Saturday, June 28, 2014

Justice Scalia's Knobby Hobby Lobby Problem

May we have the envelope please?  The judges' decision has already been made and we need to know the verdict.

Here we have a severe test of Mad Dog's theory of Supreme Court jurisprudence:  If, as Mad Dog has postulated,  the votes of Justices Scalia, Thomas, Alito and Roberts can be predicted from a one paragraph summary of any case using the simple formula:  
Outcome =Scalia's imperative to rule in favor of authority (commercial,  religious or class)  x   Mr. Scalia's own religious convictions x his resentment of women who want to have sex, taken  to the power of 4 (the sum of votes from the 4 horsemen of the apocalypse) times the right to free speech for those who agree with Mr. Scalia, times  the libertarian belief government should not be allowed to do much, divided by the argument that the Constitution is scripture.

Using this formula,  the ruling in the Hobby Lobby case has got to be in favor of Hobby Lobby and against the Obama administration's rule that if you are a for profit enterprise required to provide health insurance, you must provide benefits for contraception as part of Obamacare.

Here's the case: the owners of Hobby Lobby refuse to pay for contraception benefits including IUD's and the morning after pill because they consider these forms of "contraception" to be backdoor abortion, and their religious beliefs would be violated if they had to pay for their employees' choice for abortion.

This is the old Rush Limbaugh argument to the Georgetown Law student who argued her birth control pills ought to be covered under her health insurance: You want me (as a taxpayer) to pay for your contraceptive pills? You want to be paid for having sex?  That makes you no more than a slut! 
Except for the Eyebrows--but eyebrows are easy--It's possible

So, this should be easy, right?  Scalia abhors abortion (and some would say he bears a striking resemblance to Mr. Limbaugh, and the fact is, they have never been seen in the same room together, in the flesh) and this is a case of people who agree with him. 

Ah, but Mr. Obama argues:   if anyone, a citizen or a company,  can assert the right to decide whether or not to comply based on their own religious rules, then what stops the owners of a company whose faith tells them income tax is a violation of their faith,  because those taxes support spending on weapons of death?  Any  company, in fact any individual can claim it or he or she  does not want to comply with laws against sexual discrimination or racial discrimination because these laws violate some particular religious belief.  My religion says homosexuality is an abomination against God, therefore I do not have to employ homosexuals.  My religion says Blacks carry the stain of Cain, (see Church of Latter Day Saints) and therefore I do not have to employ African Americans, or, if I do employ them, I can pay them less because they are Black. My religion says vaccinations are an abomination against God. Mine says blood transfusions are an abomination. 

You see the problem. 

This is, in essence, a case of whether individual belief can trump the law of the land.  This is a case of whether or not any individual can claim he hears the voice of God and everyone else must listen to what he hears.

Then there is the whole issue of whether or not the government can violate the religious practices or beliefs of a corporation. This Court has has said corporations are people. Justices Scalia et al really do love corporations dearly and would not want to do anything to upset them.   So frame the case as a case about offending corporate rights, and you've got a winner.   

This is what Ted Cruz would say is the tactic for victory. If you can frame the argument differently, if you can chose the ground on which the battle is fought, you can win the battle. It's like slavery was not about the slaves, their bondage and suffering, it was all about States' Rights! You can't come down here and tell us not to whip, rape and brutalize our slaves because this is a case about STATE'S RIGHTS! Change that frame of reference, you can use the law to slip right by what is actually happening in real life. 

So, one battleground which would allow Justice Scalia to win would be  to make this  a case about whether a corporation can be granted the rights heretofore granted only individual citizens.  Good ground on which to fight.

But even better, and this was the tactic of the lawyer arguing Scalia's side:  If the government can mandate contraception, why not abortion? If that what's this case is about, then Scalia's side has staked out an unassailable ground, and Mr. Obama has to charge uphill without cover and sharpshooters firing away. 

This has got to be the winning strategy: What if the government said it wanted corporations to provide for ABORTION? If the government can mandate contraception, why not abortion?  Why not sex with barnyard animals? See how this works?  We thought we were talking about contraception coverage, and now we are talking about abortion. We are hearing God's voice as the owners of Hobby Lobby hear it. We have the Ted Cruz effect--the battle is now being fought on different terrain entirely.

Of course, what this case is really about is whether or not you can force people to do something they find objectionable. The fact is, they need employees to do their Hobby Lobby business, and the fact is they owe to their employees what all business owners owe, according to law, even though they may not like the idea of their employees having sex outside marriage, even though they may not like certain forms of contraception or whatever you want to call the IUD. Their perceptions trump the law.

If any ethical analysis begins with establishing "the facts" of the case, we may have more problems for Justice Scalia.  The "fact" is the IUD MAY prevent the implantation of a fertilized egg into the lining of the uterus,  but it may be some or all IUD's actually prevent the sperm from traveling  to find the egg in the first place, in which case there is no fertilized egg to worry about.  As for the morning after pill, same thing. It may be the morning after pill  prevents implantation, but it may work entirely differently, preventing the egress of the egg and thus prevent fertilization from ever occurring. So, we just don't know. The science is not settled.  The perception that the IUD and Plan B work after fertilization (conception) may be fundamentally wrong.  

Ah, science is so full of doubts.  The Hobby Lobby folks will argue, well, until we know, we cannot take a chance on a fertilized egg being thwarted by an IUD or Plan B. 

When  Native Americans, as individual people,  wanted to use Peyote as part of their religious ceremonies, as they had for centuries,  the Court said, no you cannot violate the law in the name of your religion. You cannot use a religious belief to violate the law of the land.  Of course, the subtext here was the Native Americans wanted to use a hallucinogenic drug and the justices do no like hallucinogenic drugs, so ipso facto, a priori, the Native Americans lose. 

In the case of the owners of Hobby Lobby, well the justices like these two God fearing, white capitalists, so they are halfway home, maybe more than halfway, from the get go.

But Mr. Obama persists, arguing, you cannot say, "I hear God's true word, and the government and the Congress and the law do not hear God's true word, so I am entitled to listen to God as I hear him speaking to me personally." 

So, what is in that envelope?  Mad Dog can only imagine. Let's see: Why should contraception be considered "health care?"  This is not a medical practice but a social and ethical choice. Pregnancy is not a disease. You cannot say preventing pregnancy is a medical practice. Preventing pregnancy is a distinctly different realm. There may be social reasons for a government to want to prevent pregnancy, but these are social, not medical reasons and you cannot contaminate a healthcare bill with contraception.  

You can argue that the Constitution grants the government the right  under the" promoting general welfare," but that's all a legal trick, and the justices do not like legal tricks, except when they work to support their own prejudices. They can see right past all that to a   governmental policy allowing women to have unfettered sex and to support that activity with taxpayer dollars. Why, that's abominable.  What sluts!

So, you heard it here first:  The Court has to rule against Mr. Obama and for Hobby Lobby. Mad Dog cannot be sure what path the inventive Mr. Scalia will find to this end, but that is the place he wants to go, and according to Mad Dog's formula, he will find a way. 

Have faith in Justice Scalia. All he has to do is sell Justice Kennedy on this. Do we really want to turn American women into sluts?  This should be a slam dunk.


  1. How a Liberal make Mt Everest out of an anthill with fake moral outrage:
    The old adage goes:

    “Give a man a fish and you feed him for a day. Teach a man to fish and you feed him for a lifetime.” goes the old Chinese proverb.

    Problem is, if you refuse to teach them, then they don’t know how to fish. And if they never learned how to fish to begin with, then you have a person dependent on you for their fish.

    Which, for Democrats, works for them. That’s what they like. They can control you, you are their slave if you can’t or won’t fish and they give it to you, you are their puppet.

    You are ENTITLED to it.

    Teaching you how to fish would be crazy talk!

    Now take the recent Hobby Lobby decision. The Democrats are playing this like ALL of Women’s “reproductive rights” have been struck down by evil “right wing Christians” is so far a stretch I don’t think even P.T. Barnum could go there.

    But for the Agenda, and the “War on Women” false narrative it’s perfect.

    So here’s the Update:

    “Give a Woman Free Birth Control and she’ll be a Democrat for life. Try and teach her to go to the Drug Store and buy it her own damn self with her own money and you’re an ‘oppressor’ of women.”

    Now, that’s rational, logical, and “the Truth” right? :)

    The taxpayers must pay for it and Government must mandate that the taxpayers must pay for it, or it’s “oppressive”.

  2. Mad Dog,
    Actually, Indyfrom AZ's argument seems to center around your second theorem regarding Supreme Court cases. Outcome=Justices Scalia, Alito, Thomas and Roberts' ability to change the argument to something it isn't x Justice Kennedy's ability to shake his head yes....According to the Republicans, including IndyAZ, this isn't a case of when and why a corporation can deny mandated coverage, this all boils down to the Democrats' attempt to create a sub class of lazy sluts looking for a hand out because they are too cheap to purchase their own birth control. What's next the Right must wonder-the Government mandating the employer must physically drop the pill down the women's throats-where does it end..have these women no shame...And of course IndyfromAZ and the Republicans don't see what the big deal is since, as they so quickly point out, the Court ruling isn't taking away all women's reproductive rights-no,no ladies-just some of them ,so lighten up. With SCOTUS in our corner we'll decide what you are entitled to, now shut up and start learning to fish...I guess I do agree with IndyAz on one point-that it isn't simply a Women's Rights issue-goodness no, this ruling opens the door for denial of coverage for everybody...

    PS-The Mad Dog Theorem of Supreme Court Jurisprudence is both awe-inspiring and brilliant! One can clearly see a Nobel Prize and stints barking on the Sunday morning talk shows in your future....

  3. IndyfromAZ,

    You would, I am guessing, not object to paying for smokers with COPD who need respiratory therapy. You would not lose sleep at night over paying for the motorcyclist now quadraplegic, for the hunter who is accidentally shot by his hunting partner, for the overweight guy who loves his nachos and beer who now needs cardiac rehab and diabetes care. Those may be people you like, so having taxpayers cover them is just fine.
    What really galls you is the idea of women having sex when and how they desire and then the poor taxpayer has all your sympathy.
    Fact is, none of this has to do with who pays for it. It's about who and what is being paid for.
    You are simply looking for a socially acceptable reason to undermine contraception, same way Alito/Scalia/Roberts/Thomas have.
    Oh, Arizona! Where your hero, Sheriff Arpaio parades those captives around the streets in pink underpants. They so deserve it.
    You are among the smug self reliant, who drive down highways you didn't build, who drink water you didn't purify or convey, who fly in airplanes safeguarded by an air traffic control system you didn't build, who may even hire employees you didn't teach to read, write, do arithmetic, who plug in their TVs to an electric grid you didn't build, who look to FEMA to rescue you when the tornado hits or the hurricane blows, who is rescued at sea by the Coast Guard, whose parents get Social Security and Medicare.
    But oh, how you hate Liberals, who want GOVERNMENT, which is good for nothing.
    Wake up Arizona. You've been sucking at the teat of government and its good works all your life. Government taught you how to fish. You're just pissed off you weren't born knowing.

    Mad Dog