The Hobby Lobby, etc. decision may look narrow but it’s not. The decision seems to have borrowed heavily from another case, but for reasons that will become clear, accepting the Hobby Lobby, etc. case for review gave the Papist court more of what they wanted.
The case that were not talking about today is Gilardi v. United States Department of Health and Human Services.
Two Catholic brothers own a Subchapter S corporation and on religious grounds, protected by the Religious Freedom Restoration Act (RFRA), objected to the entire contraception coverage mandate in the ACA. They lost the suit at the federal district court level, but prevailed at the DC Court of Appeals. US DH&HS appealed to SCOTUS and review denied.
The decision in the Gilardi Brothers case was broader than Hobby Lobby on the issue of forms of contraception under the ACA that can be denied choosing not to act on the government’s appeal allowed SCOTUS to get the desired outcome without the publicity of rendering a decision itself. But the Gilardi brothers case was less attractive in another area near and dear to the SCOTUS corporatists.
The DC Circuit had rejected standing for the Gilardi’s corporation. It took the position that a Sub-Chapter-S corporation isn’t exactly like a corporation because for income tax purposes, individual tax rates for the owners apply. Thus, as individuals, the Gilardi brothers had protections under RFRA.
As I noted yesterday in a comment, the SCOTUS Hobby Lobby decision would have been less obnoxious if Hobby Lobber were a sole proprietorship or traditional small partnership because then there would be no legal separation between the owners and the business. However, a Sub-Chapter-S corporation is a corporation. Enjoys all the legal protections of a corporation and it’s hogwash that even the income tax liabilities are no different from that of a sole proprietorship. Sub-Chapter-S corporations are legally “closely held corporations” but can have up to 100 shareholders. For a Sup-S corp with a large number of shareholders to cite “Gilardi” as grounds for not complying with the PPACA contraception mandate, all the shareholders would have to have hold the same religious objection. That would be like a religious cult.
The Hobby Lobby case permitted SCOTUS to declare that any closely held corporation with majority ownership in five or fewer hands has religious rights under RFRA. And it’s not an undue burden for the women they employ to purchase a separate health insurance policy for contraception coverages. Presumably because women a) have the needed additional funds and b) don’t mind sorting out which policy covers what services. (Am sure Scalia would appreciate being required to purchase a separate policy for health issues related to nutrition and excess weight.)
If the number of “closely held” corporations that request exemption from the PPACA contraception mandate on religious grounds is large, it will become a rubber stamp approval. Too resource intensive to fight the requests unless is clearly and unequivocally doesn’t meet the “Gilardi” or Hobby Lobby decisions or a combination of the two.
We’re still fighting this shit fifty years on because the ERA wasn’t ratified. (Some of us told ya – but too many younger women didn’t want to be associated with feminism and took the gains for granted.) The RFRA may have started out as an effort to fix the “War on Drugs” for the use of peyote in religious ceremonies by Native Americans – but that betrays unbelievable naivetee on the part of Democrats. Or no good deed goes unpunished.
So, exactly what are DC Democratic office-holders and those that hope to win in November going to do to fix this mess? (Beyond praying for retirements of members of the SCOTUS Papists.) And Citizens United. Timid, half-baked, tiny modifications aren’t going to cut it. Because full corporate citizenship and the end to “Roe” is on the horizon.
SCOTUS issues a clarification to “Hobby Lobby.”
The Supreme Court on Tuesday confirmed that its decision a day earlier extending religious rights to closely held corporations applies broadly to the contraceptive coverage requirement in the new health care law, not just the handful of methods the justices considered in their ruling.
Less sneaky but still sneaky.
Update #2
From the NYTimes: Supreme Court Order on Challenge to Contraceptive Rule
…
On Thursday, the court’s majority said all Wheaton [College in Illinois] had to do was notify the government in writing “that it is a nonprofit organization that holds itself out as religious and has religious objections to providing coverage for contraception services.”
Justice Sotomayor is furious because this order does not conform to the decision issued in “Hobby Lobby.” IOW the mighty five continue to make shit up.