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You are here: Home / Politics / Activist Judges! / Religious Liberty For Everyone

Religious Liberty For Everyone

by | 156 Comments

This post is in: 

I have a feeling that we’re going to see a bunch of this stuff, and I’m going to snicker every time:

Lawyers for two Guantanamo Bay detainees have filed motions asking a U.S. court to block officials from preventing the inmates from taking part in communal prayers during the Islamic holy month of Ramadan. The lawyers argue that – in light of the Supreme Court’s recent Hobby Lobby decision – the detainees’ rights are protected under the Religious Freedom Restoration Act (RFRA).

The motions were filed this week with the Washington D.C. district court on behalf of Emad Hassan of Yemen and Ahmed Rabbani of Pakistan. U.K.-based human rights group Reprieve said both men asked for the intervention after military officials at the prison “prevented them from praying communally during Ramadan.”

During Ramadan, a month of prayer and reflection that began last weekend, Muslims are required to fast every day from sunrise to sunset. But what is at issue in this case is the ability to perform extra prayers, called tarawih, “in which [Muslims] recite one-thirtieth of the Quran in consecutive segments throughout the month.”

U.S. Army Lt. Col. Myles B. Caggins III, a spokesman for the Department of Defense, told Al Jazeera on Friday that the “Defense Department is aware of the filing,” and that the “government will respond through the legal system.”

The detainees’ lawyers said courts have previously concluded that Guantanamo detainees do not have “religious free exercise rights” because they are not “persons within the scope of the RFRA.”

But the detainees’ lawyers say the Hobby Lobby decision changes that.

“Hobby Lobby makes clear that all persons – human and corporate, citizen and foreigner, resident and alien – enjoy the special religious free exercise protections of the RFRA,” the lawyers argued in court papers.

BTW- remember when a few people insisted I was a know-nothing asshole because I kept repeating that the court is controlled by partisan hacks? I’m still a know-nothing asshole, but I’m not the one who was dead wrong on that issue.

Reader Interactions

156Comments

  1. 1.

    Corner Stone

    But Cole, it was a very narrow ruling. I’m sure the SCOTUS FIVE will ably find their way to ruling these individual persons do not qualify for equal treatment under the law.

  2. 2.

    PurpleGirl

    Be careful what you wish for, you may get it. And you definitely won’t like the unintended consequences.

  3. 3.

    flukebucket

    And Newsmax says…..Rick Warren Joins Leaders Seeking Religious Exemption on LGBT Order

  4. 4.

    low-tech cyclist

    @Corner Stone:

    I’m sure the SCOTUS FIVE will ably find their way to ruling these individual persons do not qualify for equal treatment under the law.

    Well of course, they’re merely flesh and blood. It isn’t like they’re corporations or anything.

  6. 6.

    Kropadope

    Silly commenters, prisoners aren’t people. If they were, they would be incorporated.

  7. 7.

    low-tech cyclist

    Scalia and Kennedy both turn 80 in 2016. Wonder how long they’ll try to hang in there if Hillary gets elected President that November?

  8. 8.

    Randy P

    Elsewhere (OK, I admit it was at the GOS) I’ve seen commentary to the effect that the “corporate veil” that shields corporate owners from the liabilities of the corporation has now been torn down. And that a lot of corporate lawyers filed an amicus brief asking the Court NOT to rule in favor of Hobby Lobby for exactly that reason. Speaking of unintended consequences.

    Any comment on that issue from our resident legal scholars?

  10. 10.

    Roger Moore

    @Corner Stone:

    I’m sure the SCOTUS FIVE will ably find their way to ruling these individual persons do not qualify for equal treatment under the law.

    It’s very simple. They’ll just rule that Muslims are “so far inferior that they had no rights which the white man Christian was bound to respect.”

  11. 11.

    BGinCHI

    @low-tech cyclist: Exactly. Unless the GOP can figure out a way to win the Presidency, those fuckers are going to have to stay alive a long time.

    More bacon, Justice?

  13. 13.

    James E. Powell

    remember when a few people insisted I was a know-nothing asshole because I kept repeating that the court is controlled by partisan hacks?

    No, I don’t. And I don’t know how anyone could dispute that charge after Bush v Gore.

  14. 14.

    Botsplainer

    The SCOTUS 5 are coming dangerously close to assuming great power unto themselves, all to serve the 1%. For an example of what happens when you unbalance your checks and balances, see what happened in Honduras.

    http://upsidedownworld.org/main/honduras-archives-46/4085-constitutional-death-spiral-in-honduras

    How does a constitution die?

    In Honduras, it started with a coup. In June 2009, the military forcibly removed President José Manuel Zelaya Rosales from the country. They later claimed to be acting on a warrant issued by Supreme Court justice Tomás Arita. The army’s actions were given a veneer of legitimacy by the Honduran Congress. It voted for the head of Congress to become the new president, ushering in the de facto regime of Roberto Micheletti.

    Fast forward to January 2013: the Chief Justice of the Honduran Supreme Court, Jorge Alberto Rivera Avilés, is unable to seat a panel of five justices, from among the 15 justices on the court, to review an appeal of the constitutionality of a law passed by the Congress. The reason? The law under review allowed Congress to remove four justices serving on the Supreme Court itself. The four people appointed to replace them, and a majority of the justices who were not dismissed and still served on the court, recused themselves from hearing the case because virtually everyone either was directly involved or had expressed an opinion in support of the dismissed justices.

    For anyone trying to understand Honduras by comparing it to the US constitutional model, the situation there must seem virtually unintelligible. The modern Honduran constitution, ratified in 1982, calls for the familiar division of power between three branches of government: the legislative, executive, and judicial. Congress makes laws; the president and executive officers carry out policies authorized under the law; and the Supreme Court serves to assess when laws are passed that infringe on the guarantees of basic rights enshrined in the Constitution.

    However, Honduran governance lacks some fundamental checks and balances necessary to maintain the balance among these branches. The Supreme Court is appointed by the legislative branch– the same branch that creates the laws whose constitutionality the court is charged with judging. Supreme Court justices are appointed for terms of seven years, from a list proposed by a committee representing a wide range of formally recognized social and religious organizations. In practice, the candidates for Supreme Court appointments are politically indebted to those who nominated them and, especially, to the Congress that appointed them.

    The congressional role in selecting Supreme Court justices is intended to limit the executive power. In that, it certainly worked: the executive branch of the Honduran government is much weaker than the legislative. Where presidents can serve a single four-year term, congress members can be, and are, re-elected over and over. Congress has the authority to approve the national budget, and so to constrain executive action. And it is congress that appoints the Supreme Court, now beholden to Congressional power. It would take a brave justice to rule that the laws enacted by the patrons who put the justices in office are unconstitutional.

    The unbalancing of power among the three branches illustrates an essential problem with the Honduran constitution itself, characterized in 2009 by former Costa Rican President Oscar Arias, attempting to negotiate an end to the crisis that followed the coup, as “the worst in the entire world”. It has been amended over and over due to a procedural peculiarity. With the exception of a few constitutional articles that are “set in stone” (unchangeable), everything else in the Constitution is open to Congressional tinkering. No wide referenda are required to ratify changes Congress proposes to the Constitution: just as long as the same change is passed in two consecutive sessions of congress, it is in. Furthermore, with re-election virtually locked in by a party system that controls who gets nominated for office, the members of a new session of congress will almost always agree with their predecessors, because they will mostly be the same people.

    Among the many changes the Honduran Congress has made to the Constitution was one in particular, inserted in 2002 and reiterated by Congress in 2004, that granted itself the right to interpret the Constitution. That peculiar insertion, needless to say, co-opts the place of the Supreme Court in the division of labor envisaged in the three branch model of government. The Honduran Supreme Court declared the proposed change unconstitutional in 2003, a violation of constitutional prohibitions against changing the form of government. In a fit of pique, Congress has refused to allow that decision to be formally published. If the court’s decision were a piece of congressional legislation, lack of publication would mean it was not in force. Supreme Court decisions, however, don’t need to be published to be effective. Still, absent someone bringing a case to the court based on the changed language, it remains in the Honduran constitution, letting the Congress act as if it has some of the powers originally granted to the Supreme Court in the Constitution.

    What does this lead to? Among other things, to a court that is beholden to Congress for its very existence producing a post-facto rationalization of the forcible removal of a president from office, as well as a ratification of the usurpation of power by a member of that same Congress. That kind of acquiescence sets up an expectation on the part of the Congress: the Court exists as a partner, not as a separate office balancing the exercise of power.

  15. 15.

    dedc79

    @Randy P: I wouldn’t hold my breath. I see the rhetorical point (and it’s a good one) but the sad reality is that this court will continue to give corporations the legal benefits of incorporation (e.g. shielding from personal liability) even while granting them the protections of personhood in other contexts such as “religious freedom.”

  16. 16.

    Corner Stone

    It would be a lot easier for the court if these individuals were just females. The fact that they are males makes ruling against them a little tricky, but I’m sure their Muslimishness will provide them with the appropriate level of inferiority such that the SCOTUS can keep from hearing any future challenge on this.

  17. 17.

    Belafon

    @low-tech cyclist: I know lots of people like to cry “if the Democrat is going to give me a good reason to vote, then why should I.” The answer right there is fixing the SCOTUS.

  19. 19.

    Roger Moore

    @Randy P:

    Elsewhere (OK, I admit it was at the GOS) I’ve seen commentary to the effect that the “corporate veil” that shields corporate owners from the liabilities of the corporation has now been torn down.

    I suspect that’s an exaggeration. My suspicion is that the most it will do is make it easier to pierce the corporate veil if the corporation has tried to take advantage of the ruling. I don’t see why it would affect companies that don’t demand to be treated as extensions of their owners’ lives.

  20. 20.

    flukebucket

    Will Halbig v. Sebelius really allow the courts (depending on their ruling) to destroy Obamacare?

  21. 21.

    Corner Stone

    @Kropadope: She’s awful! Did you know she’s been shitting all over President Obama? The WSJ reliably told me so.
    I think I’ll just sit out 2014 and 2016.

  22. 22.

    aimai

    @Roger Moore: @Roger Moore: Well, I think the argument is that someone is going to sue a corporation’s owners/stockholders and argue that they can’t shelter behind the corporate veil because of Hobby Lobby. Can someone bring a wrongful death suit against the owners of a corporation which permitted a worker to die on the grounds that the veil is no longer absolute? I hope so.

  23. 23.

    cmorenc

    @low-tech cyclist:

    Scalia and Kennedy both turn 80 in 2016. Wonder how long they’ll try to hang in there if Hillary gets elected President that November?

    The oldest serving justice among the 112 total justices who have served as Supreme Court Justices over the entire history of the United States was Oliver Wendell Holems Jr., who retired two months shy of his 91st birthday, with Justice John Paul Stevens second at age two months past his 90th birthday.

    If turning 90-ish is the normal historical upper limit for retirement, unfortunately Scalia and Kennedy would still only be 88 at the end of a hypothetical two-term Hillary Clinton presidency. Now maybe Kennedy might be of a mind to retire and putter in his garden or whatever before then, but Scalia strikes me as someone who would rather hang on, terminally sick in bed at a hospice, than retire while a democrat is President and can appoint his successor.

  24. 24.

    JPL

    @flukebucket: Health Insurance will become unaffordable for many without the subsidies. It doesn’t really matter what the D.C. circuit court decides. It will be decided by the Supreme Court. Roberts will say it’s an easy congressional fix so, yes, it will kill Obamacare.

  26. 26.

    Botsplainer

    @Roger Moore:

    I suspect that’s an exaggeration. My suspicion is that the most it will do is make it easier to pierce the corporate veil if the corporation has tried to take advantage of the ruling. I don’t see why it would affect companies that don’t demand to be treated as extensions of their owners’ lives.

    Won’t make a difference. The SCOTUS 5 are corporate tools.

  27. 27.

    JPL

    @Botsplainer: The President already lost the ability to make recess appointments and if Boehner proceeds with his lawsuit, then there will be no more signing statements.

  28. 28.

    James E. Powell

    @Randy P:

    The liability of a corporation is limited to the corporation’s assets. Under certain very limited circumstances liability may attach to the corporation’s shareholders. That’s all that is meant by piercing the corporate veil.

    I don’t see the Hobby Lobby decision having any impact on that.

  31. 31.

    Steve in the ATL

    @Roger Moore:

    My suspicion is that the most it will do is make it easier to pierce the corporate veil if the corporation has tried to take advantage of the ruling.

    With this court? Not a chance.

  32. 32.

    JPL

    @raven: I agree that I might have exaggerated. The President will still be able to issue a signing statement that says good job white guys.

  33. 33.

    Schlemizel

    JC – I am not surprised that you had been called a know nothing asshole here. Shit, thats pretty much the same as “good morning” around the ol BJ corral. I seriously doubt anyone was stupid enough to call you that over pointing out the obvious about the current court. Nobody could honestly think anything else since at least 1999.

    If you could be so kind as to name nyms please, I know I’d like to point & laugh at them and believe many others here would too.

    And, just to keep thing on a normal plain, Cole you are a know nothing asshole, welcome to the club.

  34. 34.

    Roger Moore

    @JPL:

    Corporations are people so why can’t the owners, personally be tried for negligence.

    You have that backward. The whole idea of corporate personhood is that the corporation is a legal person capable of doing whatever natural people are capable of that is necessary to carry out their legal purpose. That means that when the corporation does something wrong, it is a legal person for purposes of answering the lawsuit; you have to sue the corporation, not the shareholders.

  35. 35.

    srv

    I don’t see how this works, Gitmo isn’t a state. Unless Cuba was covered by the RFRA.

  37. 37.

    kindness

    C’mon. The Supreme Court 5 have clearly explained that there is Religious liberty for Corporations so long as they want and act Catholic.

  38. 38.

    kc

    @Randy P:

    Elsewhere (OK, I admit it was at the GOS) I’ve seen commentary to the effect that the “corporate veil” that shields corporate owners from the liabilities of the corporation has now been torn down.

    I’ve been idly wondering about that myself. The whole point of forming a corporation is to form an entity that is separate from you, the human person. I haven’t read the Hobby Lobby decision yet, but the concept behind it certainly seems like something a plaintiff’s lawyer could exploit.

  39. 39.

    Roger Moore

    @Steve in the ATL:
    As I said: that’s the most it will do. There’s no plausible legal argument for Hobby Lobby completely eliminating the corporate veil in the general case, so the most it could do is eliminate it for corporations that actually avail themselves of the exception.

  40. 40.

    FlipYrWhig

    @JPL: I say we test whether “corporate persons” have the whole gamut of Bill of Rights protections. Quarter some troops in their houses, make them testify against themselves, try them before juries not comprised solely of other corporations, inflict cruel and unusual punishments on them, the whole shebang.

  41. 41.

    James E. Powell

    @JPL:

    Corporations have been persons for constitutional purposes since Santa Clara County v. Southern Pacific R. Co., 118 U.S. 394 (1886), if not before then. Neither that decision nor any of the many decisions following and applying it has expanded a shareholder’s liability for the corporation’s liabilities.

  42. 42.

    shelley

    @flukebucket: @flukebucket:

    And in another headline, Issa is still fulminating over the IRS ‘scandal.’ Sorry, Bub, the wingnuts have temporarily moved on. The outrage du jour is all the illegal kids coming over the border.

  47. 47.

    FlipYrWhig

    @James E. Powell: But that former concept of “personhood” made the corporation a separate entity from its owners, and this decision seems to suggest that corporate personhood is _linked_ to its owners. The new phenomenon isn’t corporate personhood, it’s the entanglement of corporate and owner personhood via the concept of “religious freedom.” (IANAL disclaimers go here.)

  48. 48.

    catclub

    @low-tech cyclist:

    Wonder how long they’ll try to hang in there if Hillary gets elected President that November?

    8 or 9 years.

    Once you get to 80, getting to 90 is not some outlandish possibility.

  49. 49.

    catclub

    @FlipYrWhig:

    it’s the entanglement of corporate and owner personhood

    entanglement – quantum corporate personhood.

    Kind of like the VP office as part of no branch of government.

  50. 50.

    FlipYrWhig

    @catclub: I wrote somewhere else that I’ve heard of “S Corporations” but didn’t realize the S stood for Schrodinger.

  51. 51.

    Omnes Omnibus (the first of his name)

    @kc: I’ve been beating the pierce the corporate veil drum for a while now. Every suit filed against any closely held corporation that tries to use this ruling should name the corporate owners personally as defendants.

  52. 52.

    Roger Moore

    @kc:

    Others disagree.

    But they don’t have a majority on the Supreme Court. The current right wing 5 aren’t going to rule that Hobby Lobby invalidates the corporate veil. No way, no how. As long as they’re still around, that isn’t going to happen. If the Supreme Court changes its composition in a way that makes Hobby Lobby an attack on the corporate veil, Hobby Lobby itself is likely to be overturned fairly quickly.

  54. 54.

    kc

    Edited because double post. I may need to have my posting privileges rescinded until I can learn how to hit the “Enter” key properly.

  55. 55.

    burnspbesq

    You are a know-nothing asshole, and no combination of Supreme Court decisions will ever change that.

    Explain to us all why the decision in Hobby Lobby is (or isn’t) a necessary condition to the filing of this action. This oughta be a laff riot.

  58. 58.

    Omnes Omnibus (the first of his name)

    @Roger Moore: Those lawsuits will gum up the system for quite a while on their way up to the Court. You have to remember that there is an easy legislative fix to the Hobby Lobby case. Don’t you think that corporations that are potentially in line for veil piercing will be pushing like motherfuckers to get a legislative change through Congress?

  60. 60.

    FlipYrWhig

    @burnspbesq: I don’t remember taking sides in the matter, but I had a feeling that you were the one he had in mind with the remark.

  61. 61.

    PurpleGirl

    @James E. Powell: Actually, the idea of a corporation being a “person” was a mistake that was in the headnotes to the published decision. It is not, I believe, in the decision itself. Headnotes are commentary published with the decision placing the decision in categories, etc. The reason it gained such traction is that many attorneys and assistants just read the headnotes and not the whole decision when they are trying to find a case that backs up whatever they are trying to prove. (I’m hoping I wrote this up correctly and people understand it.)

    ETA: IANAL but I worked as a paralegal hand to check many decisions to make sure they are good for how the attorneys were using them. I was specifically NOT to use headnotes for this.

  62. 62.

    kc

    @Roger Moore:

    Well, maybe.

    I imagine a lot of shareholders of corps that don’t qualify for special Hobby Lobby treatment are going to be pretty pissed off at the unfair advantage “religious” corps are getting.

  63. 63.

    Emma

    @Roger Moore: Yes, but lower courts could make different decisions (and I’m sure some judges are dying to get to those “unforeseen consequences”) and then the whole circus would start rolling. One good case where the regular Joe-on-the-Street can be roused against an individual instead of a corporation and we’re off.

  64. 64.

    kc

    @Omnes Omnibus (the first of his name):

    . Don’t you think that corporations that are potentially in line for veil piercing will be pushing like motherfuckers to get a legislative change through Congress?

    Maybe that’d be a good thing. Let everyone see them getting MORE special treatment.

  65. 65.

    dedc79

    @kc: It’s not about what I or some law professors think is the logical implication of the ruling. It’s about how the Supreme Court is likely to rule. And what they’re likely to do is say that closely held corporations are “persons” for RFRA cases and that they’re corporations for veil-piercing cases.

  67. 67.

    Keith G

    @flukebucket:

    Rick Warren Joins Leaders Seeking Religious Exemption on LGBT Order

    That wouldn’t be the same Rick Warren who was invited by a certain President-elect to give the Invocation Prayer at his inaugural?

    Good heavens!

  68. 68.

    scav

    @srv: The whole Cuba Gitmo thing may also be comperilcated by another recent decision in progress:
    First quote

    NPR reports that “[i]n the shadow of the major Supreme Court cases yesterday, there was a lesser-noticed but momentous ruling by a federal appeals court in a case involving the use of deadly force by the border patrol. A decision by a three-judge panel of the Fifth Circuit Court of Appeals in New Orleans finds, effectively, that due process protections guaranteed by the Constitution do not stop at the border. It found, for the first time, that a border patrol agent cannot stand in the United States and shoot a Mexican citizen on Mexican soil without consequences.”

    Second Quote

    Lawyers in the case say it’s the first time that an appeals court has extended the protections of the U.S. Constitution to a noncitizen on the Mexican side of the U.S. border.

    with the permanent caveat that I’m in no way a lawyer or a judge and they and the religious are not currently on my to be judged admirable without positive concrete proof list.

  69. 69.

    kc

    @dedc79:

    @kc: It’s not about what I or some law professors think is the logical implication of the ruling. It’s about how the Supreme Court is likely to rule. And what they’re likely to do is say that closely held corporations are “persons” for RFRA cases and that they’re corporations for veil-piercing cases.

    Okay, then. MAKE THEM SAY IT. Let everyone behold them contort their opinions to help the Hobby Lobby family.

  70. 70.

    Omnes Omnibus (the first of his name)

    @kc: I think most corporate shareholders would vastly prefer limited personal liability to being able to foist their religious views onto others. Congress can wipe out the Hobby Lobby decision with a simple amendment to RFRA.

  71. 71.

    PurpleGirl

    @PurpleGirl: Okay, let’s try this again:

    ETA: IANAL but I worked as a paralegal and had to check many decisions to make sure they were good for how the attorneys wanted to use them. I was specifically told NOT to use headnotes for this but to go into the decision and read as much of it as needed to confirm the decision.

  72. 72.

    lukeallen1

    Gotta agree with you on this one.

    Just a reminder, you have earned ZERO right to bitch or snicker about any SCOTUS decision since you voted for the presidents who nominated those 5 assholes.

  73. 73.

    lukeallen1

    “I’m still a know-nothing asshole”

    Gotta agree with you on this one.

    Just a reminder, you have earned ZERO right to bitch or snicker about any SCOTUS decision since you voted for the presidents who nominated those 5 assholes.

  74. 74.

    flukebucket

    @burnspbesq: I really did want to know your prediction on the Hobby Lobby decision. Did you ever make one? I was just honestly interested in your take on it before it came down.

    And while we are at it what about Halbig v. Sebelius. What is your gut feeling on that one?

  75. 75.

    Temporarily Max McGee (soon enough to be Andy K again)

    @James E. Powell:

    It goes back further than that case. In the US, corporate personhood was affirmed in 1819 in Dartmouth College v. Woodward . And the concept goes back to English common law- one can’t sue a wall, a table or a contract. Instead of killing the concept of the corporation, the courts made corprorations persons so that they could be sued.

  77. 77.

    Omnes Omnibus (the first of his name)

    @kc: Enough pressure from corporations? The Dems will vote for an amendment. Just need enough Corporate GOPers and something passes the House. Or, and I prefer this option, elect a decent Congress this fall.

  78. 78.

    dedc79

    @kc: I couldn’t agree more. And to be clear, one of the first things I did after the opinion came down was to email some old law school friends to raise the issue of what, if anything, the decision means for corporate liability. It should mean something; I just suspect that it won’t. I think instead we’ll get a “heads you win, tails they lose” type ruling.

  80. 80.

    JimV

    James E. Powell says:
    July 7, 2014 at 3:25 pm
    JC-“Remember when a few people insisted I was a know-nothing asshole because I kept repeating that the court is controlled by partisan hacks?”

    JEP-“No, I don’t. And I don’t know how anyone could dispute that charge after Bush v Gore.”

    I was going to say the same thing. Plus add that I knew it was going to be even worse after Alito was confirmed and called Obama a liar at a State-of-the-Union speech.

    I now have woken up to the realization that except for notably rare exceptions, this has been the norm throughout our history. I think it is more noticeable and frustrating now though because there are so many ways good government could make our lives better, yet we seem to be going backwards.

  81. 81.

    chopper

    @Emma:

    i would love to see some athiest-run corporation file for relief under HL and see how the court handles the ‘deeply held religious belief’ when there’s no religion involved.

  82. 82.

    Steve in the ATL

    @PurpleGirl:

    I worked as a paralegal and had to check many decisions to make sure they were good for how the attorneys wanted to use them. I was specifically told NOT to use headnotes for this but to go into the decision and read as much of it as needed to confirm the decision.

    You are a step ahead of many, many lawyers then!

  83. 83.

    Anya

    John, shouldn’t your title be: Religious Liberty For Some, Miniature American Flags For Everyone?

  84. 84.

    FlipYrWhig

    @Omnes Omnibus (the first of his name):

    Congress can wipe out the Hobby Lobby decision with a simple amendment to RFRA.

    I think you mean “Congress can worsen the Hobby Lobby decision with a simple amendment to RFRA expanding ‘religious freedom’ to other inanimate objects, like Christmas ornaments, Jesus-fish car magnets, and needlepoint pillows with Bible verses on them.”

  86. 86.

    James E. Powell

    @dedc79:

    It’s not about what I or some law professors think is the logical implication of the ruling. It’s about how the Supreme Court is likely to rule.

    Exactly. And not just the US Supreme Court, but all the other courts who are going to rule on such claims.

    Corporate law is almost entirely state law.

  87. 87.

    Schlemizel

    @FlipYrWhig:
    Ah, how foolish of me to ignore good ol burnsie. Consider the source I guess.
    Someone above it it right on the head (and if I was not a lazy slug I would look up ther & give them the credit they are due:
    If it quacks like a duck, an walks like a duck and smells like a duck and fucks like a duck and eats like a duck and flys like a duck and hands down duck stupid decisions its safe to assume the damn thing is a duck despite pretense otherwise.

  89. 89.

    Anya

    @lukeallen1: Shouldn’t there be some sort of a blogosphere statutes of limitations on shaming people about their past votes? JC is not a republican. He doesn’t support those policies. Why is how he voted in the past relevant to this discussion?

  90. 90.

    chopper

    @Anya:

    Shouldn’t there be some sort of a blogosphere statutes of limitations on shaming people about their past votes?

    the length should correspond to the amount of sheer damage done by the guys the votes were cast for. you figure that one out.

  91. 91.

    Omnes Omnibus (the first of his name)

    @FlipYrWhig: Corporations won’t lobby for that result. They probably would for a return to the status quo ante. But, never mind that, it’s cheap cynicism day on this thread.

  92. 92.

    gelfling545

    @Randy P: I, too, would like to see some informed discussion of this since, as I understand it, the point of incorporation is to distinguish the corporate entity from the natural persons involved. Of course I wouldn’t be all that surprised to find that corporations have been assigned the rights of individuals without any of the liabilities.

  93. 93.

    srv

    The only legalese person I remember picking 5-4 on ACA was Face.

    I think burns and crowd were in the 7-2 theory, thinking Kennedy’s socialist freak flag would fly or something.

    Oh, DougJ supposedly thinks he’s a lawyer too and he was 5-4 against, as was the blowjuicemob.

  96. 96.

    Hobbes

    A few more decisions granting corporations the rights of people and we’ll have to start calling shareholders slave-owners.

  98. 98.

    FlipYrWhig

    @Omnes Omnibus (the first of his name): It’d be a big-biz vs. religious whackadoodle showdown again, then. I don’t see our current crop of Republican politicians knocking themselves out to do anything that could remotely be construed as INFRINGING RELIJUS LIBBITY! Like how gun massacres only lead to further relaxation of gun laws, putting this before Congress probably leads only to further Bible-thumpin’ grotesquery.

  99. 99.

    David in NY

    @Roger Moore: “But they don’t have a majority on the Supreme Court.”

    So what. Most “pierce the veil” decisions are made under state law, and they never will get to the Supreme Court. I’m no expert about it, but on this issue I’d be more interested in what the Supreme Court of Delaware thought on the subject, than the supercon five.

    As to that (and I’m no expert), I’d expect the Delaware court to be conservative in the old sense of the word, and that Hobby Lobby wouldn’t have much impact — except to the extent that corporate owners imposing their own religious views, unrelated to profit, on the corporation, might be one element supporting an argument to pierce the veil. I suspect that the position that the Hobby Lobby owners took would not alone strip them of the protections against personal liability, but if other similar steps were taken, maybe.

    @dedc79: “It’s not about what I or some law professors think is the logical implication of the ruling. It’s about how the Supreme Court is likely to rule.”

    See above.

  100. 100.

    gene108

    @low-tech cyclist:

    Scalia and Kennedy both turn 80 in 2016. Wonder how long they’ll try to hang in there if Hillary gets elected President that November?

    I’d give them 10 years minimum from 2016 before they kick the bucket. Scalia is in no way going to retire. He’ll die in office.

    The Justices get really good healthcare.

    I think 2024 or 2028 will be key to replacing Kennedy and/or Scalia.

  101. 101.

    ⚽️ Martin

    @srv: I had figured 6-3 or 7-2 to uphold. Scalia was a reliable commerce clause supporter, and Roberts appeared to be as well. I figured they’d pull Kennedy along, with Alito and Thomas being the opponents. I think that’s more-or-less what burnsey figured.

    Scalia to me has made a pretty big shift since the Kenyan usurper arrived.

  102. 102.

    CaseyL

    I think the Court will decide that, hey, all prisoners sacrifice some rights when they are imprisoned and therefore the RFRA doesn’t apply to them.

    And SCOTUS will either refuse to grant cert at all or will uphold the decision.

  104. 104.

    dedc79

    @David in NY: Delaware courts and law are even more corporation-friendly than the US Supreme Court. That’s one reason why so many companies elect to incorporate there.

    Delaware courts could care less how the Supreme Court chose to define “person” in the context of RFRA. They’ll say that the corporation in question is still a corporation under Delware law even if it’s sought the protection of RFRA. The corporation won’t be deemed to have sacrificed its corporateness merely by seeking the protection of that law. I wish it was otherwise, but that’s the reality.

  107. 107.

    Roger Moore

    @aimai:
    The point I’m trying to make, obviously badly, is that Hobby Lobby is not really about corporate personhood, or if it is, it’s about the limits on corporate personhood rather than their extension. The idea behind a corporation being a person is that the corporation is capable of acting and being acted on separately from its stockholders. Because the corporation is its own person separate from the owners, it can own things without the stockholders owning them, owe money without the stockholders owing it, and be sued without the stockholders being sued. If Hobby Lobby has made stockholders more vulnerable, it’s by narrowing the barrier between the stockholders and the corporation, making the corporation less like a real legal person and more like the stockholders’ alter ego.

    IOW, there are two ways of looking at the Hobby Lobby ruling: that the corporation itself has religious views or that the shareholders are allowed to express their religious views through the corporation. The first is a major expansion of corporate personhood, while the second is a diminution. Only the second makes shareholders more vulnerable to lawsuits. If you think HL is an expansion of corporate personhood, then it doesn’t make it any easier to sue shareholders.

  109. 109.

    Omnes Omnibus (the first of his name)

    @Roger Moore: I think it expands corporate personhood on one front – the obvious one. At the same time, however, it does open it to attack on another one.

  110. 110.

    Johannes

    @Steve in the ATL: I’m with you. Nearly 25 years practicing, including two death penalty cases in the Rehnquist Era, so you’d think I’d have been cynical enough not to be appalled by this court, but it’s genuinely worse.

  111. 111.

    Mnemosyne

    @Anya:

    I try to only bring it up when I’m told I’m not sufficiently liberal on a topic (usually the NSA or whether Obama is going to start a war in Libya/Syria/Iraq). There’s nothing more annoying than a zealous convert sometimes.

  112. 112.

    Cervantes

    @Anya: It’s not relevant. People sometimes use ad hominem abuse when actual argumentation is beyond them.

    Or they use it out of anger, or frustration.

    Life goes on.

  113. 113.

    Cervantes

    @⚽️ Martin:

    Scalia to me has made a pretty big shift since the Kenyan usurper arrived.

    Can you list a number of contrasting decisions that might support this point?

    (Not saying here that you are mistaken.)

  114. 114.

    eemom

    I was a know-nothing asshole because I kept repeating that the court is controlled by partisan hacks?

    I still think the reality is a bit more nuanced than that. And burnsy’s right that we were right, and you were wrong, about the outcome on ACA.

    That being said, I will admit that before that decision 2 years ago I believed that all but the most egregious of the 5 actually did possess a shred of respect for the integrity of their institution, if not their place in history, that was some kind of check on their partisan hackhood — and I was wrong.

  115. 115.

    johnny aquitard

    @kc:

    The whole point of forming a corporation is to form an entity that is separate from you, the human person.

    Exactly what the sovereign citizens movement attempts to do, for the purpose of getting the human person out of the responsibility of following laws and other obligations he or she doesn’t like.

    Insisting the legal fiction of corporations have a religious conscience seems to me a sovereign citizen strategy, for the same end.

  116. 116.

    AkaDad

    I don’t think it’s fair to call John a “know-nothing asshole.” He does know some things.

  118. 118.

    karen

    This is when either

    a. they say that prisoners don’t have religious rights.

    b. Islam: isn’t a true religion, is a Satanic religion, etc.

    Or they just say that the rules only applies to Christians.

    I dare them.

  120. 120.

    gene108

    @Omnes Omnibus (the first of his name):

    I just don’t see this ruling having an impact on shareholders of publicly traded companies or making it easier to pierce the corporate veil of closely held corporations. Owners of closely held corporations, as it is, have to be really, really stupid for it to be obvious enough that they were using corporate funds for personal purposes that they could be held personally liable.

    I’m just not seeing what the hub-bub is about.

  121. 121.

    WaterGirl

    @karen:

    Or they just say that the rules only applies to Christians.

    I dare them.

    If I’m not mistaken, that’s exactly what they said as part of Hobby Lobby.

  122. 122.

    Citizen_X

    @AkaDad:

    I don’t think it’s fair to call John a “know-nothing asshole.” He does know some things.

    Oh yeah? Then where’s the goddamned mustard?

  124. 124.

    Cervantes

    @AkaDad: In the sense that he’s perfectly happy to attempt ad hominem abuse himself when it suits him, I agree.

  125. 125.

    JGabriel

    @catclub:

    Once you get to 80, getting to 90 is not some outlandish possibility.

    Assuming you aren’t afflicted with Alzheimer’s or some other form of senile dementia.

    And while – other than being a wingnut – Kennedy’s mind seems unaffected in that manner so far, Scalia looks, sounds, and writes like he’s already headed down that path.

  126. 126.

    karen

    @WaterGirl:

    Not outright. I want them to say that only Christians have rights. Only Christians are citizens. They’ve been skirting around that edge anyway and Mike Huckster had said he would order forced conversions to Christianity but I want them to outright say it. As a Jewish person, I’ve felt it, let them say it.

  127. 127.

    John (MCCARTHY) Cole

    @eemom: You were right about the outcome. I was wrong. I thought it would go down 5-4. Roberts surprised me and it went 5-4 the other way. But where you were, and I still insist, wrong, is that you and Burns thought it would be upheld on the legal merits. You guys were talking 7-2 or 6-3, because you still believed they would rule on the legal merits, not their own personal political beliefs. They didn’t, at all. Only Roberts was willing to weasel over to the winning side because he knew SCOTUS would be a laughingstock among all legal experts (like you and Burns) if this was overturned.

    But they couldn’t control themselves, and have no made themselves a laughingstock over Hobby Lobby.

    It’s really just this simple. Republicans have hyper politicized everything, including the court.

  129. 129.

    NobodySpecial

    @John (MCCARTHY) Cole: Why bother yourself to eemom? She’d just about gone dormant now that Stuck ain’t here to lead her and the Zoo Crew into policing Balloon Juice again.

  130. 130.

    eemom

    @NobodySpecial:

    Fuck you on this near-anniversary of when we learned of the General’s death, you despicable piece of shit.

    And if I’ve gone dormant it’s because I have better uses for my time, most of the time, than one-note squeaky toys like you.

  131. 131.

    Achrachno

    @JGabriel: “A 80 year old man has a life expectancy of 8.1 more years.” That’s average, of course. Sometimes people keel over unexpectedly at 81 — and sometimes they live to be 100+.

  132. 132.

    eemom

    @John (MCCARTHY) Cole:

    Republicans have hyper politicized everything, including the court.

    I think we’re actually sort of in agreement at this point….so, another unprecedented result from the Roberts court. : )

  134. 134.

    John (MCCARTHY) Cole

    @NobodySpecial: A. I like EEMOM.

    B. She, under duress, would probably admit she doesn’t hate me. Maybe waterboarding.

    C. There are such people out there, people high in argumentativeness and verbal aggressiveness, who are able of saying fuck you to each other and all manner of profane things, and then not carry a grudge.

    D. That was fucking cold about Stuck. I’m still a little embarrassed that my fucking cat, who I loved, got 1k comments on his death and Stuck got only a couple hundred. I mean, I still miss my cat, but that is kind of weird. Although I think looking at it casually like that is probably wrong, because most of the people were trying to console me, a human. But still, it looked weird.

    E. We need to do something for Stuck’s anniversary.

  135. 135.

    WaterGirl

    @karen: Mike Huckster had said he would order forced conversions to Christianity? Ick. That’s right up there with Romney converting dead people to mormonism. There’s something very wrong with these people.

  136. 136.

    eemom

    @John (MCCARTHY) Cole:

    I’m still a little embarrassed that my fucking cat, who I loved, got 1k comments on his death and Stuck got only a couple hundred.

    You shouldn’t be. Besides being horrifying, Tunch’s death happening on the same afternoon you posted the RIP thread for the General had to be one of the weirdest coincidences in the history of the blogosphere.

    I’d say more, but if you and I get any warmer and fuzzier, God knows what other weird shit might happen. Corner Stone might join in.

  137. 137.

    WaterGirl

    @John (MCCARTHY) Cole:

    E. We need to do something for Stuck’s anniversary.

    I think that would be really nice. Don’t forget to include some awesome photos of Charlie and links to beautiful hummingbirds, I hope they are still out there.

  140. 140.

    Betsy

    @Roger Moore: it seems to me (and I don’t like this one bit, but here is what I see in hobby lobby) that the focus of the decision is about the shareholders and not the corporation. In this sense, (ie if you focus on how it pulls back limitations of religious freedom and not on the corporate aspect) hobby lobby is if anything even a worse decision … because it puts at risk so many other situations (not just where a business entity is the place where the restrictions are imposed, but in other arenas). Why limit restrcitons on infringements to religious freedom to situations where orporations are regulated? If HL is not about corps, but actual people, then it could be that you can’t require people to do anything that interferes with their sincerely held beliefs in many more situations. Just substitute any other regulated “device” — here the employer, but it could be anything — besides the corporation that makes the reg operational, and you get the result of striking the reg.

    A back door to vitiating govt regs more generally — and, conveniently, only applicable to the religious — so atheists and mere civil ibertarians don’t get the benefit!

    What the court has done here is to expand civil liberties in one direction for one subset of the population, without having to become really genuinely more protective of civl liberties more genrally, or expand due process, equal protection and that sort of liberal rot.

  141. 141.

    Omnes Omnibus (the first of his name)

    @Betsy: As the various possible legal messes that will come out of this decision start to become more and more obvious, it seems to me that this may actually be one of the cases that doesn’t actually end up being cited as precedent in winning briefs in the future. A jurisprudential cul de sac, as it were.

  142. 142.

    kc

    @John (MCCARTHY) Cole:

    D. That was fucking cold about Stuck. I’m still a little embarrassed that my fucking cat, who I loved, got 1k comments on his death and Stuck got only a couple hundred. I mean, I still miss my cat, but D. That was fucking cold about Stuck. I’m still a little embarrassed that my fucking cat, who I loved, got 1k comments on his death and Stuck got only a couple hundred. I mean, I still miss my cat, but that is kind of weird. Although I think looking at it casually like that is probably wrong, because most of the people were trying to console me, a human. But still, it looked weird.

    Well . . . Stuck’s BJ persona was kind of an asshole.

  143. 143.

    Betsy

    @Omnes Omnibus (the first of his name): one lives in hope! But the Supremes can always rely on it even if the briefs don’t. I can just see Fat Tony (or, more charctersitcally, Roberts) using it as groundwork. Roberts is particularly scary at laying down incremental foundations of this type — HL is a major chance for regulation-evsicerating general principles to be cleverly stashed away (disguised as narrow exceptions, and distractingly labeled “corporate law” in the headers) for future use in trashing federal regulatory schemes.

  146. 146.

    Omnes Omnibus (the first of his name)

    @Betsy: Again, to me, the problem with using Hobby Lobby as precedent, either by lawyers or courts, is that any decision based on it opens further cans of worms. The five Inquisitors don’t really want to sail down the road of bring corporate law into question. Or at least not all five of them do. Both Kennedy and Roberts are still in touch enough with the real world that they don’t want to break corporations. Other Supreme Court cases have been cul de sacs like this before. Basically, the Court realizes that is went as far down a road as it can go and just ignores the case in future cases and arguments.*

    *It has been too long since I took a constitutional law course for me to give examples off the top of my head and I just don’t feel like looking for them. It has happened though.

  147. 147.

    Betsy

    @Omnes Omnibus (the first of his name): gotcha. By if I’m right that this is about people and not corps, primarily, they won’t have to “break” corporate law to extend HL to more religious objection situations. That’s my whole point in # 140 supra. The case looks like a corporate law case but its really a stealth principle for vitiating regulations.

    I could be way off natch. Moreover, it’s late at night.

  148. 148.

    Omnes Omnibus (the first of his name)

    @Betsy: I see where you are coming from, but I think you might be reading too deeply to get there. I might actually be limited here by my legal education, because I really see this as a case that judges aren’t going to want to use or want to have cited to them. Judges like to resolve things cleanly, if they possibly can. Relying on this case does not permit that. OTOH, those of you who have concluded that the GOP appointed members of the judiciary no longer give a fuck might be right. In that case, any elegant legal analysis I could offer is pointless and when we go to the barricades, I’ll just note that I am pretty decent with artillery.

  149. 149.

    Temporarily Max McGee (soon enough to be Andy K again)

    @James E. Powell:

    The English common law regarding corporations was received- as was much, if not most of the common law- by the American legal system. It wasn’t expressly forbidden (as were, say, bills of attainder) by the Constitution.

  150. 150.

    PhilbertDesanex

    @karen: Thanks for that about Huck, I didn’t know that. I went to tech school in Lakewood WA too, I’ll add it to my (verbal) ammo.
    Anyway, so:
    Between the SCOTUS appointing W
    who appointed these SCROTUS people (circle jerk, that)
    who have determined that:
    Corporations are people
    Money is speech
    personal belief beats actual facts:
    add it up.
    I hereby apologize for the non F-bomb words in my recent F-bomb post

  151. 151.

    eemom

    @kc:

    Stuck’s BJ persona was kind of an asshole.

    No, actually it wasn’t, to anyone with an above 3rd grade level of reading comprehension.

    Oh wait. NM.

  152. 152.

    Omnes Omnibus (the first of his name)

    @eemom: I liked that demented bastard. I disagreed with him at least as often as I agreed with him. He was fun to have around -spelling errors and all.

  153. 153.

    WaterGirl

    Good morning, General Stuck. If you’re anywhere where you can see this somehow, I salute you!

  154. 154.

    johnny aquitard

    @Omnes Omnibus (the first of his name):

    Again, to me, the problem with using Hobby Lobby as precedent, either by lawyers or courts, is that any decision based on it opens further cans of worms.

    The problem with your reasoning is that you are in fact using reason.

    The scotus five are just making shit up.

    They’re fixing facts around a policy, making their own reality in the best Bushie tradition. There’s nothing to make sense of here. It is what they want it to be.

    I recall seeing this comment on LGM: “I’ll believe corporations have religious beliefs when I see one get circumcised.”

    Let *that* be the litmus test for deciding if corporations have religious beliefs. There’s far more logic in that comment than in the HL decision.

    “the GOP appointed members of the judiciary no longer give a fuck” Sadly, this.

  155. 155.

    johnny aquitard

    @Betsy:

    The case looks like a corporate law case but its really a stealth principle for vitiating regulations.

    It works as both a floor wax and a dessert topping.

    They get out of following laws they don’t like. Corporate assholes are happy.

    The stalking horse was so-called religious freedom. They get to impose their religious bigotry on lots of other people. God-botherers are happy.

    How often have we seen this before? The GOP has harnessed religion to further the corporate agenda, and every now and then they have to throw the fundies a bone.

    It is a variation of the Medici motto: Money to get Jesus power; Jesus power to protect money.

  156. 156.

    johnny aquitard

    @johnny aquitard: Regarding corporate law as a means to shirk laws: It reminds me of the sovereign citizen thing, where they attempt to use corporate law to escape legal obligations.

    Apparently it works if the corporation is big enough.

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