March 27, 2014
The post-oral-argument predictions in the Hobby Lobby case will continue to pour out as various entities (more or less interested in the outcome) make guesses about which way the Supreme Court will rule now that the justices have had a chance to quiz the attorneys for each side. The truth is, no one knows what will happen. Nevertheless, several things were noteworthy and other things not noteworthy, about this morning’s arguments. My review of the arguments (with emphasis on noteworthy sections) is below (page numbers are those listed on the Supreme Court’s official transcript).
Arguments began with Paul Clement, the attorney for Hobby Lobby and Conestoga, presenting his clients’ case first. After some initial questions about whether Congress meant to include corporations within the Religious Freedom Restoration Act’s (RFRA) protections (pp. 4-9), the justices’ opposition to Hobby Lobby’s position predictably centered on what other claims corporations might bring should the Court rule for the Green family and against the government. Justices wondered whether a ruling for Hobby Lobby would lead to corporations objecting on religious grounds to providing vaccinations, blood transfusions, and the like. Hobby Lobby’s attorney Paul Clement disputed this implication, pointing out that the Court could be trusted to wade through these issues under RFRA. Furthermore, if the “parade of horribles” was likely to occur, where was it? RFRA has been around since 1993. Clement pointed that none of the claims over which the justices expressed concern had been brought (or they were brought but didn’t succeed) “notwithstanding the fact that the government concedes that sole proprietorships and partnerships and nonprofit corporations are all protected by RFRA” (pp. 14-15).
Clement was then questioned about how a corporation could exercise religion (pp. 17-21), but the argument drifted off into a discussion of what costs Hobby Lobby would incur if it refused to cover the contraceptives (pp. 17-29). A discussion subsequently ensued about grandfathered health plans, and then moved to the concept of burden shifting between the objecting employer and its employees (pp. 29-38). Clement noted that exemptions are allowed in the conscience law context — if a doctor objects to providing an abortion, the woman is not prevented from obtaining the procedure, but she must go to another provider (p. 38). Clement also pointed out that the government has available to it a less restrictive alternative than the current HHS mandate — allowing employees of objecting corporations to go on the exchanges and subsidizing them like it does for employees at companies with fewer than 50 workers (p. 40).
March 24, 2014
Recently, a local talk radio program here in D.C. had a caller who described his before and after insurance costs for his family of four. Before Obamacare: $3,500; after Obamacare: $10,500. His family’s disposable income has decreased by $7,000. He asserted that his family was middle class, so for someone who is not wealthy an income loss of $7,000 per annum is enormous. (And, substantial premium increases are expected in some regions of the country.)
Think of the businesses and organizations that may be hurt or “crowded out” by the implementation of this new tax: restaurants, auto companies, appliance makers, home improvement firms, decorators, book sellers, home sellers, educational programs, and charities. The list is long. One also has to have sympathy for young adults who may have substantial college debt along with this healthcare burden. Will people delay marriage and have fewer children? Probably so.
If we wish to restore economic growth and family formation and prosperity, it just seems obvious that the Affordable Care Act has to be repealed and replaced. The numbers are just too brutal.
March 21, 2014
In recent years, Corporate Social Responsibility (“CSR”) has sprung up as an area of interest to a variety of business forums — they promote it, talk about it, tout their CSR “compliance” on their websites, and brag about it to whoever will listen. Many corporations have entire CSR departments. They release yearly reports documenting their CSR compliance. Law firms have even established CSR practice areas. Corporations may seek to ensure they are advancing “sustainable” practices were possible, that they are treating indigenous populations equitably, and that their suppliers are not committing human rights abuses. “Green” corporations may enact policies above and beyond regulatory requirements in order to further their goal of caring for the environment. While laws related to CSR have been enacted in various jurisdictions, much CSR corporate compliance is still voluntary. So why have companies moved toward and embraced CSR? While they would likely provide a variety of reasons, the fact remains that the driving force behind these businesses — the people who run them — think it is a good thing.
By and large, no one critiques corporate interest in CSR. Many say it is a good development. No one claims that “corporations” cannot engage in CSR-related advocacy. And most of the large corporations with CSR departments are for-profit companies.
How, then, do we arrive at the curious and odd criticism of Hobby Lobby for relying on religious beliefs in its operation? There is no good answer to this. Hobby Lobby’s religious positions are the result of the same driving force producing CSR program at other companies — its owners and operators. It is ironic that the company being criticized for its challenge to the HHS mandate has voluntarily implemented generous CSR type programs, like starting its new employees at 90% above the minimum wage. Yet Hobby
Those claiming a corporation cannot have a religious identity look to be on increasingly weak ground, however, as the U.S. Court of Appeals for the Fourth Circuit recently ruled in Carnell Construction Corportation v. Danville Redevelopment and Housing Authority, No. 13-1143 (4th Cir. Mar. 6, 2014) that a corporation can have a racial identity under federal law. If the issue is whether a corporation can have an “identity” that drives its goals and priorities, what’s the difference between a “religious” and “racial” identity?
As Matt Bowman, an attorney for Conestoga Wood Specialties Corporation (which is facing the same issue as Hobby Lobby at the Supreme Court), points out: “[a] gaggle of special interest groups supporting Obamacare’s coercion is outraged at this suggestion. They profess to be shocked — shocked! — that anyone would say a family business has religious freedom. But these same groups apparently favor a legal regime that says for-profit corporations can be racial minorities and can exercise the most intimate and private constitutional “rights” to contraception and abortion. Their outrage is withheld until families in business claim to be religious.”
Hobby Lobby’s opponents know for-profit businesses are an influential social force. Scared of the prospect of not being able to smother all of society with their pro-contraceptive and pro-abortion views, Hobby Lobby’s opponents must find some distinction upon which to rest their hat — in this case it just happens to be seeking a profit. Lacking a legitimate reason to deny American small business owners the right to exercise their faith, opponents find an easier time inferring such businesses are “bad” and entitled to less protection because they seek to make money. This claim looks increasingly desperate, however, in face of the fact that the businesses promoting the CSR practices discussed above are almost all very large, for-profit corporations. And no one takes issue with that.
Few have a problem with corporations being able to provide shoes for children, supply water for those who need it, provide special attention to their environment, and ensure their suppliers are not committing human rights abuses. Neither should there be any issue with a business being run according to the faith of its owners.
March 20, 2014
On this first day of spring, the brilliant Avik Roy of Forbes Magazine asks two questions about the Affordable Care Act, commonly known as Obamacare:
First: how many people who have signed up for coverage were previously uninsured? Second: will the botched rollout and design flaws lead to even higher health insurance costs next year?
Roy suggests that health care premiums might soar by as much as 40 percent in 2015, and concludes by asking, “For those who already struggle to afford their health insurance bills, the worst is not yet over.” One of the sounds you do not hear is Tony the Tiger saying, “Grrrrr-eat!”
National Public Radio reports today that enrollment in Obamcare is “surging,” and is now over five million. That’s two million less than the White House’s original prediction of seven million by the end of the open-enrollment period, which comes on the 31st of this month.
March 20, 2014
My friend Frank invited me to watch the last basketball game between the University of Virginia and University of Maryland. The 61-year rivalry between the near neighbors ended earlier this month. University of Maryland is leaving the Atlantic Coast Conference (ACC) for the Big Ten. Frank and his pal Charlie are fanatical Maryland alums (are there any other kind?) Frank told me not to wear any U.Va. fan gear as we would have good seats — in the heart of Terrapin Country. “Wear your high school ring,” Frank said, “and we’ll pick you up at the IKEA parking lot in College Park. We wouldn’t want your car to get rolled over.” Are they always like this?
It was a great last game. Virginia and Maryland see-sawed throughout, but Maryland pulled it out 75-69 in overtime. The fans in the Comcast Center are perhaps the noisiest this side of the Seattle Seahawks. It’s been decades since I’ve taken in a college game of hoops. What a good-natured crowd it was, too. They booed one of the Virginia players mercilessly every time he held the ball. That’s because he committed to Maryland but changed to U.Va. after the Terps changed coaches. Seems reasonable enough for me.
Even though the Virginia Cavaliers came up short in that Maryland home game, they’ll always be winners in my book. Seems they take some guidance from a respected coach and a certain good book. Here’s a March Mildness story for this crazy month.
March 20, 2014
Jackie Stollfus is a very caring and happy person. But systemic lupus threatened her health, happiness, and even her life. Lupus is an autoimmune disease affecting more than 5 million people worldwide. “Lupus is my body attacking my body,” explains Jackie. “If you have a cold, your body attacks the cold. My body attacks my kidneys. It doesn’t know the difference between a cold or my kidneys or my skin or my blood, it’s attacking it.” There is no known cure, only treatment of symptoms with medication. And none of the medications worked for Jackie.
When all seemed lost, Jackie’s doctor suggested she look into the work being done by Dr. Richard Burt at the Northwestern University School of Medicine in Chicago. Jackie’s treatment involved using her own adult stem cells, which as Jackie puts it gave her “a brand new immune system.” Five years later, she’s better than ever, enjoying the outdoors with her husband Brian while looking ahead to a long, happy life—and a family.
Adult stem cells have given Lupus survivor Jackie Stollfus a better life, better health, and a chance to be a mom.
Watch Jackie’s story at Stemcellresearchfacts.org!
March 19, 2014
Sometime in the next few weeks, the U.S. Supreme Court is expected to decide whether it will hear the case of Elane Photography v. Willock. The owners of Elane Photography are Christians, and their views and beliefs are reflected in how they run their business. Yet the New Mexico Supreme Court ruled that Elane Photography violated New Mexico’s anti-discrimination law provisions regarding sexual orientation when its owners refused to agree to photograph a same-sex commitment ceremony. Elane Photography’s owners are merely asking the government to not compel them to participate in actions which violate their religious beliefs. Consequently, when the government forces them to participate in the same-sex ceremony by photographing it (with the threat of a fine if they refuse), the government is forcing and compelling Elane’s owners to speak a certain message in violation of the First Amendment.
Even supporters of same-sex marriage see the danger of the government’s position and its use of anti-discrimination law in this case. Writing in the Wall Street Journal, Eugene Volokh (professor at UCLA law school) and Ilya Shapiro (with the Cato Institute) point out that a ruling against Elane Photography here sets a dangerous precedent that allows the government to compel speech in the cause of furthering equality through powerful and broad anti-discrimination laws. The next victim may be someone quite unlike Elane’s owners. It could be “a freelance writer who declines to write a press release for a religious organization with which he disagrees.” According to the New Mexico Supreme Court’s reasoning in Elane Photography, this writer has violated anti-discrimination law because his refusal to write such a press release is discrimination based on religion, just like Elane Photography’s refusal to photograph the commitment ceremony is being viewed by the government as discrimination. Yet a photographer, writer, speaker, publisher, or other artist “must have the First Amendment right to choose which speech he creates, notwithstanding any state law to the contrary.”
As Volokh and Shapiro state, “a couple that is told by a photographer that she does not want to photograph their commitment ceremony may understandably be offended. But avoiding offense is not a valid reason for restricting or compelling speech… . The First Amendment secures an important right to which all speakers are entitled — whether religious or secular, liberal or conservative, pro- or anti-gay-marriage. A commitment to legal equality can’t justify the restriction of that right.”
Elane Photography highlights an important point — individuals with different views regarding the definition of marriage can still agree that free speech must trump “forced equality.” Indeed, the freedom from such “compelled speech” is protected by the First Amendment to the U.S. Constitution. When speech motivated by religious beliefs is forced to pass muster with the government’s censors and Americans are forced to speak a certain message under the threat of fines and force of law, all who love individual liberty and free speech (regardless of personal views) must stand up and pay attention.
March 18, 2014
A recent article in the Wall Street Journal cited the challenge of measuring college success. As college debt increases, it will likely become more important to acquire tangible measure of collegiate success. Some members of Congress and the Department of Education have weighed in with new ways to measure college outcomes.
The problem with establishing uniform measurements is that education is multi-faceted. Getting a job is not necessarily an indication of academic success. College is not designed to be a job training center, but to give students a greater understanding of the world. Education is valuable beyond the workforce in such areas as voting, training children, and morality. If a degree does not directly lead to a job, then it is not necessarily wasted. If going to college leads to a job, it does not mean the education was exceptional.
It is important to accurately assess the many benefits that college education can provide. But we should be assessing those benefits at the local level and should seek to discourage any government imposed national measurements. From No Child Left Behind to Common Core, we have learned that we must be wary of our government’s involvement in education. Keep an eye open for national collegiate success measurements and tell the federal government to keep out of the classroom.
March 17, 2014
I have been pleasantly surprised by a cable show on A&E that celebrates family and follows the activities of a large American family that runs a business. I am not talking about Duck Dynasty. Rather, it is the show that follows DD: Wahlburgers about which I write. Wahlburgers tells about the efforts of Mark, Donnie, Paul, and Alma (their mother) Wahlberg to start a restaurant franchise (Wahlburgers) that specializes in hamburgers and sandwiches. The first restaurant is located near Boston in Hingham, Mass.
Of course, Mark and Donnie Wahlberg are the actor/singer/entertainers of various art forms. Paul is the chef who produces the recipes and food. Paul also manages the restaurant(s) and lives near Boston — as does his mother. Mark lives in Los Angeles; Donnie is a New Yorker these days. All of the family members are hard-working and entrepreneurial.
It turns out that the Alma Wahlberg raised something like nine children in Dorchester, Massachusetts. Apparently, the family grew up living around or below the poverty line. That may be due to the divorce of the parents in 1982, but Alma did raise the family on a shoestring. Alma is the peacemaker and mediator who keeps the brothers working together. As one would expect from someone who raised so many children, she is practical and she knows their personalities. Her kids mind her when she tells them to get in line. Alma is definitely the Alpha Wahlberg. That said, her sons absolutely adore her and the childhood she gave them.
A&E was insightful when it placed Wahlburgers after Duck Dynasty each Wednesday evening. While the families themselves and the programs are quite different, the centrality of family lies at the core of each series. Fewer than ten Wahlburgers have been produced, so the show could go completely off the rails. I hope future episodes focus more on Alma, Paul, and the business’s development with less time on the oddball family friends. We shall see, but it is worth a look via DVR sans commercials.