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Kro-Bar posted:SCOTUS is hearing arguments in Hobby Lobby's contraception case today. Does anyone who knows more about this case have an idea of how it's likely to go? Anthony Kennedy is a LIBERTARIAN. And by that I mean he's for unlimited liberty (as long as you're a corporation) so I would be shocked if Hobby Lobby doesn't win.
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Mar 25, 2014 14:20
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Kro-Bar posted:edit: And if Hobby Lobby wins will we see big corporations everywhere suddenly getting born again in order to save a few bucks on their insurance bill? I don't know how it looks from an actuarial standpoint but medically speaking, pregnancy, childbirth and the subsequent healthcare costs of the baby are enormously more expensive than birth control coverage over the same time period so I doubt many companies without some religious point to prove are going to be interested in doing so.
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Mar 25, 2014 14:26
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Discendo Vox posted:I've studied and written a bit about the general issue of science in the courtroom in my work and career. Even before you get to the (massive) problems of judicial and legal scientific illiteracy and dueling experts, scientific information in the courtroom is inherently fraught. I would imagine the latter situation involving fact finders being required to choose the "true" scientific assertion so that they can decide what "actually" happened (for the purposes of litigation) is an inescapable problem.
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Mar 25, 2014 14:34
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This is Scalia from the Smith case dealing with right of Native American people to smoke Peyote as part of their religion:quote:The government's ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development. We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate It's going to be interesting to see how many knots he has to twist himself into in order to find for Hobby Lobby...
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Mar 25, 2014 14:39
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Looking forward to seeing how SCOTUS tries to screw this up
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Mar 25, 2014 14:49
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mcmagic posted:This is Scalia from the Smith case dealing with right of Native American people to smoke Peyote as part of their religion: "Corporations, on the other hand, can have religious beliefs that excuse them from compliance" , boom!
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Mar 25, 2014 14:50
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Kro-Bar posted:edit: And if Hobby Lobby wins will we see big corporations everywhere suddenly getting born again in order to save a few bucks on their insurance bill? This is my question, too. I'm really curious how a court could test the sincerity of a corporation's "sincerely held belief." Suppose Koch Industries decides to get into manufacturing Kosher food. Could the Koch brothers claim that, while they have no opinion on Judaism, their corporation has deeply Jewish principles and intends to attend a Bar Mitzvah on it's 14th anniversary? If SCOTUS goes that route, I don't see why a corporation should be limited to human religions. A human could claim to follow an arbitrarily-convenient faith. But a judge wouldn't believe that. There's a limit on a human's ability to arbitrary set their own actual beliefs. In contrast, a corporation’s beliefs would be set by some board-motion. And in this scenario, we're not testing the sincerity of the board's belief. So a "The company is Jewish now" memo would be exactly as sincere as a "The company is Mormon now" memo or a "The company is a member of the Church of the Divine Anti-Tax Charter" memo. The only alternative is for SCOTUS to say something like, "this corporation is a separate entity from its individual members, except, not really." And that would force them to invent all kinds of judge-made law. What's the formula for aggregating shareholder's beliefs? Is a single apostate enough? Or is the true-believer threshold just 51% of common stock? How does that pass through holding companies and trusts?
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Mar 25, 2014 14:56
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falcon2424 posted:This is my question, too. I'm really curious how a court could test the sincerity of a corporation's "sincerely held belief." My religion says I can't pay more than in 10% in taxes. What now Scalia? Because using fairytales to dictate public policy is hilarious.
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Mar 25, 2014 15:00
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mcmagic posted:This is Scalia from the Smith case dealing with right of Native American people to smoke Peyote as part of their religion: Considering that Congress passed the Religious freedom restoration act in reaction to the decision in Smith, and that it violates the RFRA is the main basis of Hobby Lobby's argument, probably not too many knots.
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Mar 25, 2014 15:02
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mcmagic posted:This is Scalia from the Smith case dealing with right of Native American people to smoke Peyote as part of their religion: Two totally different things.
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Mar 25, 2014 15:06
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mcmagic posted:My religion says I can't pay more than in 10% in taxes. What now Scalia? Because using fairytales to dictate public policy is hilarious. The RFRA only grants exceptions if the law is not the least restrictive means of serving a government interest. Things like taxes are almost certainly going to pass that, whereas Hobby Lobby at least has a plausible argument that the birth control mandate does not.
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Mar 25, 2014 15:07
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esquilax posted:Considering that Congress passed the Religious freedom restoration act in reaction to the decision in Smith, and that it violates the RFRA is the main basis of Hobby Lobby's argument, probably not too many knots. Stepping back from the merits of the specific case, how should SCOTUS deal with a situation where a law implicitly depends on a formula (in this case, defining a 'religious' company) that isn't provided by statute? That has to be something that's come up before. I've got the vague sense that these sorts of ambiguity invite the executive branch to invent regulations. But I don't remember seeing that referenced in any of the earlier decisions I read for this case.
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Mar 25, 2014 15:10
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esquilax posted:The RFRA only grants exceptions if the law is not the least restrictive means of serving a government interest. Things like taxes are almost certainly going to pass that, whereas Hobby Lobby at least has a plausible argument that the birth control mandate does not. It can't be just a government interest can it? I mean if my religion calls for me to walk up to random people on the street and punch them in the face every other Thursday, those people's right to not be punched in the face is competing with my religious freedom and their right would win in court I assume...
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Mar 25, 2014 15:12
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mcmagic posted:It can't be just a government interest can it? I mean if my religion calls for me to walk up to random people on the street and punch them in the face every other Thursday, those people's right to not be punched in the face is competing with my religious freedom and their right would win in court I assume... The government has a legitimate interest in protecting other people from physical harm and the least restrictive way of going that still prevents you from punching people in the face.
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Mar 25, 2014 15:16
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mcmagic posted:It can't be just a government interest can it? I mean if my religion calls for me to walk up to random people on the street and punch them in the face every other Thursday, those people's right to not be punched in the face is competing with my religious freedom and their right would win in court I assume... "Preventing people from getting punched in the face" is a compelling government interest so no one is exempt from the requirement that you not punch people in the face. Hobby Lobby is arguing that mandating birth control does not serve a compelling government interest for reasons x, y, and z, which means they should be exempt from that requirement.
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Mar 25, 2014 15:16
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esquilax posted:The RFRA only grants exceptions if the law is not the least restrictive means of serving a government interest. Things like taxes are almost certainly going to pass that, whereas Hobby Lobby at least has a plausible argument that the birth control mandate does not. What bugs me about the case is that I think there's a sane argument for corporations being able to get some kind of religious exemptions. Suppose (to avoid the specific merits of birth control) the regulation were something like, "certain classes of stores must be open on Saturday mornings." To keep this from being totally arbitrary, we could invent a mildly compelling interest like, 'this ensures that teachers can buy classroom supplies'. That regulation would effectively deny religious Jews the ability to come together an open a business. And one of the points of the RFRA is to prevent situations where religious-minorities get shut out of participation in society. The whole situation seems like a mess.
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Mar 25, 2014 15:21
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esquilax posted:"Preventing people from getting punched in the face" is a compelling government interest so no one is exempt from the requirement that you not punch people in the face. Hobby Lobby is arguing that mandating birth control does not serve a compelling government interest for reasons x, y, and z, which means they should be exempt from that requirement. If all they have to do is prove that the government has a less restrictive means available of serving this government interest (which is, in this case, ensuring that individuals have birth control available), wouldn't taxpayer-funded birth control for everyone fit the bill? Not that they would actually do that, but the point is that they have the ability to do so, and if they did, it would accomplish their goal without forcing Hobby Lobby to do anything. Seems pretty open and shut to me.
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Mar 25, 2014 15:22
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falcon2424 posted:What bugs me about the case is that I think there's a sane argument for corporations being able to get some kind of religious exemptions. Are religious Jews forbidden from hiring non-Jews?
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Mar 25, 2014 15:24
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falcon2424 posted:What bugs me about the case is that I think there's a sane argument for corporations being able to get some kind of religious exemptions. But in that case, it's hard to make the argument that allowing a store to close on saturdays causes harm to another person which is the key point in this case in that Hobby Lobby wants to impose their fundamentalism on their employees.
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Mar 25, 2014 15:24
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falcon2424 posted:What bugs me about the case is that I think there's a sane argument for corporations being able to get some kind of religious exemptions. Go back and read Citizens United. Corporations aren't actually people any more or less since that case (they were always "artificial persons" under law) but the gist of it was that individuals who own that corporation don't lose their rights just because they walked under a roof they own and use for profit.
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Mar 25, 2014 15:31
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This poster loves police brutality, but only when its against minorities!
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falcon2424 posted:What bugs me about the case is that I think there's a sane argument for corporations being able to get some kind of religious exemptions. They decided a very similar case in Braunfeld v Brown. The court ended up saying that the restriction was okay because there was an overriding government interest. The really important thing for Hobby Lobby's argument is that closing the store on Saturday was a protected exercise of religion - just because it was commercial activity conducted for-profit does not mean that it automatically became non-religious. The important thing to note for everyone else is that whether or not it is a protected exercise of religion can be easily overridden.
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Mar 25, 2014 15:38
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StarMagician posted:If all they have to do is prove that the government has a less restrictive means available of serving this government interest (which is, in this case, ensuring that individuals have birth control available), wouldn't taxpayer-funded birth control for everyone fit the bill? Yes yes, and the government could offer everyone free blood transfusions too so requiring a Jehovah's Witness to include it on the company health plan is an undue burden. Really the government could just give everyone a job so I guess labor law should be thrown out whenever someone has a religious objection. Sure the government doesn't do that and it would never happen, but they could so open and shut cases all around! Edit: Wait aren't you super-Republican? Are you really proposing universal birth control as the less-intrusive option? VitalSigns fucked around with this message at 15:56 on Mar 25, 2014 |
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Mar 25, 2014 15:43
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falcon2424 posted:I agree that the concepts are different. And I agree that judges are getting better at recognizing the difference and this is good. I'd need you to unpack empirical-truth and logical-truth a bit more to be sure of my position, but I believe that the justice system relies on a broad and imperfect claim of the union of those two sets. There are also difficulties because many scientists also hold a naive view of the strength of their work, giving it a similarly categorically strong claim to truth.
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Mar 25, 2014 15:52
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Obviously this isn't the thread for this but it's just loving AMAZING that crazy fundies who think that abortion is literal murder are going to court to try to get a regulation thrown out that would UNDOUBTEDLY reduce the number of abortions in this country.
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Mar 25, 2014 16:01
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DeusExMachinima posted:Go back and read Citizens United. Corporations aren't actually people any more or less since that case (they were always "artificial persons" under law) but the gist of it was that individuals who own that corporation don't lose their rights just because they walked under a roof they own and use for profit. I definitely had Citizens United in mind. I agree with idea that citizens shouldn't lose rights merely because they work together. And I liked the line in Stewards dissent in Braunfeld (thanks esquilax). quote:Pennsylvania has passed a law which compels an Orthodox Jew to choose between his religious faith and his economic survival. That is a cruel choice. It is a choice which I think no State can constitutionally demand. For me this is not something that can be swept under the rug and forgotten in the interest of enforced Sunday togetherness. I think the impact of this law upon these appellants grossly violates their constitutional right to the free exercise of their religion. So, I'm really sympathetic to the idea that citizens should be able to form ideologically-influenced groups. My issue with the status quo is that we're letting corporations claim to be entirely separate from their owners and also entirely an extension of their owners. We should really force organizations to pick one side of the fence or another. My ideal solution would be to have congress simply codify 'closely held corporations' as their own 'kind' of thing. I'd force them to be directly controlled by humans in the same way that non-profits have to be controlled by humans. This would let religious people participate in society. At the same time, it would fix the dumber issues that come along with pretending that C-Corps have ethical beliefs. Most corporations are just accounts with certain tax-advantages and limited-liability protections. Claiming they have opinions is like claiming that my Roth-IRA has a religion.
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Mar 25, 2014 16:12
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esquilax posted:They decided a very similar case in Braunfeld v Brown. The court ended up saying that the restriction was okay because there was an overriding government interest. This made me think, and I'm sure it's come up, if we might see any arguments about how "religious" Hobby Lobby actually is when it comes to conducting their business. Do they sell "heathen" toys? Or does carrying Warhammer 40k models mean they don't really take the tenants of their faith seriously when it means they can make money? Does having mandatory meetings all day on a Sunday mean they don't actually care about people attending church/keeping the Sabbath holy when there is work to be done? These a terrible arguments but just as an example. Would some kind of behavior that clearly goes against their proclaimed faith be grounds for denying them the right to claim "religious faith" when it comes to the birth control mandate? Like some sort of "fair weather" clause that would prevent you from just claiming faith to save you some money when you also ignore it to make money?
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Mar 25, 2014 16:23
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falcon2424 posted:So, I'm really sympathetic to the idea that citizens should be able to form ideologically-influenced groups. My issue with the status quo is that we're letting corporations claim to be entirely separate from their owners and also entirely an extension of their owners. We should really force organizations to pick one side of the fence or another. That is, in my opinion, the heart of the problem. If my corporation makes faulty seatbelts, it's the corporation's responsibility and the corporation's money that gets taken in wrongful death lawsuits, not mine. If my corporation dumps toxic waste, it's the corporation's responsibility and the corporation's money that gets taken in environmental cleanup lawsuits, not mine. But then if the corporation's money is required to be spent on health care it's suddenly the same as making me spend my money on health care? Talk about having your cake and eating it too. Also if you form an ideologically influenced group you can be a non-profit and operate under those privileges and restrictions. For-profit corporations should not get the privileges of a non-profit without the restrictions. More having your cake and eating it too BS.
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Mar 25, 2014 16:25
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Though it won't happen, I still think the simplest divider that's easily justiciable is this: if you think you deserve to be shielded from the results of your corporate actions (I.e. limited liability), then you can't claim there's no dividing line between your justifications for action and corporate justifications (corporate beliefs). If a corporation is an extension of your beliefs, then remind me why you deserve to be insulated from judgments against the corporation being held against you personally. Put your money where your mouth is, basically.
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Mar 25, 2014 16:28
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quote:
Not sure this tells us much but it's the first update i've seen.
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Mar 25, 2014 16:29
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One of the protestors in front of SCOTUS today.
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Mar 25, 2014 16:44
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Joementum posted:One of the protestors in front of SCOTUS today. Yes, because abortion totally just appeared under Obama. And it's been made mandatory. I don't really get what this sign is supposed to be saying other than "BE AFRAID!".
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Mar 25, 2014 16:47
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Crain posted:Yes, because abortion totally just appeared under Obama. And it's been made mandatory. I don't really get what this sign is supposed to be saying other than "BE AFRAID!". You nailed it.
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Mar 25, 2014 16:52
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Joementum posted:One of the protestors in front of SCOTUS today.  Oh look, more assholes outside SCOTUS today.
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Mar 25, 2014 16:54
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Crain posted:Yes, because abortion totally just appeared under Obama. And it's been made mandatory. I don't really get what this sign is supposed to be saying other than "BE AFRAID!". Remember: the trial, and that sign, isn't about abortion. It's about birth control. And look who else showed up. 
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Mar 25, 2014 16:55
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I have an additional argument against the idea that C-Corps have ideologies. I haven't seen it before, so I'm wondering if it's novel or just stupid. But, basically, the combination of Citizens United and a ruling that corporate boards can (as representatives of a group of citizens) set corporate ideologies could have a horrible effect on fiduciary duty obligations. The scenario I'm imagining is this: I run a non-profit (or super-pac) that's supporting some political stance. I have $1M of cash to spend on lobbying. I notice a publicly-traded corporation with a market capitalization (and net equity) of around $1.9m. Instead of spending my $1M directly, I buy ~51% of the corporation. Then I take control of the corporation's board. Next, I claim that the corporation shares my non-profit's ideology. It really cares about my issue. So I, and my board, vote to screw the minority shareholders. We liquidate the corporations $1.9M in assets and spend all of them lobbying for my particular ideology. This effectively steals $900,000 of other people's money. --- Under current laws, I think the board could get sued for a breach of fiduciary duty. The argument would be that the corporation existed to further the shareholder's interests. But, I think a sufficiently pro-religion argument could totally undermine that. After my take over, the corporation 'legitimately' adopted some ideological goal. And the board's actions furthered that interest.
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Mar 25, 2014 16:57
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Wow, someone mentions Hobby Lobby and the thread blows up. One side note and then I want to address the science issue from last page.mcmagic posted:This is Scalia from the Smith case dealing with right of Native American people to smoke Peyote as part of their religion: That decision predates the RFRA, which was passed precisely to overturn that exact Supreme Court opinion. See: O Centro Espirita for the current rule on religious drug use. Back to the earlier topic on science in the court room: Discendo Vox posted:I've studied and written a bit about the general issue of science in the courtroom in my work and career. Even before you get to the (massive) problems of judicial and legal scientific illiteracy and dueling experts, scientific information in the courtroom is inherently fraught. I think Karl Popper has done a great diservice to science by promoting his falsification theory of the philosophy of science. While falsification and falsifiability are both very important to the progress of science and stating testable hypotheses, claiming that falsification is the central goal of scientific truth finding really misrepresents how science is conducted on a day to day basis. As an example, the discovery of the 854th exoplanet was an important finding worthy of publication, but not because it falsified the hypothesis that there are exactly 853 exoplanets in the Universe. The bigger problem courts get into is the different ways the legal and scientific professions value precedent. In science, a previous finding is only as good as the most recent one, and once new studies are advanced the previous theories can be cast by the way side. In law, however, precedent is king. When you have a scientific analysis such as the AFLP product rule for calculating probabilities of a DNA match that has been thoroughly discredited and even abandoned by the FBI, a DA can simply cite a case that said the technique passes the Frye standard, and it's in.
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Mar 25, 2014 17:01
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Stultus Maximus posted:Are religious Jews forbidden from hiring non-Jews? Some Jewish operated companies shut down their websites on the sabbath. It's not a matter of staffing to them.
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Mar 25, 2014 17:01
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duz posted:Some Jewish operated companies shut down their websites on the sabbath. It's not a matter of staffing to them. Not just Jews. McKee Foods (Little Debbie) is run by Seventh Day Adventists. Everything shuts down at sunset on Friday, even delivery trucks on the road. Nothing happens until sundown Saturday.
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Mar 25, 2014 17:09
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duz posted:Some Jewish operated companies shut down their websites on the sabbath. It's not a matter of staffing to them. Also if the argument is that not just the owners, but the business/corporation itself is religious, that doesn't solve anything by hiring non-jews. Since the corp would still be violating "its" own religious morals by being open on Saturday.
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Mar 25, 2014 17:23
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KernelSlanders posted:I think Karl Popper has done a great diservice to science by promoting his falsification theory of the philosophy of science. While falsification and falsifiability are both very important to the progress of science and stating testable hypotheses, claiming that falsification is the central goal of scientific truth finding really misrepresents how science is conducted on a day to day basis. As an example, the discovery of the 854th exoplanet was an important finding worthy of publication, but not because it falsified the hypothesis that there are exactly 853 exoplanets in the Universe. Popperian falsificationism is a prescriptive ideal for scientific claim structures, not a pure descriptive. Its contributions were essential for the development of science as a distinct discourse and field of inquiry, as prior to his contribuitons science "as conducted on a day to day basis" was frequently horrible, for example Freud. Your example confuses the published outcomes of the scientific discourse and novelty, (importance) and epistemological strength- the location of evidence for a new exoplanet is published for different reasons than its reliance on a falsification system, but pursuit of a deductive framing to the evidence and assertion of the new planet is necessary to its relative epistemological strength. Descriptive and narrative theories of scientific conduct leave themselves open to abuse, which is exactly what happened as Kuhn's publications have gained traction. To put it differently, the pursuit of structural falsificationism is now latent within the scientific discourse as a necessary element of scientific truth construction, but it is not sufficient to produce publication. The mismatch between epistemic structures and the outcomes of the scientific discourse through publication is basically the thing I'll be spending my career attempting to correct. KernelSlanders posted:The bigger problem courts get into is the different ways the legal and scientific professions value precedent. In science, a previous finding is only as good as the most recent one, and once new studies are advanced the previous theories can be cast by the way side. In law, however, precedent is king. When you have a scientific analysis such as the AFLP product rule for calculating probabilities of a DNA match that has been thoroughly discredited and even abandoned by the FBI, a DA can simply cite a case that said the technique passes the Frye standard, and it's in. I don't think this is accurate. Frye requires that the theory in question still be accepted within the field to apply- a responsible adjudicator or opposing counsel would not let the DA apply the outmoded method. It's important to note that the Frye standard has been superseded in many jurisdictions by Daubert, which contains both falsificationist and, as a matter of necessity, social descriptive elements. The adjudicator is not able to evaluate the full logical structure of the assertions of the scientific discourse and apply them within the facts of the case (scientists often can't do that, after all!), so field consensus acts as a poor substitute. In both circumstances, however, the fundamental problem is that the court must act as the gatekeeper of scientific truth, so the court is reliant on an imperfect understanding of the already imperfect scientific field. The product of the adjudication, as previously stated, acquires a latent legal truthfulness that science does not claim. This creates problems even without the precedence example you provide.
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Mar 25, 2014 17:40
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