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View Diary: Hobby Lobby: Does RFRA violate the Establishment Clause? (263 comments)

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  •  We don't know about Alito (1+ / 0-)
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    Beelzebubs Brass Bs

    But Roberts, Kennedy, Thomas, and Scalia upheld a religious group's claim that the government couldn't stop it from importing and consuming ayahuasca.  

    •  But that was a specifically religious organization (2+ / 0-)
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      Back In Blue, JerryNA

      rather than a secular corporation. A specifically religious group is defined differently under that law and has long had protections that general incorporation does not offer for religious practice while preventing those same religious organizations from gaining many of the advantages of a corporation. The case you refer to simply does not apply here.

      Strategy without tactics is the slowest route to victory, tactics without strategy is the noise before defeat. Sun Tzu The Art of War

      by Stwriley on Wed Mar 26, 2014 at 05:10:51 PM PDT

      [ Parent ]

      •  As was asked in the oral arguments, (0+ / 0-)

        If an individual engaged in a for profit activity can have religious rights and if an incorporated non-profit entity can have religious rights, then what is the argument that an incorporated for-profit entity cannot have religious rights?

        •  That's not really a hard question. (1+ / 0-)
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          JerryNA

          It breaks down pretty quickly under scrutiny, based on the nature of individual rights and incorporation laws.

          The individual's non-religious activities, for-profit or otherwise, are not germane to their Constitutional right of free exercise of religion. That right is and has always been an absolute (as much as anything can be in a Common Law system) that has no relation to other rights an individual may or may not have (the right to engage in a particular type of secular business, for instance.)

          Any non-profit entity does not have inherent religious rights under the Constitution any more than any other incorporated entity does unless it chooses to accept the very limited form of incorporation provided for by law to explicitly religious organizations to enable them to conduct their religious activities. That includes the provision of being non-profit as well as significant restrictions of other rights that individuals and other types of corporation may enjoy. This is a matter of law that was established explicitly for this particular type of corporation in order to facilitate the exercise of their chosen religion by individuals associated with that corporation.

          A for-profit entity incorporated under the laws governing general incorporation (which is what businesses like Hobby Lobby are) has no religious rights whatsoever, since it is specifically limited from exercising "matters of conscience" by both law and court precedent. These types of corporation have far more rights in other areas (economic, political, etc.) that are denied by law to the religious non-profit corporation, because the purpose of allowing them to incorporate and exercise legal rights is different and has been enshrined in law and backed by precedent since the earliest days of incorporation in the United States.

          Remember that all rights of corporate "personhood" are derived from the laws that establish them. It is thus quite easy to distinguish between the three example you give, since each has a different basis for the rights they claim under the law and the Constitution.

          Strategy without tactics is the slowest route to victory, tactics without strategy is the noise before defeat. Sun Tzu The Art of War

          by Stwriley on Thu Mar 27, 2014 at 04:56:48 AM PDT

          [ Parent ]

          •  You assume false facts and make unsupported (0+ / 0-)

            leaps of logic.

            The individual's non-religious activities, for-profit or otherwise, are not germane to their Constitutional right of free exercise of religion. That right is and has always been an absolute (as much as anything can be in a Common Law system) that has no relation to other rights an individual may or may not have (the right to engage in a particular type of secular business, for instance.)
            Absolutely untrue.  For example, it would be absolutely and blatantly unconstitutional to pass a law requiring all people engaged in business X not to be Jewish or requiring all people engaged in business X to have uncovered heads.
            Any non-profit entity does not have inherent religious rights under the Constitution any more than any other incorporated entity does unless it chooses to accept the very limited form of incorporation provided for by law to explicitly religious organizations to enable them to conduct their religious activities.  That includes the provision of being non-profit as well as significant restrictions of other rights that individuals and other types of corporation may enjoy. This is a matter of law that was established explicitly for this particular type of corporation in order to facilitate the exercise of their chosen religion by individuals associated with that corporation.
            I am not aware of any "very limited form of incorporation provided for by law to explicitly religious organizations to enable them to conduct their religious activities".  As far as I know, religious organizations incorporate their various entities as non-profits or for-profits.  There is no special form of incorporation for them.  Now, incorporation is covered by state law, not federal, so it is certainly possible that one or more states have special forms of incorporation for religious entities, but if so I'm not aware of them and it is certainly not the norm.  Can you please provide your evidence for your claim?
            A for-profit entity incorporated under the laws governing general incorporation (which is what businesses like Hobby Lobby are) has no religious rights whatsoever, since it is specifically limited from exercising "matters of conscience" by both law and court precedent.
            Please cite the laws and court precedents you are referring to.  As I understand it, this is one of the issues in the Hobby Lobby case and there is little or no law or precedent on this issue.
            •  Anything can be willfully misconstrued... (0+ / 0-)

              as your comment proves quite nicely. Let's take a look at where you went off the rails.

              First, you seem to have some trouble with the difference between an individual engaging in secular and religious activities and between the actions of individuals and governments. As I said, the individual's right to religious expression is guaranteed and this is not germane to their secular activities. What you reply with is an example of an individual being specifically denied something by law on the basis of religion, the very thing my statement clearly rejects. The government could bar that individual from acting as, for instance, a doctor because he refuses to get a medical license (a secular reason for denying him access to a secular business) without him being able to raise a religious objection because that would inherently not apply to the secular activity being denied or the secular reason for denial.

              Second, just because you are not aware of the special incorporation status of religious 501(c)3 corporations (which all religious organizations and their non-profit charitable arms are) does not mean it doesn't exist. This type of incorporation specifically denies to the religious organization such things as the right of direct political action and advocacy (just ask any church that's had it's incorporation converted to for-profit status and lost the privileges of the 501(c)3 religious designation, like the limitations on federal audits and exemption from filing Form 990 financial statements, how well that went for them.) Most states also have special privileges for religious organizations that even other non-profits do not enjoy. For instance, here in Pennsylvania, religious non-profits are exempt from the filing requirements that other non-profits (except very small ones) must obey:

              Who is exempt from filing an Institution of Purely Public Charity Registration Statement?

              The only two exemptions from the Institutions of Purely Public Charity Act are:  1) Bona fide, duly constituted religious institutions and such separate groups or corporations that form an integral part of a religious institution and are exempt from filing an annual IRS 990 Return, and 2) an institution of purely public charity that receives contributions of less than $25,000 per year provided that the institution's program service revenue does not equal or exceed $5,000,000.

              So, in fact, religious incorporation does carry very special privileges that no other form has.

              On the final point, there is a clear distinction in all incorporation laws that separates (as I pointed out above) secular for-profit corporation from religious non-profit one for many purposes. For-profit entities have been denied several constitutional rights that have to do with things inherently human in nature (5th Amendment rights, for instance, which have never successfully been advanced by a for-profit corporation.) Not only that, but even case law confirming the right of explicitly religious non-profit corporations to certain elements of the right of conscience have also confirmed that such rights do not apply to for-profit entities, especially Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos (1987).

              While you are passionate in your attempt to wedge in more rights for corporations under the guise of "religious freedom" or whatever other cloak is convenient, you really need to learn a bit about the law (and not make statements in counter-argument like "I am not aware of any..." since they only prove your ignorance rather than actually refute anything) before you try to argue with someone who does.

              Strategy without tactics is the slowest route to victory, tactics without strategy is the noise before defeat. Sun Tzu The Art of War

              by Stwriley on Thu Mar 27, 2014 at 08:06:29 PM PDT

              [ Parent ]

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