consultants are sandburs

Wednesday, July 09, 2014

More Hobby Lobby. Nobody could have anticipated the outrageous meanderings of the Roberts Court, and ... amend ...

For the headline theme, a friend emailed this link. That item explores the RFRA genesis as passed by voice vote in reaction to the Scalia majority opinion in Smith, something that has been commented upon elsewhere in several online items that reader web searching can uncover.

The key value I see in the emailed item is its reference back to a Stevens concurring opinion from 1997.

In my opinion, the Religious Freedom Restoration Act of 1993 (RFRA) is a “law respecting an establishment of religion” that violates the First Amendment to the Constitution.

If the historic landmark on the hill in Boerne happened to be a museum or an art gallery owned by an atheist, it would not be eligible for an exemption from the city ordinances that forbid an enlargement of the structure. Because the landmark is owned by the Catholic Church, it is claimed that RFRA gives its owner a federal statutory entitlement to an exemption from a generally applicable, neutral civil law. Whether the Church would actually prevail under the statute or not, the statute has provided the Church with a legal weapon that no atheist or agnostic can obtain. This governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment. Wallace v. Jaffree, 472 U.S. 38, 52—55 (1985).

[Note the link in LLI's original was problematic for me, however, Wallace v. Jaffree is online, here, that link added to the quote for convenience.)

Again the key direct mischief of Hobby Lobby is rooted in the stupidity of Citizens United, and its stretching "corporate personhood" fictions beyond all reasonable bounds. Alito's Hobby Lobby majority opinion rests upon that stupidity, and because of the five being the entrenched majority for now and depressingly young in that sense, an amendment of the constitution to undo the brain-numb fiction of Citizens United is overdue.

But for now, the Establishment Clause is a factor Alito, writing his sophistry for the gang of five, wholly ignored.

Nonbelievers holding to a position of conscience is not accorded equal protection, and that is unfairly favoring "religion" over sincere and strong beliefs based on reason rather than blind faith. I.e., a violation of the Establishment Clause.

In passing, taxation law and arguments for exemption have been treated uniquely, and that was noted within the Hobby Lobby opinions. Indeed, recall the tortured Roberts opinion upholding the AMA individual mandate as permissible "taxation."

Sincere belief, based on faith or reason to want to avoid the individual mandate, that has been foreclosed by this Roberts Court. Contraception can be messed with, "taxation" is sacrosanct. So says the Roberts Court. Women have a right to be incensed. Thinking people do too. The Alito opinion in Hobby Lobby is an assault upon reason and common sense, built upon another, the Citizens United opinion. It is time to pull the bottom card of this house of cards out, to collapse the entire thing, and that is to amend the Constitution to undo Citizens United.

No comments: