Eugene is certainly correct that sometimes a constitutional decision intended
to take an issue off of the table of political deliberation and avoid
political/religious divisions will have counterproductive consequences. I tend
to see this as an unavoidable cost of deciding constitutional cases
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
Sorry to go way back in time to yesterday, but Chip wrote
The problem now is not divisiveness, per se. Like any controversial
Supreme Court decision, some will hate it and others will love it.
Inevitably, these folks will be divided by their disagreement.
The problem is legitimacy. Free
We've been over this before, of course, but as long as we're filling out the
facts ... they are required to pay a $2,000-per-employee assessment if they
drop health insurance, on top of being forced to choose an option that would
either cause them significant competitive disadvantage or
My understanding is that that IRS reg is not about the option of declining
to offer a plan at all -- something that I'd think the statute guarantees
and that the executive cannot change -- but instead about whether certain
employer-employee arrangements for health care costs are excludable from
I didn't say that the Greens are not potentially burden as company
directors -- indeed, that's exactly what I've argued the case is about,
rather than being about corporate free exercise or shareholder rights:
http://balkin.blogspot.com/2014/01/hobby-lobby-part-v-whose-religious.html
On Tue,
Well, as long as we're filling out the facts, it begs the question to
assume that taking this option would cause any particular employer
significant competitive disadvantage. Perhaps it would and perhaps it
wouldn't. A recent report (
But are they the beneficial owners of the shares as beneficiaries of the trust?
Sent from my iPad
On Jun 10, 2014, at 11:32 AM, Marty Lederman
lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote:
I didn't say that the Greens are not potentially burden as company directors --
indeed,
I think there's much to what Alan says, but I think the
relationship between national and local politics is complex. For instance,
while choosing U.S. Supreme Court Justices is a matter for national politics,
many groups that organize to influence that will also have local
I'm teaching the law of religion this fall, after several years away from
the survey course. Has anyone here had a great deal of success with any
particular casebook? (I usually assign full opinions, but am open to using
a casebook if there's a superlative one out there.) And do any of you have
Surely directors have a fiduciary duty as a matter of state law to set aside
their personal beliefs and act in the interests of the corporation – not their
own souls – according to their best professional judgment.
It would be strange indeed to discover that the First Amendment nationalizes
Could you please elaborate a bit further on the assertion in the
last sentence? A corporation, after all, is a private entity, not the
government; it’s not obvious, then, that giving it free exercise rights is an
“establishment,” at least in any constitutional sense. Indeed,
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
The thoughts below may well be right for a corporation with religiously diverse
ownership. But Hobby Lobby is closely held, with a voting trust created in part
to ensure that the business would be run consistently with the family's
religious commitments.
In public opinion, and often in law, we
Lord knows Doug and I have plenty of differences on this case, but on this
one we agree, at least roughly speaking. The directors may have a duty to
act in the corporations' interests . . . but they are also the ones here
who decide what those interests are. There are no stockholders to whom
I would add that it is likely that Hobby Lobby is acting in the interests
of the corporation in this instance, including the fiduciary interest;
scores of people shop at Hobby Lobby because they like what it stands for.
Take that away, or make it seem as if they have abandoned it, and it can't
Can't stress this too often, apparently, since it doesn't seem to take
hold:
The alleged burden here is *not *about the expenditure of money; it's about
the choices.
See
http://balkin.blogspot.com/2014/02/hobby-lobby-part-viii-hobby-lobbys.html
On Tue, Jun 10, 2014 at 9:40 PM, Daniel J.
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