Scalia’s major screw-up: How SCOTUS just gave liberals a huge gift

[DonViejo]

With an otherwise awful Hobby Lobby ruling, right-wing judges just said I don't have to pay for warfare! Here's why

SARAH RUDEN

Before a recent visit by Justice Scalia to Wesleyan University, I (a lowly research fellow) gained an invitation to a banquet in his honor by employing a typical Quaker mix of idealism, stubbornness and low cunning. Once there, I thanked the eminent jurist for his liberal ruling in Crawford v. Washington, concerning the right to confront witnesses in criminal proceedings. This remark drew from him the quip that he ought to be a pinup in every public defender’s office in the nation, because sometimes he was forced by clearly established constitutional principles to rule in favor of people he couldn’t stand.

With this in mind, I’m celebrating him for yet another socio-political gift to progressives and suggesting that he doesn’t need to wear a thong — a modest bathing costume of 1910 vintage will do — in the poster religious pacifists like myself will want now that he and his brethren have ruled for Hobby Lobby et al., to the effect that private persons/corporations do not have to fund activities that violate their faith — such as the use of an IUD by an employee who may not even share that faith.

The upshot of the ruling is that Hobby Lobby and other businesses with conservative religious owners do not need to pay for what the Affordable Care Act mandates as full coverage for family planning. The public interest in affordable and accessible healthcare is not compelling enough to override the private belief that contraceptive methods including (but apparently not limited to) the IUD and the morning-after pill are murder. Well, I’m a pacifist, and I say that warfare is murder, and I don’t want to pay for it; and in recent decades the public interest in my paying for it hardly looks compelling.

Let’s go back to 2012, when the Supreme Court ruled that the Affordable Care Act’s mandate for the purchase of insurance was constitutional as a tax, to fund the public good of healthcare. The issue necessarily now shifts to whether an individual or a privately held company has to pay a tax for anything religiously abhorrent that is less essential, or only as essential, to the common good as women’s ability to avoid unwanted pregnancies, including from rape.

more
http://www.salon.com/2014/07/14/scalias_major_screw_up_how_scotus_just_gave_liberals_a_huge_gift/

[vi5]

1. Ridiculous premise.

1) None of the wingnut judges have ever been consistent in their rulings except that their rulings always favor the right wing, republican view regardless of consistent legal precedent or beliefs.
2) In this ruling they pretty much said they are ONLY talking about birth control. That is what makes the ruling so abhorent, because it was basically a group of catholic judges, ruling in favor of a prefered catholic belief outcome.

[truebluegreen]

4. They also said that their decision in Bush v Gore only applied to that case

but it has been used as a precedent since. They might be the Supremes, but they don't have that much control.

This is a huge can of worms and I hope EVERYONE from the ACLU to the peaceniks to the anti-gay crowd jumps on it: that is the only way it can be rolled back.

[H2O Man]

28. One question:

"...but it has been used as a precedent since."

When?

[cuncator]

31. Virginia, 2013

This article mentions a few:

http://www.motherjones.com/politics/2013/11/bush-v-gore-virginia-lawsuit-precedent-supreme-court

As mentioned in the article it seems to be mostly confined to Virginia for now.

[truebluegreen]

33. The NAACP cited it in CA as early as 2003, there was another case in Ohio after the '04 election.

I believe both were overturned on appeal because the Supremes said it shouldn't be used, but there have been other cases since. And here are some thoughts from the below article that point out the importance of the decision:

There are several problems with trying to airbrush Bush v. Gore from the law. It undermines the courts’ legitimacy when they depart sharply from the rules of precedent, and it gives support to those who have said that Bush v. Gore was not a legal decision but a raw assertion of power.

The courts should also stand by Bush v. Gore’s equal protection analysis for the simple reason that it was right (even if the remedy of stopping the recount was not)....The conservative justices may have been able to see this unfairness only when they looked at the problem from Mr. Bush’s perspective, but it is just as true when the N.A.A.C.P. and groups like it raise the objection.

There is a final reason Bush v. Gore should survive. In deciding cases, courts should be attentive not only to the Constitution and other laws, but to whether they are acting in ways that promote an overall sense of justice. The Supreme Court’s highly partisan resolution of the 2000 election was a severe blow to American democracy, and to the court’s own standing. The courts could start to undo the damage by deciding that, rather than disappearing down the memory hole, Bush v. Gore will stand for the principle that elections need to be as fair as we can possibly make them. (my bold)

http://www.nytimes.com/2006/08/15/opinion/15tues4.html?_r=0

[samsingh]

32. many people don't remember those weasily little words from the scotus

[former9thward]

39. Because they don't exist.

No place in Gore v Bush does it say it can't be used as precedent.

[samsingh]

40. the word 'narrow' is used

[former9thward]

41. Every SC decision is "narrow".

The court never likes to rule on anything that is not before it. Almost no SC decision is sweeping. That is why there are countless SC decisions on the 1st amendment, 4th amendment, etc. What the court said was that is was unlikely the specific factual circumstances of Gore v. Bush would ever be before the court again. And I think that is true. But it never said it could not be used as precedent. All SC decisions can be used as precedent and the court knows that better than anyone.

[samsingh]

43. i'm not sure what you're arguing here.

the recent ruling on abortion clinic buffer zones is not narrow.

[former9thward]

44. It is extremely narrow.

Last edited Tue Jul 15, 2014, 09:42 AM - Edit history (1)

A previous SC ruling said 8 feet was ok. This decision said that under the factual circumstances existing 35 feet was not ok. You can't get more narrow than that.

[samsingh]

47. yet the scotus allows themselves a buffer zone. hypocrocy.

[former9thward]

48. Security people dictate that.

Not really the same issue. President Obama and the White House has a far bigger buffer zone. Security.

[samsingh]

49. sure they do - and scotus couldn't do away with that if they had any integrity

in fact, let people approach them openly carrying rifles and guns

[former9thward]

50. Approaching who with guns?

[DonViejo]

5. Nothing wrong with a ridiculous premise...

Hobby Lobby won with one.

[Squinch]

11. ^^^This exactly. It might not win, it might not even be heard by them (which is what I would

expect) but it can be publicized and thereby show the freaky five for the hypocrites they are, and show the ruling for the farce it is.

[enough]

6. Your first point is exactly right. This is why attempting to make some sort of liberal hay out of

the Hobby Lobby decision is delusional. The 5 justices are not working on logic or legal consistency and they do not care about it.

Oddly, your first point is exactly why the second point (that they are only talking about birth control) will not hold up for long. They are not going to be any more consistent about that than about anything else.

[LuvNewcastle]

7. Yes, only conservative religions, like Catholics and Evangelicals need apply.

If the Quakers, who have a long-standing pacifist tradition, were to challenge taxes for wars, they would be laughed out of court. We have certain religions in this country whose beliefs count and others that don't, and we can all see very clearly now which ones they are.

[imthevicar]

9. Ridiculous premise!?

Nothing to see here, Don't bother to look, It's not worth your time, or effort.
What Utter Rubbish, What tripe, With That Attitude we would have never won the Liberal Victories in the last century. Your argument fills me with the urge to,

[vi5]

10. Wait, what?

The article doesn't say anything about what we need to do or working for liberal victories. It just says "Oh, hey this is great because next time around on this other issue they'll have to be consistent or be called hypocritical."

No they won't because they do whatever they want when they want to do it, regardless of what they've said before.

My point involves MORE getting out and working for liberal victories and not just relying on the proposed consistency of a bunch of right wing cranks.

If anything we've spent too much time over the past however many years saying "Oh well, they did this so next time around they'll HAVE to do that or we'll call them out on their hypocricy." As we've seen time and time again, they don't care.

[mountain grammy]

16. You are right, they don't care and never will.

They thrive on hypocrisy. Everything right wingers say and do is hypocrisy and they don't care! They are Christians with no morals, intellectuals with no brains, and love America but hate Americans.

We can only fight them by advancing social policies that continue to extend equality to all Americans. The more Americans who participate in the political process, the stronger we will be.

[Orsino]

19. Well, it's only a ridiculous premise...

...because of a ridiculous decision. Highlighting that ridiculousness is good framing for public debate, even if the argument will never get to court.

[stopwastingmymoney]

22. ^^This!!^^

[jwirr]

24. Thus denying the rest of us our religious freedom. My church does not forbid birth control of any

form.

[truedelphi]

42. So since it is only about Birth control, & it is true that their Catholic Faith instructed them to

Do this, can they then not be impeached for their neglect to recuse themselves? After all, right now, one of this nation's main principles is supposedly to keep separate the Church from the State. The founding fathers stipulated that Church and Stare were to be separate. They avoided paying attention to this part of their ruling, so the ruling is unconstitutional, and they themselves have broken their oath to protect the US Constitution.

[PuraVidaDreamin]

2. Pro Peace activists must incorporate!

Today!

[genwah]

35. What a very interesting idea...

[Warren Stupidity]

3. The court issued a very narrow ruling.

They did that because they are vile fuckwits, but not idiots.

[DetlefK]

8. And as soon as they dare to use it as precedent for something other, the dike is gone.

[Squinch]

12. Those narrow parameters were then immediately tossed out the window by conservatives

filing suits against gay rights and women's rights to ALL forms of contraception.

I think this is a good idea.

[HockeyMom]

13. Public Employees Contraceptives

Who pays for their health care? Taxpayers. Do these religious businesses pay taxes? Of course, so their tax money is also going to pay for female public employees contraceptives too. Or maybe they should be exempt from paying taxes at all since they are now "religious" entities?

I brought this up on another post. Will they refuse to pay their taxes because it is "facilitating" something they consider evil?

[hedgehog]

14. More interesting is the comment that I heard that

the ruling, by identifying a corporation with the owners, has now made owners liable for a corporation's misdeeds.

[awake]

26. I would love to see a counter suet against Hobby Lobby

for providing false information to the Government which resulted in the loss of legal benefits to their employes. I should be easy to prove that Hobby Lobby's statements to the court that providing birth control goes against their long held religious beliefs is false, seen has how prior to Obama Care Hobby Lobby had provided the same insurance benefits that they now claim they do not believe in, also the Hobby Lobby's 401k program invests in the companies who manufacture the very same forms of birth control.

[Gman]

15. There already is precedent for that

At one time there was a war tax on telephone bills. Before the war tax on telephone bills was repealed as part of the Telecommunications Act in (IIRC) 1996, a customer could, by requesting in writing, have the tax adjusted off their telephone bill and pay the difference. The telephone bill war tax I believe was established in WWII and remained so until repealed.

On edit
I believe there was a court case that established the right to remove the tax for reason of objecting to war, but I forget the case.

[Ms. Toad]

21. Nope.

It was not legal to refuse to pay that part of the telephone tax. Many didn't - as an act of resistance that was small enough that it typically went unnoticed. But, absent phone company's voluntary cooperation, it was not removed from the bill. (And since the phone company would have been responsible for forwarding the tax payments to the appropriate authority, they likely just reduced each customer's bill by the amount of the tax rather than hassling the customer over it.

[Gman]

25. I worked for the old Southwestern Bell Telephone

At that time and I did the customer adjustments.

[Ms. Toad]

34. I didn't say there weren't adjustments -

just that they were made at the telephone company's option - not because the law required it. And - on the other end of the money, Southwestern Bell Telephone would almost certainly have paid the entire tax amount due (even if not collected from the customers) because there would have been significant penalties on the collector of the taxes for not paying the amount due.

Here is some information from the advocates of war tax resistance on the issue, which clearly labels it as an act of civil disobedience: http://hanguponwar.org/?page_id=36

[Gman]

36. Thanks

I remember we couldn't suspend service for non-payment of the tax. On my desk I only had one or two out of 4 -5 thousand bills I handled. (Sounds like a lot of bills but only the delinquent bills came to my attention.).

[FBaggins]

17. Poor legal reasoning

If ACA set up a single-payer system where individuals and companies paid taxes to the government and the government either paid for (or provided directly) all health care, then Hobby Lobby wouldn't have a legal leg to stand on.

You'll note, for instance, that the ruling doesn't say that HL can reduce their tax burden by the amount that the government will spend providing their employees with healthcare services that HL objects to... it just says that the government can't force them to fund those services themselves.

If (instead of a national defense budget), Congress passed an "Affordable Defense Act" requiring your company to purchase a machine gun and provide it to your local National Guard unit... then you would be able to use this ruling as precedent to reject that payment.

[ArcticFox]

27. Thank you. Saved me much time

Obvious point that any law school grad should know.

[Ms. Toad]

18. That was actually one of my first thoughts, as well -

but -ARGH - in touting one very well established Quaker belief, she trashed another that of living simply. Doing so comes close to trivializing Friends testimonies which put living simply on par with not paying for war or the threat of war.

[Fla Dem]

20. Article is great grist for the mill, but I won't hold my breath waiting for someone

to actually go forward with a legal proceeding. We can spout what if's all day, but until someone puts their money where their mouth is, it's just bravado.

[raouldukelives]

23. Wouldn't that be nice? Sadly, America runs on war. Can't even call it "war" really.

There is no self-defense. Just killing for money. Working hand in glove with global corporations, the CIA, IMF and the assistance of millions of small investors who pump money into them expecting a share of the destabilization pie.
While the citizens of third world countries and struggling democracies push back against the oligarchs, the streets fill with the dispossessed and the bodies of those who would fight for their people.
If they really get out of hand we can call in Mother Green and her Killing machine to ensure all resources are in the hands of corporations and not held nationally. We don't care what is really going on, just feed us some nonsense about freedom and protecting our families living room and we'll sign up droves of paid "volunteers" to gun them down and ensure a smooth transition for Wall St.
Everyone shares in the death and everyone makes a dollar. From the politicians to the bankers to the investor to the guy putting gas in Humvees. Trickle down fascism might suck for the least, but it generates massive profits for the most.

[freshwest]

37. Trickle down fascism is right. People that vote for wars are lining their own pockets.

It was once hidden with ideology or religion, but since BushCo and his cronies handed out big checks to the contractors, it's right out in the open now. The 'liberty and freedom' contractors expect those checks to keep rolling in and vote for those who will help them.

Ironically, they don't believe they should pay taxes or show any respect for those who do. Because they are just smarter than the sheeple. I've heard that from well off Libertarian contractors for years.

Of course, they say they'd never need on Social Security, etc. THEIR money gets into their bank accounts by magic, huh.

[weissmam]

29. The upshot

1. This represents a hugh talking point for DNC as proof of the war on women, from both a motivation and fundraining standpoint
2. This can be construed as piercing the LLC protections which scares the hell out of all the Fout 500 companies , which is why they were very quite about this

[libodem]

30. .

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[blkmusclmachine]

38. Rightwing SCOTUS: A predetermined outcome in search of an explanation.

Fools.

[yurbud]

45. wouldn't it be nice if Washington were that consistent?

[yurbud]

46. I had a similar thought about presidential power after Bush when Obama was elected

"Wow. Bush just spent eight years proving checks and balances don't matter and a president can do exactly whatever the fuck he wants with impunity. Now that we have a Democratic president, he can use that unlimited power for good."

But of course the president's power isn't unlimited when it comes to taking care of middle and working class people--only when it comes to serving the rich.

So it is here. From Bush v. Gore forward, the right wing decisions of the court are barely veiled versions of "because I said so."

and if you find loopholes in it, they won't let you exploit them just for the sake of appearing consistent.

[dsc]

51. I hope she is better at whatever she is studying than at law

She is wrong for several reasons. One, Hobby Lobby decision specifically mentions that it doesn't apply to taxes. Two, in the ACA decision by Roberts, it was the individual mandate to buy insurance that was called a tax not the employer mandate. That is because it is settled law that the government can dictate to employers that they must provide certain benefits to their employees.