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Gaius Famius

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Hobby Lobby Oral

Arguments Update

by Gaius Famius

Published March 28, 2014

During the weeks since our last article, “The Fatal Flaw of the Hobby Lobby Case”, we have seen very little new information, and both sides have become more entrenched in their arguments.

Oral arguments in front of the Supreme Court on Tuesday, March 25th, did not bring any surprises, but were none the less interesting.

Hobby Lobby's lawyer, Mr. Clement was very unprepared for questions that were asked by the justices, and to the impartial observer, failed to defend his position.  One wonders how Mr. Clement could have been selected to argue before the Supreme Court because he failed to understand why he was there.  He was not there to present his thesis, as the Court already knew the thesis from the briefs, but he was there to defend his thesis, which he failed to do.  In fact, after carefully reading the entire unofficial transcript, one has to wonder if Mr. Clement had not actually been hired by the government to throw the case, because his incompetence was staggering.

Mr. Clement concedes that in the “tax context, it's going to be very hard for somebody to bring a claim that satisfies even the demanding compelling interest, least restrictive alternative test.”  

The liberal justices took the position that the mandate is not a substantial burden because if an employer does not want to pay for the contraceptive mandate, they do have an alternative, which is to simply not provide their employees with healthcare, pay the $2,000 per employee tax, and allow their employees to buy their own insurance in the marketplaces.  The point was made that it was not a burden on the religious beliefs of the employer if the employer simply does not provide healthcare insurance at all.

On behalf of the federal government, the Solicitor General Verrilli argued that contraceptives are a “statutorily-guaranteed health benefit of fundamental importance” which the employer does not have the right to deny to an employee, and therefore the government has a compelling interest in ensuring that all employees receive this benefit.  Solicitor General Verrilli also argued that employers cannot impose their religious faith on their employees.  He also argued that neither can employers impose a burden on the third parties (employees), or extinguish the rights of third parties (employees).

The Solicitor General went on to argue that the idea that certain contraceptives cause abortion is merely a religious belief, and therefore not subject to any of the laws that provide for conscientious objection to abortions.  The justices did not dispute this, and more than once even equated contraceptives to vaccines, blood transfusions, etc.  The Solicitor General made it very clear that there are no laws forcing employers to pay for abortions because contraceptives do not cause abortions.  Per the definitions of the federal government for pregnancy and abortion, he is correct.

The conservative justices did not hammer the Solicitor General as hard as the liberal justices hammered Mr. Clement.  The Solicitor General was allowed to make more complete replies to questions than Mr. Clement was.  This civility from the conservative justices allowed the Solicitor General to look more competent than Mr. Clement.

There was not enough interaction from Chief Justice Roberts to tell where he stands on the issues.  There was one point were he lost track of the arguments and had to have everything clarified.  What that means is anyone's guess.  Most of the pundits are saying that Justice Kennedy is the swing vote, but we would do good to remember that on the individual mandate it was Chief Justice Roberts that became the swing vote.

Direct and indirect reference to the Little Sisters case was made in the arguments, showing that the Court is considering these two cases to be related.  A ruling against Hobby Lobby will not bode well for the Little Sisters, although not necessarily, but the tone of the questioning indicated that the justices were not receptive to religious non-profits that were not churches receiving an accommodation.  Justice Sotomayer indicated disapproval of the Little Sisters objecting to filling out a form.  Pro-life confidence gained over Justice Sotomayer issuing the Little Sisters a stay is misplaced as the stay was most probably a mere administrative procedure, and is not indicative of how Justice Sotomayer will vote in that case.

Pro-lifers of course don't want to hear this, but the oral arguments portion of the case does not bode well for a ruling in favor of Hobby Lobby and against the contraceptive mandate.  In fact, all of the pro-life articles reviewed so far are claiming that a strong case was made by Hobby Lobby and express confidence that the Supreme Court will rule in Hobby Lobby's favor.

Our thesis is that this case will be decided on the tax basis, and not on the exercise of religious freedom or free speech, even though the case was filed under RFRA.

Our thesis, as presented in our previous article, remains essentially the same, although we do add some more thoughts below.

In the government's opinion, the employer contraceptive mandate is not a matter of religious freedom or free speech.  This mandate is about the government ensuring that all citizens and legal residents not only receive the same health benefits, but that all are required to pay their share of the benefits for everyone.

The IRS naming the tax penalty for not having healthcare insurance the “Shared Responsibility Payment” illustrates perfectly the mindset of the politicians and what they are trying to achieve.

Hobby Lobby, Conestoga Woods, and others bringing these lawsuits and those who support them fail to understand that this is not a narrow case about religious freedom, but a case that will decide whether individual rights are the foundation of America, or the rights of a centralized, dictatorial government have become the foundation of America.

The United States of America is no longer about individual rights – freedom of speech, freedom of the press, freedom of religion, freedom of assembly and association, the right to life, the right to due process, the right to vote and limited government, the right to legal protections – but about the supreme power of the state to dictate what everyone is entitled to receive from the state, and what everyone is obligated to do or pay in order to support the state.

Individual rights are no longer acceptable when they clash with the desires of the state.  This includes even the right to life, which the state has definitively made clear that it wants to do away with.  If there is no right to life, then no other rights exist, and the state can dispose of anyone that either gets in it's way, or is a burden to the state.

The state intends to prevail in the Hobby Lobby case in order to drive the final nail in the coffin of all individuals, and deny them any Choice in any matter, thereby making them defacto slaves of the government.

Because the Hobby Lobby lawyers chose a very weak legal argument, one fully dependent on limiting the government through the RFRA by claiming that the government cannot show a substantial government interest for the mandate, the Hobby Lobby case will fail.  In matters of taxes vs religious freedom and free speech, tax matters win, and the government has a compelling interest in all matters related to taxes.  Challenging the HHS contraceptive mandate under a right that is clearly subordinate (under American law) to the government's compelling interest in taxes was a mistake.

Hobby Lobby and it's lawyers fail to understand that America has become a country where EVERYTHING is now subject to the government's interest, and therefore the government has a substantial interest in everything.

Numerous challenges have been made against the government's substantial interest by challenging the government's assumptions about healthcare, women's needs, pregnancy, etc.  These challenges fail to take into consideration that the only opinion that matters is the opinion officially expressed by the government through regulatory agencies such as the CDC, HHS, and the FDA.  In the government's opinion, contraceptives are an important preventative healthcare benefit, and at no time constitute the act of abortion and therefore are not subject to abortion laws.

The government has made itself the final arbiter and decider of what every American needs and should be paying for in the way of healthcare.  Therefore, the government's substantial interest in healthcare overrules all considerations of religious freedom and free speech.  The precedent of social security and medicare being decided by and imposed by the government on every American through their paycheck deductions, in spite of religious objections, makes the court's upholding of the employer contraceptive mandate almost inevitable.

Should Hobby Lobby lose, the government healthcare system will be one large step closer to converting to single-payer.  It is possible that even the Democrats will come out in the 2014 and 2016 elections and promote single-payer as the solution to employers being forced to pay for things against their religious conscience.  In a single-payer system, the employer will no longer pay, but everyone will pay the government directly through their paychecks.  Single-payer will also be pushed as the answer to the still uninsured millions, the newly uninsured that lost their policies, and every other problem with ACA.  After arguing against Hobby Lobby, don't be surprised to see the Democrats turn around and then champion Hobby Lobby after Hobby's Lobby's loss, as a tool in their pursuit of a single-payer system.

We could of course be wrong, and Hobby Lobby will win, and tyranny will be delayed, but this is unlikely.

All anyone can do now is wait for the ruling to be issued by the Supreme Court in June.  Should Hobby Lobby win, we will be surprised, but should the government win, a lot of people will be surprised, even though we have tried to warn them here.

It will be interesting to see if the Green Family will truly stand by their moral principles when they lose, and immediately shut down their entire company, breaking up and selling off the assets.  Most likely, they will simply cave in and say that the Supreme Court has ruled and they no longer have any choice.  In which case everyone will get the message, comply or else.  In this case, Hobby Lobby may choose to drop their employer-sponsored healthcare in it's entirety, and simply pay the employer penalty of $2000 per employee.  Sadly, this would also be a win for ACA proponents because the ultimate goal is to push the employers completely out of the loop and force everyone to buy their healthcare on the exchanges.

However, if the Green family does have the moral courage to fire 13,000 people, close their stores, and liquidate piecemeal (as opposed to selling in entirety), this action of martyrdom would seriously make a point for individual freedom.  Otherwise, everything they have said and done prior to losing will be rendered moot.

Until the pro-life movement comes to the realization that the right to life is not a religious concept, but an inherent right that we each have from the moment of fertilization, and is completely scientific, there is little hope that the pro-life movement will prevail.  The right to life is the foundational right to all of our other rights, including our religious freedom and free speech.

While religious freedom and free speech are subordinate to government restrictions and the government's power to tax, the entire government, including it's power to tax, is subordinate to the right to life.  The fact that this reality is ignored in American law is why we have the legalized murder of the Unborn, and before that we had legalized slavery.

It is time for the pro-life movement to stop seeking narrow accommodations for religious beliefs, for the accommodation being sought by Hobby Lobby is very narrow, and to start standing on the fact -- hard, undeniable, scientific fact -- that human life begins at fertilization, and any action taken after fertilization that ends the life of an Unborn human is abortion murder.  Abortion must be absolutely abolished, and it is the compromises of the pro-life movement that have led to the precipice we now stand upon where all of us will soon be required to fund abortion murders, either through the individual mandate, or as employers.

In other words, the battle that should be fought right now is not a narrow battle over whether or not a limited number of Americans (those who own corporations) should be able to religiously object to and not pay for abortion causing contraceptives, but the actual forcing of the government to reclassify these abortion causing contraceptives as abortion drugs and devices, and thereby exempt all Americans, even through the individual mandate, from having to pay for these drugs and devices.  Following which, these abortion causing drugs and devices should be made absolutely illegal.

As long as these abortion causing drugs and devices are classified as healthcare by the government, and not as tools of murder, then they will remain legal, and the government, as the sole arbiter now of our healthcare, will retain it's compelling interest in ensuring that all American women have access to them through their healthcare plans.  Ultimately, the government, as the sole arbiter of what constitutes healthcare, will be able to classify clinical abortions as “preventative healthcare” and force everyone to pay for them as a part of all healthcare policies in this country.  The only way to stop this is to absolutely abolish abortion.

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Below are citations for more background information.

Unofficial Transcript of the Oral Arguments: