Even if the Greens are shareholders or beneficiaries of a trust that holds the shares, they aren’t buying anything. The funds used to purchase the insurance belong either to the corporation or its employees, depending on whether one is thinking about the moment before or after the employment contract (assuming that employment is at will, and subject to renegotiation at any moment, either view is plausible). Similarly, if the corporation fails to purchase the insurance, the corporation, not the Greens, will be required to pay an assessment to partially offset the exchange subsidies.
The corporation’s money is not the Greens’ money. Corporate funds do not belong to shareholders, let alone beneficiaries of a trust that owns shares (if they are the trust’s beneficiaries). To act otherwise is a gross violation of ordinary corporate law – basically, theft. Shareholders have no claim to corporate assets unless the directors properly declare a dividend or dissolve the firm, and directors may take either of those actions only in furtherance of the corporation’s interests and after assuring that other, more senior, claimants to corporate assets (such as the employees and the IRS) have had their claims met. Surely Freedom of Religion does not extend to protecting religiously motivated expropriation. (And if it does, we can expect some interesting revelations in the near future.) The issue here is the rights of the corporation, not its directors or shareholders or beneficiaries of a trust holding shares. The human beings have too attenuated a claim on the corporation’s assets for their rights to be at issue when it spends, or is compelled to spend, money. From: Marty Lederman [mailto:lederman.ma...@gmail.com] Sent: Tuesday, June 10, 2014 1:05 PM To: Law & Religion issues for Law Academics Subject: Re: "Divisiveness" I agree with Mark's correction that the complaint of the Greens is not that their employees' use of contraceptive burdens their religion. But it's also not that they have to "buy insurance that specifically covers the drugs." For thing, the law doesn't require HL to offer an employee health insurance plan at all. For another, the Greens aren't shareholders, and therefore aren't "buying" anything. Hobby Lobby, Inc. --as opposed to the Greens-- is contracting for an insurance plan -- but of course that plan is not made available to their employees gratis; it is a part of their compensation package, provided in exchange for their labor, just like wages. The nature of the way in which the Greens are alleged to be required to act in violation of any religious obligations, therefore, is not at all obvious. On Tue, Jun 10, 2014 at 12:55 PM, Scarberry, Mark <mark.scarbe...@pepperdine.edu<mailto:mark.scarbe...@pepperdine.edu>> wrote: Jon, I think you don't understand, or are ignoring, the point of view of the Hobby Lobby parties. They don't object to employees buying what the Hobby Lobby parties consider to be abortifacient drugs. I don't think they monitor what their employees do with wages or would take any action against employees who buy or use such drugs. They object to being required themselves to take an action specifically related to abortion -- buying insurance that specifically covers the drugs. You might object to buying a gun for an employee, even though the recipient would be the one who uses it. You might, if you were a pacifist, object to being drafted to serve as an army medic or supply clerk, even though you would not be killing anyone but merely be advancing the army's operations. I understand that some people object to this characterization, but it doesn't move the discussion forward to just assume that it isn't the position taken by the objectors in Hobby Lobby. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad > On Jun 9, 2014, at 2:35 PM, "mallamud" > <malla...@camden.rutgers.edu<mailto:malla...@camden.rutgers.edu>> wrote: > > There is some authority for not preferring religion over non-religion. > I do not think religious people should get exemptions reasons not > connected to the practice of their religion (church services, prayer, > lighting candles, sacrificing chickens etc.) To me many requests sound > like "I think it is wrong for religious reasons" and therefore other > people should not engage in that behavior. E.g. I will not pay my taxes > because taxes pay for killing people. No one is asking the owners of > Hobby Lobby to engage in activities that they believe offend their > religion; they are seeking not to pay employees in such a way that > certain contraceptives would be covered. The decision to use or not use > the contraceptives is the employees'. One difficulty is that the courts > are loath to inquire into to the closeness of the connection of the > claim to the religious belief. But without limits exemptions will > become legion. > > Exemptions usually involve some unfairness. That would be mitigated if > religious exemptions were limited to the actual practice of religion > rather than attempts to impose beliefs on others through refusing to > comply with general laws. Smith is a good example and, as we know, does > not stop you from sacrificing chickens because people in the community > are offended. Take it outside the church or home and give exemptions to > general laws and that will create problems if the exemptions become wide > enough to make it seem that religious folks have general privileges in > society that secular folks do not. Cf. Affirmative action. > > I noted previously Scalia's citation (in during oral argument) of the > overwhelming majority extending the VRA as evidence that the law was not > carefully considered. During RFRA's passage and thereafter I focused on > conservatives articulating the issue as one in which the Supreme Court > disrespected religion, and those on the other side of the spectrum > articulated the Smith decision as having disrespected constitutional > rights. From discussion about Scalia with lawyers and non-lawyers, I > cannot help thinking that a dislike of Scalia contributed to one side's > support of RFRA. > > Jon > > >> On 2014-06-09 17:00, Steven Jamar wrote: >> “nones”? >> Huh. I knew that was a thing, but didn’t really expect to see it >> here. >> >> Steve >> >> On Jun 9, 2014, at 4:49 PM, mallamud >> <malla...@camden.rutgers.edu<mailto:malla...@camden.rutgers.edu>> >> wrote: >> >>> I agree with Alan's statement below, stated better than I did. I >>> would add that we now do/should include the nones within the system. >>> >>> Jon >>> >>>> On 2014-06-08 22:36, Alan Brownstein wrote: >>>> If divisive means that people will be upset by a substantive >>>> decision >>>> than Eugene is clearly correct. I have always thought the issue was >>>> whether a decision was one that provoked political divisions along >>>> religious lines in the sense that if government could promote >>>> religion >>>> (or interfere with religion) religious groups would have an >>>> additional >>>> incentive to organize and mobilize as religious groups in order to >>>> make sure that it was their faith that the government promoted and >>>> that it was not their faith that was subject to government >>>> interference. Placing a church-state issue beyond the scope of >>>> political decision-making by subjecting it to constitutional >>>> constraints avoided (or at least mitigated) these kinds of >>>> political/religious divisions. >>>> >>>> There is probably a better term for this concern than divisiveness. >>>> >>>> Alan Brownstein >>>> >>>> >>>> >>>> >>>> >>>> >>>> >>>> >>>> >>>> >>>> >>>> >>>> >>>> ________________________________________ >>>> From: >>>> religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> >>>> [religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>] >>>> on behalf of Volokh, Eugene >>>> [vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>] >>>> Sent: Sunday, June 08, 2014 4:54 PM >>>> To: Law & Religion issues for Law Academics >>>> Subject: "Divisiveness" >>>> >>>> I agree very much with Tom on this point. In most >>>> controversies, both sides are acting in ways that could plausibly >>>> be >>>> labeled as "divisive." Government religious speech may be seen as >>>> "divisive," because it may alienate members of other religious >>>> groups; >>>> but prohibitions on such speech, or litigation seeking such >>>> prohibition, may be as divisive or more so. A pro-Hobby-Lobby >>>> decision might be divisive, but an anti-Hobby-Lobby decision might >>>> be >>>> divisive. Indeed, academic criticism of a pro-Hobby-Lobby decision >>>> (or an anti-Hobby-Lobby decision) might be divisive -- and so was >>>> the >>>> implementation of the mandate without a broad religious exemption, >>>> as >>>> Tom points out. The Employment Division v. Smith regime can be >>>> seen >>>> as divisive -- but the RFRA regime, or the Sherbert regime, which >>>> makes controversial judicially implemented religious accommodations >>>> possible, can apparently be divisive, too. >>>> >>>> Indeed, in my experience, most people -- I speak generally >>>> here, and not with a focus on this list -- can easily see the >>>> potential "divisiveness" of decisions they dislike on substantive >>>> grounds, but don't even notice the divisiveness of decisions they >>>> think are sound. After all, if one thinks a decision is sound, >>>> it's >>>> easy to view those who disagree as just unreasonable, so that their >>>> feelings of alienation don't really count (since they deserved to >>>> lose, and are now just being sore losers). >>>> >>>> Of course, >>>> >>>> Eugene >>>> >>>> Tom Berg writes: >>>> >>>>> I get those arguments, but they don't really seem to rest on a >>>>> ruling for Hobby >>>>> Lobby being "divisive"--they rest on it being (assertedly) >>>>> substantively wrong. >>>>> One could just as easily charge the Obama administration with >>>>> being "divisive" >>>>> (undermining "harmony," to use Jon's term) by adopting the mandate >>>>> in the first >>>>> place. (See Rick Garnett's piece on why arguments about >>>>> divisiveness should do >>>>> only very limited work in religion cases.) >>>> _______________________________________________ >>>> To post, send message to >>>> Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> >>>> To subscribe, unsubscribe, change options, or get password, see >>>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >>>> >>>> Please note that messages sent to this large list cannot be viewed >>>> as >>>> private. Anyone can subscribe to the list and read messages that >>>> are >>>> posted; people can read the Web archives; and list members can >>>> (rightly or wrongly) forward the messages to others. >>>> _______________________________________________ >>>> To post, send message to >>>> Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> >>>> To subscribe, unsubscribe, change options, or get password, see >>>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >>>> >>>> Please note that messages sent to this large list cannot be viewed >>>> as >>>> private. Anyone can subscribe to the list and read messages that >>>> are >>>> posted; people can read the Web archives; and list members can >>>> (rightly or wrongly) forward the messages to others. >>> >>> _______________________________________________ >>> To post, send message to >>> Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> >>> To subscribe, unsubscribe, change options, or get password, see >>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >>> >>> Please note that messages sent to this large list cannot be viewed >>> as private. Anyone can subscribe to the list and read messages that >>> are posted; people can read the Web archives; and list members can >>> (rightly or wrongly) forward the messages to others. >> >> >> -- >> Prof. Steven D. Jamar vox: >> 202-806-8017<tel:202-806-8017> >> Director of International Programs, Institute for Intellectual >> Property and Social Justice http://iipsj.org >> Howard University School of Law fax: >> 202-806-8567<tel:202-806-8567> >> http://sdjlaw.org >> >> Nothing worth doing is completed in our lifetime, >> Therefore, we are saved by hope. >> Nothing true or beautiful or good makes complete sense in any >> immediate context of history; >> Therefore, we are saved by faith. >> Nothing we do, however virtuous, can be accomplished alone. >> Therefore, we are saved by love. >> No virtuous act is quite as virtuous from the standpoint of our >> friend or foe as from our own; >> Therefore, we are saved by the final form of love which is >> forgiveness. >> >> Reinhold Neibuhr >> >> >> >> >> _______________________________________________ >> To post, send message to >> Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> >> To subscribe, unsubscribe, change options, or get password, see >> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >> >> Please note that messages sent to this large list cannot be viewed as >> private. Anyone can subscribe to the list and read messages that are >> posted; people can read the Web archives; and list members can >> (rightly or wrongly) forward the messages to others. > > _______________________________________________ > To post, send message to > Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are posted; > people can read the Web archives; and list members can (rightly or wrongly) > forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
