Religious Conduct of Commerce: Unwinding the Hobby Lobby Case

Classificationism, Legal System
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There is a lot of confusion surrounding the Supreme Court’s recent ruling in Hobby Lobby. The libertarian perspective has been discussed elsewhere, but what the Court actually did is not being described accurately despite the fact that they helpfully include a “syllabus” summarizing each ruling for the public. Apparently, some people, including many reporters, can’t be bothered to read even the summary. Therefore in the interest of clarity, I will try to give a brief overview of the case and of the majority’s reasoning in their decision. For the sake of brevity, citations are omitted because they can be found in the actual decision.

First some background. Contrary to what some people have claimed, objections to general laws on religious grounds do excuse you from having to follow them. This wasn’t always the case. In the early 90s, the Supreme Court ruled that “neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest” because allowing someone to object on the basis of religion to such laws “would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.” In response, Congress passed the Religious Freedom Restoration Act (RFRA), overturning the Supreme Court’s decision and allowing challenges to neutral laws that burdened religious exercise. Under the RFRA, “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” The people affected by such a burden are entitled to exemption from the rule unless the government “demonstrates that application of the burden to the person– (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

Many people have said that the Affordable Care Act (ACA), i.e. “Obamacare”, requires employers’ group health plans to provide coverage of contraceptives. This is not correct. The ACA merely requires the plans to cover “preventive care and screenings” for women without “any cost sharing requirements.” Congress left it up to the Health Resources and Services Administration (HRSA) to decide specifically what types of care this includes. When the HRSA issued regulations specifying what was required, they mandated that all FDA approved contraceptive methods be covered. They also provided for a religious exemption for religious organizations and non-profit religious corporations. Per the requirements of the RFRA, they apparently would also provide a similar exception to unincorporated for-profit businesses operating according to the owner’s religious principles. They did not provide an exception for incorporated for-profit businesses with corporate policies stating that the businesses would be run according to religious principles. Importantly, granting this exemption does not mean that the employees of these organizations will not have contraceptive coverage. Rather, it means that the insurance companies and ultimately the government will provide this coverage at no cost to the employer or the employees.

Now for the case. …

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Pass The Press Please

Classificationism, Police Statism, Protectionism, Statism
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What does it take to be considered a legitimate news organization?

Gothamist, the operator of nine city-centric blogs that cover local news, events and culture have finally received their NYPD press credentials which allows them access to on-scene reporting or press events that are otherwise closed to others. This was after almost 8 years, countless emails, phone calls, two appeal hearings, $5,000, and getting high-profile civil rights lawyer Norman Siegel involved.

In their very detailed guide they explain how the process works, and how it favors the establishment players:

If you work for a mainstream outlet, like a newspaper, radio, or television station, you can stop reading right now. Your boss has no doubt processed dozens of press pass candidates through DCPI, and will have no trouble getting you a pass. This seems to apply to any old media outlet, no matter how small, so if you write the produce column for your food co-op newsletter, you’re gold.

As part of the process, the applicant has to show proof that he or she covered a certain number of major events within the past two years, a barrier-to-entry hurdle for those in a fledging news organization denied access to many major events. Furthermore, the qualification for these major events are those that give deference and respect to the powers that be– events that had an NYPD detailed presence, and mayoral and/or city council press announcements.

In other words, the only news that counts is that which covers officially-sanctioned events which flatter the egos of politicians, which is why Gothamist’s “Occupy Wall Street” coverage was rejected(!) even though there was an overwhelming police presence at what could anyways be considered a significant news event absent the NYPD.

Ladies and gentlemen, so much for an “independent” news media.

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The Perils of Positive Law

Classificationism, Education, Legal System, Libertarian Theory
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Just a couple days ago the New York City council voted to ban the practice by sanitation workers to sticker the window of vehicles that were violating the alternate-side street cleaning rules. Whilst the vehicle’s owner would still receive a parking violation fine, they are no longer allowed to punish drivers by defacing their vehicles with the hard-to-remove stickers. While I find the ban agreeable, I have a bone to pick with the general legislative approach.

One of the problems with positive law is that the mindset it encourages is antithetical to what should otherwise be a presumptive prohibition of aggression and the security of both property and personal liberties. Unlike the “negative” rights of common law, the legislative process of positive law will all too often err and enshrine legal principles that are unjust. This is not to say that legislators do not get it right sometimes– for example laws that prohibit murder, theft and fraud are all [potentially] perfectly just laws.

With a positive law mindset, actions that are not yet defined in the statutes lie in a grey area neither prohibited nor permitted “under the law”.  And later, if ever, when the statutes are codified, the result could be in having laws that don’t prohibit or permit enough, or in fact laws that prohibit or permit too much.  This is a problem inherent to a process that tries to encapsulate the entire range of possible actions and to explicitly codify them into the written law.

The presumptions now change- anything not explicitly forbidden is arguably permissible. Actions which are now prohibited lie beyond the reach of justice if they were carried out before the law was passed under the legal principle ex post facto. Of course it doesn’t necessarily have to be this way– laws that forbids theft and injury could already be understood to include all forms of theft, damage and injury without the codification of specific actions, i.e. “killing with a knife in the right hand using a stabbing motion”. What the positivist mindset encourages is the tendency to look at the codified word as the source of justice, so that one could then hair-split it so that the actual action is not specified and thereby not prohibited.

That said, property defacement should be considered a forbidden action (regardless of the actual codified law) and therefore there was no actual need for a specific law to ban the stickering practice. Instead the government could have enforced the already existing laws against property defacement to stop this punitive, vindictive crime.

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The Power To Classify Is The Power To Destroy

Classificationism
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The state has a fetish for categorizing and classifying things, as if the label you “officially” stick on things changes reality. Yet that classification has legislative teeth. Lately I have become more aware of this destructive power. Not because it comes from the state–I am already used to that, but because often times government agencies, part of the executive branch, are the ones operating under rather wide legislative powers granted by Congress. None of this is new, of course. It just seems that it is becoming more prominent as the number of bureaucracies and bureaucrats continues to increase.

Instead of private law or contracts or generally accepted, time-honored societal agreements, the state corrupts reason and destroys language, replacing common sense with legislative fiat, all while making us more depending on the state to determine what reality is and how we deal with others.

Examples abound. The state controls the definitions of marriage (and of divorce, of course). The state defines who is an employee, who is an employer, and whether you have had “income.” Is Julian Assange a journalist? If he “is,” then according to the state he is treated in a specific way.

Classificationism goes hand in hand with licensing and other forms of control and regulation. If you want to open a kitchen or restaurant, better have the proper licensing. Usually the state will require licenses if you have a certain number of customers or some other category. Then, legally, you “are not” a “restaurant” if you do not meet the guidelines required for the license. But if you do, then magically you and your property are subject to the state’s magical incantation (also known as legislation). The FCC has recently been trying to reclassify ISPs so that they fall under the agency’s telecommunications category, extending the FCC’s power to control the internet.

A rather egregious and recent example of, in this case, re-classificationism, has to do with Obama’s administration trying to “crack down” on companies that treat workers as independent contractors instead of employees (so that unions do not have access to those workers). The IRS and other agencies can determine if someone is a “contractor” or an “employee.”

Even when it comes to the basic rights that the government is “supposed” to protect, classificationism exists. Is email like regular mail?. Is there an expectation of privacy? It all depends on how the bureaucrats massage language in the political arena.

Should e-cigarrettes be regulated like real cigarettes? What “is” a “firearm” or a “machinegun”? Or an “assault weapon”? Where“is” Emmanuel’s “residence”? What is a “controlled substance”? (A toy soldier “is” a “firearm” in British airports, by the way).

One could point out that the agencies in charge will have to have rules and regulations of their own, as the details of implementing and executing Congressional mandates lies with them. That is certainly correct. However, it is striking to see just how much agencies can control by merely moving from category to category entire industries, peoples, occupation, objects and actions. The power to classify is the power to destroy.

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