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Response to octoberlib (Original post)

Mon Jun 30, 2014, 11:27 AM

23. Here is the Actual Opinion

 

Last edited Mon Jun 30, 2014, 12:24 PM - Edit history (1)

http://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf

A couple of Comments:

1. The Dissent divided on Corporations. Ginsburg and Somtomayor were willing to rule Corporations can NOT be a person for this litigation, while Breyer and Kagan were more then willing to say Corporations had such a right.

2. This action revolved around the "Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488,
42 U. S. C. 2000bb" NOT the First Amendment.

Now, the RFRA was passed right after the Court Ruled the First Amendment did NOT protect a Native American from a Criminal Conviction for smoking Peyote during a Native American Religious ceremony. The RFRA made it the rule that any Federal Law MUST be the least restrictive means of serving a compelling state interest. This is where the dissent and the Majority divided. The Majority said that it was a violation of the RFRA when the Federal Government told a corporation it must provided Birth Control medical care AND it was NOT a Compelling state reason given that the same Federal Agency had a procedures in place for non-profits that did provide an exception to the Birth Control Mandate.

The Scary part is, reading the opinion, and its refusal to address ANY First Amendment arguments implies to me that if any of the five did NOT think the RFRA did not apply to this case, they would have ruled that Under the First Amendment the Government could mandate that an employer provided medical coverage Hobby Lobby would have lost.

The RFRA was passed to reverse the decision of Justice Scalia in 1991 called "Employment Division, Department of Human Resources of Oregon v. Smith" In that case Scalia ruled that under the First Amendment the previous practice since the 1960s to balance between Religious Freedom and Compelling state interest was NO longer going to be the rule, instead the rule was going to be the law was constitutional if it was neutral on its face, even if it affects someone's strongly held religious beliefs.

http://www.law.cornell.edu/supremecourt/text/494/872

Thus the First Amendment was avoided to keep Scalia AND Kennedy on the side of the Majority. Both had been on the Court in 1992 when Smith was decided and both agreed with that decision reversing what had been the rule in the US Supreme Court since the 1960s.

Now, Congress was upset about that ruling, for it had far reaching affects, thus Congress in 1994 passed the RFRA to restore what had been the US Supreme Court rule since the 1960s. Thus this decision is based on the RFRA not the First Amendment, and it appears the reason it does NOT mention the First Amendment is Scalia and/or Kennedy would have wrote an concurring opinion OR join the dissent. A concurring opinion would have made this case restricted to the parties named in the case, with limited affect outside this case.

Just a comment on this case.

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