July 7, 2014

Federal Judge Blasts Hobby Lobby Decision

I know he isn't Volokh, but he does seem to have some legal experience.

Federal Judge Blasts Hobby Lobby Decision: Supreme Court Should 'STFU' | ThinkProgress


Bob said...

One of the more straightforward government limits in the Constitution:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or...”

In other words, Congress shall make no law regarding promotion of a religion, or prohibit the practice of religion. The tension between the two limits is purposeful, indicating a desire for government neutrality in religion.

In my mind “no law” means, that the government cannot:
-prohibit religion.
-promote religion.
-provide for a religious service.
-provide for a religious holiday.
-provide for a religious tax benefit.
-provide a religious exemption.

No law, means none. Zero. Zilch. Obviously a bunch of case law disagrees with me.

Religious exemptions in law place the government in the position of determining which religions are legitimate and are worthy of exemption, which clearly favors some religious beliefs over others. It seems that by opening the door to religious exemptions has placed the clause “…or prohibiting the free exercise thereof...” in a position of greater weight than “…respecting an establishment of religion…”

In the just society we have sought to create, laws are supposed to be created and enforced equally for the benefit of society as a whole. One person’s closely held belief is just a fairy tale to others. Why should the rules of one religion trump the needs of society to: fight polio and promote vaccines; raise an army; provide for the equal health of both genders; and other benefits to society?

In my opinion, the deference to religious belief has gone way too far in this society and is once again being used as an excuse to provide unequal treatment under the law.

Bob said...

And BTW - long time no blog!

steves said...

Bob, you make some good points, but there has always been some level of tension between establishment and free exercise. I don't know what the answer is.

As for this judge, I can be pretty casual, but when he says shut the fuck up or 'cause, it is a little hard to take him seriously. He probably doesn't care, since he has a level of job security that very few have. I have never heard of this guy, so I really can't comment on his expertise. I can tell you a joke I heard in law school:

What do you call a doctor that graduated last in their class?


What do you call a lawyer that graduated last in his class?

Your honor.

This is certainly not always true, but there is an element of truth to it. Judges are elected or appointed. In the case of federal judges, they are appointed and many times it is to reward people, though not necessarily for being the smartest.

Unfortunately, he makes the same error as the other author in that many of arguments are not legal, but just based on opinions which may or may not be true. He does make a good point when he says that the court should probably practice some deference and allow the other branches of government some room to craft a compromise. There have been plenty of instances where the court has stepped in and created an unworkable framework and made the situation worse.

Streak said...

Starting to think that Steve doesn't actually want a Supreme Court. Just him and Eugene Volokh.

Streak said...

I have a good friend from college who votes Republican. I really think he refuses to even acknowledge that his party is run by sociopaths who embrace torture and hate poor people--mostly because I think he is just too stubborn to admit it. Starting to think that Steve has that same gene. Can't possibly admit that reasonable people can disagree with him on guns or the Hobby Lobby case. No, they have to be uninformed and incapable of understanding the law. Even if they practice more than him. Or even if they are just informed and intelligent.

Streak said...

And Bob, thanks. And I agree. and many other intelligent people agree that this case is a weird one that prioritizes a certain view over others. We are already seeing unintended consequences through religious organizations seeking to discriminate against gays, or even the detainees at Gitmo claiming this ruling gives them religious freedom. We will have to wait to see how Steve and Professor Volokh rule on those cases, of course, but some of us might think those are unintended consequences that might lead to even more legal problems and bad policy. Of course, extending religious freedom to the Gitmo detainees might be a good step toward closing that place down, I don't know.

steves said...

I'll e-mail Professor Volokh and see what he thinks. To be fair, we can also include a recent law school grad and foul mouthed federal judge. We'll need another person to break the tie.

I think reasonable people may be able to differ on the HL case. Bob made some good points and I do wonder if this case may open things up to some unintended consequences. The court claims that this decision is to be narrowly interpreted. On the other hand, you have never actually discussed anything related to what kind of argument the Court made. You are just mad at the result and have offered as support two fairly weak articles in support.

I am not a Republican. If you want to choose to believe that, fine. If you would like to have an intelligent discussion, I am game. If you just want some kind of pissed off echo chamber, then so be it. This is your house.

Have you read this decision? How about the dissent?

Streak said...

I beg to differ. I discussed my misgivings with the decision. You dismissed them, as you are doing here. Not the first time, of course. I addressed the narrow ruling and discussed some of the legal issues. Of course, I am not a lawyer, but I read what others had said. You dismissed them all. And somehow are surprised that I find you annoying and condescending. I understand as well that you are not a Republican, though on some of these issues you act more like one that you might like.

I would like you to be less condescending on legal issues. But I get the idea that, just as with guns, you like to be an ass with me, even when your buddies Smitty and Bob say almost the same things. That makes me not like you very much. Take that for what you will.

steves said...

I will admit I don't have a strong opinion on this case. Employer provided health insurance is getting crappier every year and employers already pick and choose what kinds of things they want to cover and how much they pay. Based on my understanding of the law and previous cases, I thought the majority came to the correct conclusion and did what they were supposed to do. I thought the dissent made some good points, but were wrong.

That being said, I have never said that reasoned opposition to this decision was the product of someone that was stupid or unintelligent. Despite this, I have read some statements (not proposed by you or any commenter here) that were stupid. People have suggested that the majority voted the way they did because they were "old men", or Catholic, or hated women. I suppose this is a possibility, but this is just insulting and doesn't do anything to promote debate.

At this time, it is up to Congress to do something. I also believe they are mostly responsible for how this turned out. In other words, they passed the laws that allowed this.