Scalia Watch: Which Nino Will Show Up for Hobby Lobby?

ninoscaliaThe U.S. Supreme Court hears arguments Tuesday in Sebelius v. Hobby Lobby, a case about whether for-profit businesses can on religious grounds avoid a legal requirement that employer-provided health insurance include full contraceptive care. The owners of the privately-held corporations that brought the suit are, to be sure, religious people who run their businesses in part on religious principles. But this case isn’t about their individual beliefs so much as whether the entity they own and operate can itself as a corporation claim a First Amendment right to religious free exercise, and in doing so avoid complying with generally applicable law having secular intent. This case made it to the Supreme Court after a mix of rulings in different federal appeals courts, and where the high court will go with this one is seriously open to question.

With that in mind, it will be entertaining to see how Justice Antonin Scalia plays this one out. On one hand, it’s hard to imagine a scenario in which Hobby Lobby wins without Scalia in its corner. On the other hand, Scalia did write the majority opinion in the important 1990 case Employment Division vs. Smith, ruling against a couple of guys in Oregon who sought exemption from a particular application of drug laws on religious grounds after ingesting peyote as a sacramental ritual at their Native American Church. In Hobby Lobby, one of the issues the court will ponder is whether the contraception requirement, which as a regulation has no religious character or intent, substantially burdens religious exercise to an extent that would justify letting some evade the law.

So what does Scalia think about situations in which public policy created through a democratic process collides with individual claims to a right to religious free exercise? It is instructive to read some of the things he had to say in 1990 in the Oregon case:

“The government’s ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development.”

“Respondents urge us to hold, quite simply, that when otherwise prohibitable conduct is accompanied by religious convictions, not only the convictions but the conduct itself must be free from governmental regulation. We have never held that, and decline to do so now.”

“Our cases do not at their farthest reach support the proposition that a stance of conscientious opposition relieves an objector from any colliding duty fixed by a democratic government.”

“It is horrible to contemplate that federal judges will regularly balance against the importance of general laws the significance of religious practice.”

Quoting with approval a 19th century case: “‘Laws…are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices…Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.’”

Which Scalia will show up today for Sebelius v. Hobby Lobby? The one from 1990 who understood the proper balance between democratic government and religious freedom? Or the twenty-first century version who just seems to make it up as he goes to suit his ideological whims?

A version of this post appears on the Nashville Scene‘s Pith in the Wind blog.


Esoteric Message Sign of the Month

D&LAnd the winner is … Bernard Health, a Nashville-based insurance advisory firm with three locations in town (as well as a couple in Ohio and Indiana). That message in the photo is on the streetside sign at their retail location at the intersection of Harding Pike and White Bridge Road. Will many, or even any, of the throngs of Nashville drivers who pass through this busy intersection grasp the semi-arcane “Dewey & Leboeuf” reference?

Indeed the lawyers might. Dewey & Lebeof is the largest U.S. law firm ever to collapse into bankruptcy. The New York headquartered firm, which once had 1,400 attorneys, went Chapter 11 back in mid 2012. Just yesterday the Manhattan D.A. unsealed a 106-count indictment charging four key D&L leaders with grand larceny, securities fraud and falsifying business records. (The New Yorker ran a terrific piece by top-flight business journalist James B. Stewart last October chronicling the firm’s downfall.)

So the sign on Harding: How does Bernard Health’s braintrust imagine that it can drum up some business advising lawyers on health insurance by warning them not to mimic the most spectacular law firm failure in U.S. history? I posed that question to Ruthie Dean, Director of Communications at Bernard. She told me that while there wasn’t an insurance angle to D&L’s debacle, Bernard is trying to get lawyers to ponder the intersection of healthcare and mismanagement. Law firms, it turns out, are charged more by insurance companies for group health plans — often much more, according to Dean, who says it’s “because lawyers are categorized as high utilizers of healthcare.” Dean says it often makes sense for smaller law firms to drop the group plan and let their people buy insurance on the individual market, where they can’t be penalized just for being lawyers. (Although they can be mocked, I’m assured by other sources.)

Will lawyers tooling down Harding Pike recognize health insurance advisory services as the way to avert mismanagement and bankruptcy and scandal and prison? Hard to know, but props to Bernard Health for giving it a shot via a creative (if esoteric) use of the message board. Do lawyers utilize healthcare more because as a group they are hypochondriacs? We’ll leave that one for another day.

A version of this post appears on the Nashville Scene‘s Pith in the Wind blog.


The Ad They Should Buy

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Launching this site to replace my old one.


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