Whether they are pay equity based on the fact that they think man should be the head of the household therefore women don't need to be paid as much as men.  Or whether they make arguments that the civil rights laws shouldn't apply to them because they feel more comfortable with people just like themselves.  I think we have heard that argument throughout the history of race relations and gender relations in this country.  There are always groups that say, sadly often religious groups, that say, "well, we think black and white should eat in different places because we feel more comfortable that way.  And they might also footnote and "we can find some way that the Bible could be contorted to support our view."

Barry Lynn talks Hobby Lobby on Point of Inquiry (Pt 8)

Q::  Hobby Lobby and the other cases coming before the SCOTUS (the Conestoga Wood Specialties Corp) are arguing that this violates their religious beliefs because certain birth control technologies [in their view] cause abortions; but that is very much against the consensus of the medical community.  Does that make any difference in terms of the likelihood of them prevailing whether or not their empirical claim is true?

A straightforward statement by Lynn, stick to the RFRA and the evidence of this case, and all will be as it should:

"I don't think it is likely the SCOTUS will decide this on the basis of competing scientific claims.  And by competing claims I mean there are 95% of the people on the side that say that these methods of birth control do not induce abortion, they do not prevent implantation of a fertilized egg.  But the 5% of scientist/biologists on the side of the Right-to-Life movement, for example, they will argue that the science supports the idea that IUD and the morning-after pill and everything they don't like, is in fact abortion inducing, an abortifactant."

An important point is made here by Lynn, Roe v. Wade (1973) is still the law of the land. 

"I don't think the SCOTUS will honestly resolve that scientific question.  I think they are going to say as long as this is a medical procedure which is permitted by law, we haven't overturned Roe v. Wade (although the same people on the opposite side of us in the HL case would love us to repeal Roe v. Wade).  But as long as it is a right, that can be attained by people, I think they will look and see whether you can make a credible case, that a company has a corporate conscience, and that conscience is more important than the moral decision making of individual women."

"That's where the rubber will hit the road, they will interpret the RFRA.  I they interpret it broadly and beyond the scope of anything that was intended, then HL will win.  If they interpret it the way all the evidence suggests (and my personal experience of this statute indicates is true) then people like us will prevail."

Barry Lynn talks Hobby Lobby on Point of Inquiry (Pt 7)

In regards to the case United States v. Lee (1982), three points Justice Burger brought to bare and why this case is good precedent in regards to the Hobby Lobby case:

1]  Burger points out that the Congressional exemption, mention above concerning Byler, was only for self-employed Amish, not Amish who employed others; therefore, that exemption could not be construed as being applicable here.

2]  Although Burger agreed that Lee's religious beliefs were sincerely held, ",,,not all burdens on religion are unconstitutional. The state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest."

3]  "Congress and the courts have been sensitive to the needs flowing from the Free Exercise Clause, but every person cannot be shielded from all the burdens incident to exercising every aspect of the right to practice religious beliefs. When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity."

In other words, entering into commercial business (ie Hobby Lobby) is voluntary.  Choosing to become a business owner entails certain legal responsibilities, "The social security system in the United States serves the public interest by providing a comprehensive insurance system with a variety of benefits available to all participants, with costs shared by employers and employees."

Compare that to Lynn's statement:

"The administration, and those of us that support it with 'friends of the court briefs,' will argue that there is a legitimate State interest in creating a healthcare system that works; and that it works for men and women, the rich and poor. This is an effort to have a comprehensive system of healthcare in America; at least the beginnings of a comprehensive system. That's the argument we will  use and I think it is a very good one."

Personally I do not see how HL will over come this hurdle.  Burger's assessment and opinion of Lee set outstanding precedent.

Barry Lynn talks Hobby Lobby on Point of Inquiry (Pt 6)

A bit of history to clarify Lynn's comparison to the Amish in regards to Social Security:

In 1935 "The Social Security Act" which included "Old Age, Survivors, and Disability Insurance," passed Congress.  In 1955 the Act was extended to include farm operators which set up the dispute(s) with the Amish.  Though they are supporters of "paying unto Caesar what is Caesar’s," they do have issue with commercialized insurance.  Under their doctrine, use of insurance is seen as not trusting God and of the world.  More succinctly it is a violation of their strongly held view of church-state separation, the paying of monies to the government in return for some form of benefit/welfare.  As Lynn mentioned, the care of the elderly is seen as the responsibility of the family and community, not the government.  They take car of their own.  In 1956 a group of Old Order Amish farmers began a legal battle with the IRS to preserve their faith.

The first case stemmed from a trend begun in the 50s, While Social Security was called a tax and administered by the IRS,  it was also clearly described as a form of old age and survivors insurance.  The Amish refused to pay the "premium" nor accept the benefits

Valentine Byler owed four years of IRS taxes, with interest the amount owed was $308.96.  In a 1960 case before the Pittsburgh U.S. District Court, Byler basically challenged the the use of the words "and Disability Insurance" which violated his religious beliefs.  The case was dismissed, but in 1961, the IRS in true conspiratorial fashion, seized 3 horse and tackle as payment.  ",,,People have no right to use their religion as an excuse not to pay taxes."

Later in 1961 following the seizure a meeting occurred with the IRS commissioner in Washington and Amish bishops citing I Timothy 5:8,  "But if any provide not for his own, and especially for those of his own house, he hath denied the faith and is worse than an infidel."  It was decide that other means would be pursued.  In the end, the Amish pursued a legislative exemption which was included in the 1965 Medicare bill, "a clause exempting the Old Order Amish, and any other religious sect who conscientiously objected to insurance, from paying Social Security payments, providing that sect had been in existence since December 31, 1950."

The preceding information was condensed from the following article:  Pay Unto Caesar - The Amish & Social Security

Barry Lynn talks Hobby Lobby on Point of Inquiry (Pt 5)

Q::Could it be argued that Hobby Lobby is asking for the freedom to impose it's own religious agenda over that of it's employees?

Lynn seemed a bit hesitant and unclear in his answer but talks of how it is the "the guy who runs the company" whose "religious views are being foisted on ALL of his employees."  Lynn demonstrates this point by pointing out that if one were to take a "poll of their employees, like the rest of the public, 9 of 10 women will have used contraception."  [This next statement a bit unclear and I'm not sure what Lynn is inferring.  Is he referring to actual printed company policy or some type of board of directorship?]  "I wouldn't say that companies have any of these positions themselves, but in this case the president of the company does.  The president of the company is the one who rules in these employee policies IF the SCOTUS buys this bogus argument."

Q::The RFRA says that the exception is when there is a legitimate State interest.  If the anti-Hobby Lobby side is going to prevail, what State interest are they going to articulate in terms of what they are defending?

Lynn characterizes the HL position as such, "They are going to say there is no legitimate State interest here because insurance coverage for contraception is not that big of deal.  You can go out and buy a box of condoms and it only costs a few dollars." [Pondering, will Viagra be cover under the ACA? If so, are they fighting against that?]

"The administration, and those of us that support it with 'friends of the court briefs,' will argue that there is a legitimate State interest in creating a healthcare system that works; and that it works for men and women, the rich and poor.  This is an effort to have a comprehensive system of healthcare in America; at least the beginnings of a comprehensive system.  That's the argument we will use and I think it is a very good one."

Lynn talks of the similarities of this case to the Amish in regards to Social Security law.

"The Amish, who have filed a number of very important lawsuits,,,have claimed that they should not only be exempt from Social Security themselves,,,but they have also said, we don't want to take social security out of our non-Amish employees who work for Amish companies.  The SCOTUS soundly rejected that idea over 20 years ago." [I believe Lynn may have misspoke here in regards to Amish employees as the case United States v. Lee (1982) dealt with an Amish employer, employing other Amish but failed to withhold social security taxes from his employees or to pay the employer's share of such taxes.  Unless there is another case I am not aware of.]

"It is very similar in some ways to the challenge HLs making and it's certainly going to be a case the HL side will need to distinguish itself from if it thinks it's going to get 5 votes, even with this conservative SCOTUS."

Barry Lynn talks Hobby Lobby on Point of Inquiry (Pt 4)

Just to emphasize what Lynn brought up in regards to the RFRA and FOR PROFIT companies, Michael Meyerson in writing about Newland v. Sebilius makes the same point:

The Supreme Court has consistently held that religious organizations have the power to decide for themselves, free from governmental interference, matters of internal discipline and governance. Thus, the courts are barred from stepping in to settle a dispute over which of two religious factions is the rightful owner of particular church property. Judges may not question a church's interpretation of its own internal documents.

If such rights were extended to for-profit corporations, much of modern corporate law would have to be discarded. By describing their internal structure as one of a religious hierarchy, those running a corporation could engage in all manner of manipulation free from the fear of governmental oversight or judicial review. Many private employees would be vulnerable, for the first time since the passage of the Civil Rights Act of 1964, to discriminatory treatment due to the religious preferences of their employers.

The special protection that is given to religious organizations so that they are free to perform their religious functions cannot logically or properly be ripped from its rightful context and applied to secular, for-profit corporations.

The Temple of Hercules Industries, Inc.

Barry Lynn talks Hobby Lobby on Point of Inquiry (Pt 3)

Q::Companies are legal fictions in that they are not natural persons, like humans.  It is a convention as to which rights they have and which rights they don't relative to person-hood.  What is the legal argument for why a company should have the tight to speech but not a right to vote?

In his response Lynn highlight a very important point:  ",,,we allow people in business to set up a corporation for the purpose of getting certain legal rights and avoiding certain legal responsibilities." 

Lynn explains this by use of a slip and fall lawsuit.  In general, if you are set up as a company and your company is sued, it is not the individual owner(s) as such that are being sued but the company (corporation) they set themselves up as to protect themselves.  [In other words direct personal responsibility is removed from the mix.]

Lynn continues, "Now when it becomes convenient for those same people who set up a corporation (for their benefit) to now all the sudden want to talk about their INDIVIDUAL rights as the guy who runs the company; they really want to have it both ways."

Basically what Lynn is saying, they want corporate protections (when convenient for them) and to be able to use those protection to cover their individual asses (ie bankruptcy).  But when things don't quite go the way they want, on a individual basis, they want to throw the title of corporation out the window.  Eat cake much?

Lynn does submit that corporation do have some free-speech right; the right to advertise for example.  But when it comes to exercising religious activity not so much.

Q::How does the Religious Freedom Restoration Act figure into all this?

[Lynn's response did not seem very clear to me so I will be paraphrasing and clarifying were possible.]

The RFRA (1993), which is supported by a large number of groups including the ACLU, was brought into effect for the purpose of protecting religious INDIVIDUALS and ORGANIZATIONS against government interference with the practice of their faith.

The example Lynn used is as follows: You are a male, Muslim, (city paid) firefighter who wants to grow a beard. [For clarity, Muhammad wanted his Muslims to look different from infidel Christians and Jews, he ordered them to trim closely the mustache and grow the beard.  The beard is a dictate of religious adherence.]  The (city) fire department you are employed by has a "no facial hair" policy.  Under the RFRA you can bring a lawsuit if that law (or other "governmental" action) substantially burdens your religious practices.  It is then up to the government to demonstrate that its actions served a compelling interest and that there were no less restrictive ways to accomplish its goals.

Lynn continues by pointing out that during the years that the RFRA was being discussed no one ever thought that the RFRA applied to FOR PROFIT companies.  What this law implies is that "churches could make some decisions on their own, church autonomy, like where to put an alter in a building.  The government can't come in and say, 'put it on the right side' if you want it on the left side.  It is this kind of very modest protections for the right of people to worship as they choose.  That is what this statute is all about."

"There is not a shred of legislative history that suggests that this was for Hobby Lobby, for the Mennonite furniture company or for other groups of people who are out there agitating for why they should be exempted from the ACA's provision of insurance coverage of contraception for women employees."

"Some of these companies are huge.  Hobby Lobby employs thousands of women around the US and they will be dictators of the CONSCIENCE RIGHTS of these employees if they prevail with the SCOTUS."

Barry Lynn talks Hobby Lobby on Point of Inquiry (Pt 2)

Opening comments dealt with the overall implication for the separation of church/state (SOCAS), medical freedom, and peoples freedom to make their own medical decisions.

Lynn states that the primary concern is contraceptive coverage under the ACA; but the agenda of the Religious Right is the right to opt out of ANY federal or state law(s) they do not like because of actual or alleged violation of THEIR religious principles.

Q::So if Hobby Lobby (HL) prevails, would that open the door for a Jehovah Witness owned company to not have to insure blood transfusions, or a Christian Scientist owned company to not insure anything at all in terms of health care?

Lynn agrees that could be a possibility also pointing out that it could also affect Pharma companies. Consider the gelatin used to make tablets, it comes from pork or beef products, which makes them unusable based on the belief systems of many Muslims.

Lynn then poses a "rhetorical" question of sorts: If you can be exempt from an insurance law that is supposed to bring medical care to everyone, why not just ask to be exempt (as some of these groups have) from pay equity statutes, from civil rights laws (effecting lesbian and gay Americans)? There is no stopping this once you go down this slope of exemptions based on religious claims for FOR PROFIT COMPANIES.

Following the "for profit companies" line of thought,,,

Q::That's really the issue isn't it, that these are for profit, large employers? Actual religious organizations that employ people already have an exemption under the ACA, correct?

In his response, Lynn draws a comparison to the Citizens United (CU) case in which corporations, though fictional entities, were given broad free speech rights. "If you don't like free speech rights for companies, you certainly don't like a 'conscience coverage' for those same companies."

"What these folks really want is to create a kind of fictional CORPORATE CONSCIENCE. The next time I see (in the case of Hobby Lobby) a DIY gnome sitting next to me in a pew in church; or the next time I sit on a piece of wooden furniture (made by a Mennonite company) and it starts praying with me, then I'll say 'maybe it does have a conscience.

Barry Lynn talks Hobby Lobby on Point of Inquiry (Pt1)

On December 9th, Lindsay Beyerstein of Point of Inquiry engaged in a conversation with Barry Lynn, Executive Director of Americans United for the Separation of Church and State. The topic of conversation was the Hobby Lobby case that is currently being looked at by the SCOTUS. Lynn explains how Hobby Lobby's court challenge of the birth control proviso in Obamacare could open the door for Jehovah's Witness-owned companies to refuse to cover blood transfusions, or for Christian Scientist-owned companies to refuse to cover any medical care.

For the past few days I have been picking away at the interview.  Writing up a sort of transcript and filling in some gaps that some may not be aware of.  I am about half way through the 30 minute interview, and will be publishing information in multiple posts.
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A few items for clarification purposes: This case is also linked to/with: Autocam Corp. v. Sebelius AND Conestoga Wood Specialties Corp. v. Sebelius.

Autocam is Catholic owned, Conestoga is Mennonite owned. Both "lost" in their challenge in regards to Religious Freedom Restoration Act (RFRA) which prohibits the government from substantially burdening a PERSON'S exercise of religion. (Think Citizens United, corporations are people). The 6th and 3rd Circuit courts ruled that a for-profit company does not qualify as a “person” under RFRA and therefore cannot use it to challenge the HHS mandate. This contrasts with Hobby Lobby in which the 10th Circuit ruled in Hobby Lobby Stores v. Sebelius that for-profit businesses are protected by RFRA.

Prior to listening to this interview, a few conversations amongst friends came up in regards to some of the issues involved.  Robert Baty in a guest column featured on Forbes discusses "how the thinking behind the desire for conscience exceptions to Obamacare provisions compares to that behind the clergy housing allowance." In the article Baty connects some interesting dots and sums up his thoughts as follows:

Another possible analogy also comes to mind that might be worthy of notice; some of most vocal apologists for doing little or nothing with reference to the income tax free ministerial housing allowance might look and sound like some of the most vocal apologists for expanding the health care exemption to any organization, business or individual who utters the magic words “religious conscience”.

As we will see this "conscience exceptions" or "religious conscience" idea  is an issue that Lynn hammers homes in the interview using the term "corporate conscience:"

a business owner's claim that their consciences prevents them from, in this case, providing insurance coverage for their employees knowing that some of them will use the coverage to get birth control pills. 

This conscience claim would primarily be in regards to Autocam as it is a Catholic tenet/doctrinal issue based on Pope Paul VI Humane Vitae of 1968. But since most American Catholics have ignored this "mandate" I'm am unsure as to what influence this would have. Although there are 5 Catholic judges sitting on the SCOTUS. One must also take into consideration the "false" beliefs/claims that birth control pills are abortifactants.

[For disclosure, Robert Baty and I are "friends" on Facebook and discuss various issues.  His articles are included  because they are relevant to the issue at hand.]

A second issue that came to mind in discussions prior to publication of the interview:  Would it be wrong to call Hobby Lobby (ownership as well as corporate entity) a bit hypocritical in their stance considering a majority of their product (I have read as high as 98% of said product) comes from China where pregnancy termination is State sanctioned? Estimates of 300+ million abortions over the course of the past 20 years, but yet they are bitching about contraception!  A point echoed by a recent comment attached to the interview:

The most obvious line of questioning that should emerge in challenging the Hobby Lobby religious exemption should start with their purchase of goods for resale from China, an officially atheist state that can enforce its one child policy with abortion. With well over 90% of its resale goods imported from China - thus allowing the company to make significant enough profit to expand into the large corporation that it is - where is the fidelity to this religious tenet that they claim for an exemption to pay for certain types of contraception?

And finally, one very important point to keep in mind when considering this case (Hobby Lobby), only FOR PROFIT corporations are affected. Lynn makes a very important point concerning this early on the interview.