Remembering Alexander Bickel’s passive virtues and the Hobby Lobby cases

In the Hobby Lobby cases, five male Justices of the Supreme Court, who are all members of the Catholic faith and who each were appointed by a President who hailed from the Republican party, decided that a huge corporation, with thousands of employees and gargantuan revenues, was a “person” entitled to assert a religious objection to the Affordable Care Act’s contraception mandate because that corporation was “closely held” by family members. To the average person, the result looks stupid and smells worse.

To most people, the decision looks stupid ’cause corporations are not persons, all the legal mumbo jumbo notwithstanding. The decision looks misogynistic because the majority were all men. It looks partisan because all were appointed by a Republican. The decision looks religiously motivated because each member of the majority belongs to the Catholic church, and that religious organization is opposed to contraception. While “looks” don’t matter to the logic of the law (and I am not saying the Justices are actually motivated by such things), all of us know from experience that appearances matter to the public’s acceptance of the law.*

The Hobby Lobby cases illustrate why the Court ought to care more about Alexander Bickel’spassive virtues“–that is, not deciding highly controversial cases (most of the time) if the Court can avoid the dispute.** What would have happened if the Supreme Court simply decided not to take the Hobby Lobby cases?  What harm would have befallen the nation? What harm would have befallen Hobby Lobby family members who would  have been free to express their religious beliefs as real persons? Had the Court sat on the sidelines, I don’t think any significant harm would have occurred. The most likely result is that one or more of the political branches of government would have worked something out. Or not. In any event, out of well over 300 million people, who would have cared if the law in different Circuits was different or the ACA’s contraception mandate was up in the air?

Next term is the time for the Supreme Court to go quiescent–this term and several past terms have proven that the Court is now causing more harm (division) to our democracy than good by deciding hot button cases that the Court has the power to avoid. As the kids say, it is time for the Court to stfu.***

*“Americans continue to take a dim view of the U.S. Supreme Court’s performance, perhaps in part because most still think the justices base their decisions on their own political agenda rather than the law.” Rasmusssen Reports, (Tuesday, June 24, 2014) (Only “26% Rate Supreme Court’s Performance Positively.”).

**Bickel was not trying to protect the Court itself. On the contrary, he realized that there were “hot button” cases that an anti-democratic Court would of necessity be required to resolve. It was for those rare “fate of the nation” cases, where the Court’s legitimacy mattered most to public acceptance of a really important decision, that required the Court to conserve this very scare resource.

***Thanks to June Edwards, one of the smartest lawyers I know, for stimulating this post last evening (July 4, 2014) as we sat on her pleasant patio overlooking a fire works display that illuminated the entire City of Omaha from our perch in the western hills. By the way, Charlie, the dog, was fine because Joan must have fed him 3 or 4 burgers plus all manner of other treats.

314 responses

  1. RGK,
    I agree. My greatest nightmare is that we have an actual case of President Jackson’s anecdotal comment on the Worcestor case:

    http://en.wikipedia.org/wiki/Worcester_v._Georgia

    If that happens, this cornerstone of democracy will tremble and begin to crack.

    I wish that the Supreme Court would start using its discretion a bit more. Americans don’t look to the court as the ultimate arbiter so much as a biased result of the political process. That’s a bad road to be on.

    • I think we should hold our self-appointed dictators accountable. Telling them to pound sand every once in a while would be healthy.

      Putting a few in jail would even be healthier. Jail4Judges!!!

    • Your argument should be with Congress, not the Supreme Court, which got this right.

      It’s the Supreme Court’s job to resolve splits among the lower courts, which morally obligated it to hear this case to prevent such splits. As a lawyer, I appreciate clarity in the law, and dislike it when lazy justices punt on resolving circuit splits.

      And here, the Supreme Court correctly applied the very laws passed by a democratically-elected Congress: (1) the Religious Freedom Restoration Act (which requires very broad religious exemptions, unless the government can show not just a compelling government interest served in denying the exemption, but also that the denial was the least restrict means of promoting that interest); and (2) the Dictionary Act, which (rightly or wrongly) treats corporations as “people” for purposes of federal statutory law (like RFRA).

      I don’t share Hobby Lobby’s objection to contraceptives. I quite like contraceptives. (As a non-profit lawyer, I could not afford a gaggle of offspring, even if my wife’s mother would like a lot more grandchildren). But it’s not my job to dictate Hobby Lobby’s religious beliefs, or ignore the plain language of the religious-freedom statute Congress passed (which doesn’t exclude religious beliefs just because they strike people as weird or archaic).

      The liberal lawmakers complaining about this decision foreordained it by passing RFRA back in 1993. Didn’t they even read the law they enacted before voting for it? I am surprised the decision was 5-to-4, rather than 6-to-3 or 7-to-2 (like the 9-to-0 ruling against the Obama administration in the Hosanna Tabor case).

      • You overlook how SCOTUS ignored the First Amendment while applying those two laws passed by Congress. Isn’t the Constitution supposed to be their lodestone? How can an employer (corporation) have more right to freedom of religion than an employee (person)?

        • I’m not aware of any religion that has a tenet that all employers must provide contraceptives for their employees. But if one exists, and one of their adherents works for Hobby Lobby, then we could actually have an interesting case of conflicting rights.

          • Not everyone believes life begins at conception, and even among those who do, there are those who believe the science over the spin about the so-called abortifacients. But the SCOTUS decision says the employer’s beliefs (faith and misinformation alike) apply to all employees, no matter their personal beliefs. As a result, a financial penalty is essentially imposed on those who believe otherwise, either by paying (or paying more) for the birth control method that is best suited to the individual woman (yes, the expensive IUD is the only real option for some women), or by changing jobs.

        • The part you are not considering is that all that was decided is that Hobby Lobby doesn’t have to pay for their contraceptives. So the logical outcome would be that they don’t have to pay for the employees free speech. The employee can still enact their right to free speech in this instance buy purchasing contraceptives. I personally don’t have any issues with contraceptives and think they should be subsidized heavily to decrease unwanted pregnancies but with that being said I don’t think I have the right to make you pay for my contraceptives. That is what SCOTUS says.

          • Where is the giant like button for this post? The ruling doesn’t prevent an employee from using contraceptives, just that Hobby Lobby doesn’t have to pay for a specific four. I may believe in drinking wine for my health, my employer isn’t required to buy it for me.

    • In light of this and other equally asinine rulings, again I ask, what can we as a nation do to remove highly partisan Supreme Court Justices? Is impeachment an option? Also, can we as a majority make changes to how Supreme Court Justices are appointed?

      • let me guess … asinine because you dont agree. Perhaps you should take up the issue with those who passed the “Religious Freedom Restoration Act “, which the court found this violates. By the way RFRA was signed by bill clinton.

      • In light of this and other equally asinine rulings, again I ask, what can we as a nation do to remove highly partisan Supreme Court Justices? Is impeachment an option?

        Impeachment is allowed in the Constitution, but good luck trying to start impeachment proceedings in a way that doesn’t appear highly partisan itself.

      • I guess you won’t mind when I ask you to pay for my contraceptives??? That essentially is what this ruling says. That the employer doesn’t have to pay for contraceptives if it is against their religious beliefs. It was a very controversial decision to include that clause in the ACA in the first place and now it has been ruled unconstitutional. A great many of the parts of the ACA will most likely be watered down as the public learns more about the intrusion that the federal government has made into their lives. Now that the decision has been easily explained to you maybe you can use your head rather than emotions to discuss your thoughts.

    • Wow! so its your opinion that SCOTUS AVOID hot button issues for the sake of “political consequences”. Thats what politicians do! In fact, i belive the court needs to take no MORE issues like this in order to put certain matters finally to rest!

    • The cornerstones of Democracy began their now widening cracking when the CIA was able to kill JFK and the Warren Commission covered it up. So no need to worry about that; this country is clearly in the Decline and Fall stage.

    • The contraceptive mandate was established by regulation after the law was passed and after the proponents of Obamacare lied about their intentions in this regard. That’s because many leftists despise religious people (it’s the “opiate of the masses” don’t you know, and religious belief often provides the strength to resist policies the left wishes to impose. Since the mandate was added specifically to stick beans in the noses of Catholics, but other religious groups too, the SC made the correct decision. On the law too. I don’t know why the RFRA was necessary, since religious expression is protected by the Constitution, but the overwhelming majority of Democrats who supported it, including the Clintons, must have felt a need to further protect it.

      I would point out that there are other cases in which religion trumps law: peyote use for certain Indians, conscientious objection, school attendance by the Amish, and probably others. I don’t remember hearing a lot of leftist blather opposing the religious exemption in the peyote case, for example.

  2. In other words, it’s fine if the other guy loses his rights. The institution is more important than those it is supposed to protect.

    Ask your neighbor if he is willing to take one for your team.

    • “The other guy” in this case was the Hobby Lobby corporation. He, she or it is not my neighbor or yours. He, she or it has no religious rights to lose.

      • There is no expression of pure idiocy, ignorance and mental retardation than to make a claim and offer it as fact RIGHT AFTER the SCOTUS ruled otherwise. OF course the Green family has religious rights; every American citizen does no matter where they work and even if they don’t!

        • Then why did SCOTUS stomp on every Hobby Lobby employees’ rights to favor the Green family?

          • Can you please explain what “right” you think SCOTUS stomped on? Have the employees of Hobby Lobby been banned from buying rubbers at the local drug store? Is it now illegal for the Hobby Lobby employees to purchase a contraception?

            • The right SCOTUS stomped on was the right for employees to be free of employer control of how they use their non-cash payment. The notion is apparently that if there is conflict between the employee’s and employer’s religious beliefs over what sort of medical treatment is acceptable, the employer’s view wins. And that’s without regard to what doctors or scientists think; the beliefs don’t have to be rational or true. There’s also the idiotic notion that corporations can have religious views, which is rife with potential for further imposition of religion.

              I will grant that this absurdity is only built on a historical quirk, that we handle health care through employment, rather than just taxing everybody and providing it broadly in one fashion or another. So things were bound to come out at least a little weird.

              The Republicans have been open about trying to pick ideologically reliable judges for the Supreme Court, and from my non-lawyer perspective, it looks to me like they have succeeded. As Judge Kopf says, that undermines my trust in the law. At the very least, I think they had an obligation here to make their reasoning especially clear, detailed, and principled. Whatever you think of the outcome, it’s hard to argue that they’ve managed to persuade people who disagree with them that their position is rational and well-considered.

              • People have taken “rights” to a whole new level that is not contemplated in the founding documents. Life, Liberty and Pursuit of happiness was not impacted by this decision in any way, unless you think making someone else pay for your recreational sex is a “right”.

                There are arguments in the ruling that create opportunity for debate, largely because the ACA I do not agree with and creates these opportunities for confusion. Which is why POTUS sets aside or delays any decision that assists him or Democrats politically.

                I am an entrepreneur and make compensation decisions all the time to attract and retain talent. However, I do not use any means of attracting someone that conflicts with my values and/or moral compass. This may offend many, but its MY COMPANY, I started it. Even if its the only job in town, you don’t have to take it. I don’t care if you are offended that my benefits do not cover things you think are a “right”.

                As long as the American spirit contains the freedom to operate for our core values of individual liberty, responsibility and accountability we will be fine, but considering the FED is putting more people on the payroll through programs than there are paying for those programs, personal responsibility and accountability may have its days numbered. You should always have the freedom to make your own choices as long as YOU can and are willing to pay for them and YOU are accountable for the results.

          • I guess you won’t mind when I ask you to pay for my contraceptives??? That essentially is what this ruling says. That the employer doesn’t have to pay for contraceptives if it is against their religious beliefs. It was a very controversial decision to include that clause in the ACA in the first place and now it has been ruled unconstitutional. A great many of the parts of the ACA will most likely be watered down as the public learns more about the intrusion that the federal government has made into their lives.

  3. Dear Rich,

    Your insightful post brings to mind a passage in Ted Sorensen’s book “Counselor,” in which he looks back with distain on the judicial nomination process that caused FDR to pass over Sorensen’s dad (Nebraska Attorney General C.A. Sorensen) for a Catholic nominee, Judge Delehant. C.A. was a Unitarian, and it was a Catholic’s “turn.” Of course, in those days no one was concerned about judicial diversity based on sex or race, but a nominee’s religion was an important consideration when striving for a diverse bench.

    When I took the bench in Omaha, some people thought I added diversity because I’m female. Since LES, TMS, JFB, TDT, and FG3 were/are all Catholic, perhaps I added another kind of diversity. Has either kind really mattered? Hard to tell. But there is no doubt that factors such as our sex, race, ethnicity, social class, religion, and early upbringing affect our core beliefs.

    And yes, June is one of the smartest people around. I’m glad you had the opportunity to share good conversation and fireworks together.

    Keep blogging. I can tell the progress of your health by the length and depth of your posts.

    Laurie

    • Laurie,

      I will keep blogging. It lifts my spirits.

      As for diversity, to my mind, what is most important is intellectual diversity. Among other things, that is why I was overjoyed when you were appointed. Your stewardship as our Chief Judge has proven over and over again that our little court has much to be proud of even though we exist in “fly over” country.

      All the best.

      RGK

      PS As for my sister-in-law, and the rest of the women like June, Becky Ross and yourself who came to the UNL College of law soon after my class of 1972 graduated without one woman, I am sorry that I missed the opportunity to know you all then. I would have been a better lawyer and person had I had that opportunity. I learned that lesson very quickly when Ann M. Galvani became my co-clerk with Judge Ross. She was (and is) brilliant, funny, fun, caring, tough and a bit outrageous when compared to those puerile young men like myself who worried most about whether pin stripes on our charcoal suits were too bold.

      • Glad to see that your blogging lifts your spirits. This particular article certainly lifted mine. Thanks.

      • to RGK, Thank you SO much for calling them out for what they are.
        They are 5 hemorrhoids on the rectum of our court system and should be removed which would be a huge relief to the public!

        • You are much to be pitied and refudiated. You show your true anti-Americana by calling the smartest, most legally gifted men in the nation what you did, belying your own imbecilic and mentally retarded sub-sub 100 IQ.

          • Mr. Green —

            I’ll not weigh in on the substance of all of this back and forth because there’s been too much noise already. But I will suggest that you reconsider your too-facile use of “mentally retarded.” No, I’m not the word police, but I’m guessing that you could come up with another word or phrase that would serve your purpose without demeaning a whole class of folks who never did you any harm. After all, with an assist from Governor Palin, you invented the word “refudiated,” so I’m thinking you could come up with something classier when you mean to say that someone’s position is stupid.

            DRF

          • So you respond to an insult by insulting someone? That’s… brilliant! lets all engage in eye-for-someone-else’s-eye justice… on the Internet! You are so full of “win” right now, I can’t believe you have chosen to grace the Internet with your depthless wisdom and fathomless insight!

            Thank you so much for your words!

        • I guess you won’t mind when I ask you to pay for my contraceptives??? That essentially is what this ruling says. That the employer doesn’t have to pay for contraceptives if it is against their religious beliefs. It was a very controversial decision to include that clause in the ACA in the first place and now it has been ruled unconstitutional. A great many of the parts of the ACA will most likely be watered down as the public learns more about the intrusion that the federal government has made into their lives. Now that the decision has been easily explained to you maybe you can use your head rather than emotions to discuss your thoughts.

          • deleted writes:

            I guess you won’t mind when I ask you to pay for my contraceptives???

            You’re right.

            I already fund, e. g., “other people’s” educations and other “other people’s” wars — so why would I balk at helping you not reproduce yourself in the collective gene pool?

          • I’m not an American, so I don’t receive FOX News, but I don’t believe it was found unconstitutional. I believe it was found to violate the RFRA.

  4. This poor, dumb Texas layman has some thoughts on this, offered in no particular order.

    Where is the logic in saying that a corporation is person enough to have free speech rights, but not person enough to have another right, acknowledged in the same Amendment prior to the free speech bit, free exercise?

    Related to that, but really only a subset of it, where is the logic that says a small number of men who run a business and have openly operated that business in accordance with their religious tenets cannot freely exercise their belief through their business?

    Underlying both of those is the fact that, at bottom, businesses are not at all separate entities but merely agencies of the men who own them. I claim from this that an argument that 68,000 owners of General Electric are too many to have, as a body, any religious beliefs is a sophistry. Apart from denying these men their free exercise right solely on the basis of their membership in a list too large to suit some, larger entities—whole nations—have been founded and live today on the religious beliefs—and the toleration of religious beliefs—of the members.

    What harm would have befallen Hobby Lobby family members who would have been free to express their religious beliefs as real persons?

    My answer here answers your related questions, also. A great deal of religious and moral harm would have been inflicted on the Hobby Lobby family members. In fact, had the Supremes not ruled as they had, or had they ducked the case altogether (no surprise: I think the Supremes should have ruled more broadly), the family would have been forced to violate their religious tenets or quit their business. A man can’t check his religion at the exit to his church, not can he, more narrowly, at the entrance to his place of business. The tenets infuse men’s lives; we must live our beliefs, not just espouse them in response to the preacher’s call. Thus, the Hobby Lobby family must live their tenets through their business as well as in their personal lives. Lack of the ruling the Supremes did render would have denied them that.

    This is illustrated by Wheaton College’s concern:

    Wheaton believes that authorizing its [insurance administrator] to provide these drugs in Wheaton’s place makes it complicit in grave moral evil,” the college said in its injunction application filed Sunday with the court. “Wheaton can neither provide the mandated coverage nor execute and deliver” forms that prompt others to do so.

    It’s not the money, as some have claimed—it’s being forced to participate at all in a violation of a religious tenet. Indeed, it’s solely about a man being forced to participate in what is a violation of his religion.

    The political branches still can “work something out.” Nothing in the ruling prevents that.

    Finally, why shouldn’t the courts take on the controversial cases and work the underlying principles—especially the Supreme Court and Constitutional principles—rather than ducking the question by avoiding the case altogether or ruling as narrowly as possible? How many lesser cases would be preempted and made unnecessary if the courts were to clarify the broad underlying principle? Americans are too ignorant to understand what the courts would be doing in such cases? Perhaps, but that’s the failure of our civics training and of our education system generally, not a failing of the courts.

    In the end, [t]o the average person, the result looks stupid and smells worse. Respectfully, no, Sir, the result does not at all look stupid or smell worse. Not to this average Joe.

    And I ask a question on the flip side: what harm will befall Hobby Lobby employees by not having their contraceptives covered by a Hobby Lobby policy?

    Eric Hines

    • Eric,

      Well argued my friend. For now, it is enough to say that the Court is not a democratic institution. It is fundamentally undemocratic. It blew up a law that that passed Congress (albeit with a Cornhusker kickback). We need the Court to act as an undemocratic brake, but we don’t need it too much and too often. All the best.

      RGK

      • Whenever the so-called “Cornhusker Kickback” rears its head, I feel obliged to point out that the House did in fact pass the Senate bill that included this provision, it did so with the understanding that the politically toxic provision would be removed. That same day, it passed legislation (using reconciliation procedures) to repeal it.

        Technically speaking, the provision was the law for a week. As a practical matter it had been dead for months.

      • No, it didn’t blow up a law passed by Congress. It invalidated just the application of one regulation (not the law itself) as applied to just religious objectors (the regulation remains applicable to everyone else).

        The law never would have been enacted had it included this regulation.
        The healthcare law passed Congress with essentially no votes to spare. Some of the “pro-life” Democrats backing the bill like Bart Stupak (there still were some in Congress back in 2010) would not have voted for the law had it included mandatory coverage of contraceptives, much less what were perceived by some as abortifacients (see law professor Jonathan Adler’s discussion of the latter at the Washington Post).

        I say this as someone with no objections to birth control (I am an agnostic) who thinks the Court got it right as a matter of plain statutory construction (of RFRA, which broadly confers religious exemptions, and the Dictionary Act, which treats companies as “persons”).

      • With all due respect, the Court did not blow up a law that passed Congress. The ACA itself (all 2,000+ pages of it) did not require that all insurance policies cover all types of birth control at no expense to the insured. That was purely an agency rule passed by Health and Human Services. If anything was blown up, it would be a rule passed by a federal agency, not by Congress itself.

        This one particular case, in this one particular circumstance, was decided correctly.

    • Pure, distilled BS

      Their so-called “religious rights” don’t trump the rights of their employees. They have the right to not use birth control themselves. They don’t have the right to make decisions for their employees and dictate how they use their compensation.

      This all comes down to people not understand how insurance works. The company only pays for insurance. It’s the insurance company that deals with the medical side. So HL was completely isolated from what’s going on.

      Never mind the fact that they covered it for years and only decided to make a fuss once Obama became President.

      • “Their so-called ‘religious rights’ don’t trump the rights of their employees.”

        What employees’ “rights” are you talking about? The “right” to have the government force someone else, even an insurance company, to pay for the employees’ contraception? Where the heck is that in the Constitution? I mean that is the “right” you are talking about, not the right to contraception, which already exists and is not affected by this ruling.

      • It’s the doctor/patient relationship and not the doctor/employer relationship to be overseen by a council of five Catholic men in black robes.

        • Employers’ 1st amendment and RFRA protected rights trump the benefits and privileges (not rights) of their employees which are NOT guaranteed but earned through the sale of the latters’ labor, with either party able to terminate the negotiated terms of labor with simple notice and termination. The employer is no more forced to employ the employee than the employee is forced to labor for the employer. Sometimes, it’s just time to move on.

          • How do you feel about a panel of judges choosing which religious beliefs are important enough to get special exemptions and which are not. That is the mess that the court just created.

            • I feel fantastic because they just ruled everyone’s religious rights are protected – no matter what hat they wear and whether they’re an employer or employee. We protected the former’s without abrogating the latter’s whose access to baby-killing devices and drugs have not yet been denied; they just have to pay to kill their own progeny. Hobby Lobby and their ilk refudiate killing babies in utero and that’s on the basis of religion and morality which John Adams said were the sine qua nons of our nation and preserving, protecting and defending the Constitution, so help U.S. God.

              “We have no government armed with power capable of contending with human passions unbridled by morality and religion. Avarice, ambition, revenge or gallantry would break the strongest cords of our Constitution as a whale goes through a net. Our Constitution is designed only for a moral and religious people. It is wholly inadequate for any other.” — John Adams

              • “baby-killing”

                This is how one knows one is dealing with a white male christian fundamentalist.

                And who’s ‘we’, motherfucker?

                Your argument of how a poor employees’ rights and access to healthcare are ‘protected’ reminds me of this quote by Anatole France:

                “In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets, and steal loaves of bread.”

                You absolutely know it will restrict access to birthcontrol for many thousands of women. You know many of them will have difficulty obtaining it out of pocket.

                You gave your self away, you very much know this has nothing to do with ‘protecting’ employee rights and it has everything to do with denying access to birth control.

              • Everyone?

                The Jehovah Witness corporation’s right not to provide blood transfusion coverage?
                The Scientologist corporation’s right to deny mental health coverage?
                The anti-gay Christian corporation’s right to discriminate against homosexuals?
                The racist Christian corporation’s (see Bob Jones or Christian Identity) right to discriminate?
                The anti-vaxer’s religious freedom?

                All of them?

            • He’s A-OK with this since it increases the privilege of wealthy white male fundamentalist christians at the expense of everyone else’s rights. As intended.

      • I guess you won’t mind when I ask you to pay for my contraceptives??? That essentially is what this ruling says. That the employer doesn’t have to pay for contraceptives if it is against their religious beliefs. It was a very controversial decision to include that clause in the ACA in the first place and now it has been ruled unconstitutional. A great many of the parts of the ACA will most likely be watered down as the public learns more about the intrusion that the federal government has made into their lives. Now that the decision has been easily explained to you maybe you can use your head rather than emotions to discuss your thoughts.

      • I have been looking in vain for support for my opinion on the Hobby Lobby case. And I have found it in Steve’s comments.
        Why was the issue not treated as a matter related to the the labour contract and not an issue of religious freedom ?
        Hobby Lobby makes payments to discharge a liability it has incurred to its employees by virtue of the employees having performed their obligations. They do not provide the insurance.
        As insurance is part of the compensation package which also includes wages, why, on the basis of the Hobby Lobby case, should Hobby Lobby not also be able to enforce the Green’s religious belief by dictating on what wages can be spent? After all, their objection is to funding the contraceptives to which they object.
        On a separate tack, not all shareholders of a “closely held” corporation will necessarily have the same religious beliefs. If Hobby Lobby had, say, five equal shareholders and only two were the Greens, would the Court have enforced the Greens position against the three making up the majority three? If not why not?
        I am not a lawyer so would welcome comments.

    • Thanks for your thoughts.

      Did you know that Hobby Lobby’s retirement plan makes money by investing in firms that produce contraceptives and abortion drugs?

      Writing in April this year, Molly Redden reported in Mother Jones that:

      [While] it was suing the government, Hobby Lobby spent millions of dollars on an employee retirement plan that invested in the manufacturers of the same contraceptive products the firm’s owners cite in their lawsuit.

      [The] Hobby Lobby 401(k) employee retirement plan held more than $73 million in mutual funds with investments in companies that produce emergency contraceptive pills, intrauterine devices, and drugs commonly used in abortions. Hobby Lobby makes large matching contributions to this company-sponsored 401(k).

      Several of the mutual funds in Hobby Lobby’s retirement plan have stock holdings in companies that manufacture the specific drugs and devices that the Green family, which owns Hobby Lobby, is fighting to keep out of Hobby Lobby’s health care policies: the emergency contraceptive pills Plan B and Ella, and copper and hormonal intrauterine devices.

      You write:

      In fact, had the Supremes not ruled as they had, or had they ducked the case altogether (no surprise: I think the Supremes should have ruled more broadly), the family would have been forced to violate their religious tenets or quit their business. A man can’t check his religion at the exit to his church, not can he, more narrowly, at the entrance to his place of business. The tenets infuse men’s lives; we must live our beliefs, not just espouse them in response to the preacher’s call. Thus, the Hobby Lobby family must live their tenets through their business as well as in their personal lives.

      Perhaps you’d care to revise and amend your remarks?

      Thanks again.

      • Did you know that the “retirement plan” in question is a 401(k), and thus the money invested is not Hobby Lobby’s money, but in fact Hobby Lobby employees’ money. That is, the question should be:

        “Did you know that Hobby Lobby employees are allowed to invest their 401(k)s in firms that produce contraceptive abortion drugs?”

        And the answer I have for that question is “who cares? and how does that reflect on Hobby Lobby or the Green family in any way?”

        Although, the fact that neither Redden nor her editor appears to have a clear understanding of how 401(k)s work suggests that Mother Jones doesn’t provide a 401(k) for its employees. That does reflect on Mother Jones’ concern for its employees.

        • Dear Max … Your comment might make sense except that Hobby Lobby brags that its 401(k) plan comes with “a generous company match.” The plan is offered and sponsored by the company, as I am sure you are aware.

          Eschew sophistry.

          Thanks.

    • Your logic went off the rails with the premise that a corporate is person enough to have free speech.

      Nice to know that thousands of their employees have no religious beliefs that could be “burdened” by what their employer does to them.

      It ain’t the court’s legitimacy the conservatives are conserving here.

      And yes, it is about the money. The Greens had no moral objection to investing millions in the same companies that produce the products they supposedly are so morally against. Oh, wait. They’re morally against *other people* using them. Not making money off them.

      Funny how Jesus always benefits the profit side of the ledgers for these people.

      • Aside from the Mother Jones article that ran earlier this year, and failed to point out the money invested in “the same companies that produce the products [the Green family] supposedly are so morally against” is not actually Hobby Lobby’s money but is, in fact, Hobby Lobby employees’ money (the retirement plan is a 401(k)), I really have no idea what you could be talking about.

        Are you referring to something else?

    • You’re missing a major point here Mr. Hines. Operating from the stance that corporations hold dear, all benefits are part and parcel of the employee’s compensation for their work, regardless of whether said benefit is government mandated or not. Prior to this poorly thought out decision, all corporations were required to have a comprehensive women’s health program within their health insurance programs. Now, based on what personal beliefs the owners of a corporation claim to hold, they can skirt the benefits package required by law. Personal beliefs, which no one has any way of proving. A man can say “I believe in my heart…” such and such, but everyone reserves the right to change and adjust their personal beliefs, especially as circumstances come closer to affecting you. If someone found out that one of the daughters of the Green family had a teenage abortion, would we be forced to allow them to continue not paying for comprehensive women’s health care benefits? SHOULD we allow them to continue talking out of one side of their mouth, saving their company money, because let’s face it, you and I are both grown-up enough to know that this is what it’s about. They didn’t look at the government health insurance mandate and compare it to their bible. They looked at the mandate and said, where can we save money. What they don’t want to talk about is the fact that they using religion to to cut their emplyee’s compensation package. If you believe otherwise, the size of your foolishness rivals your home state’s square mileage.

      • I guess you won’t mind when I ask you to pay for my contraceptives??? That essentially is what this ruling says. That the employer doesn’t have to pay for contraceptives if it is against their religious beliefs. It was a very controversial decision to include that clause in the ACA in the first place and now it has been ruled unconstitutional. A great many of the parts of the ACA will most likely be watered down as the public learns more about the intrusion that the federal government has made into their lives. Now that the decision has been easily explained to you maybe you can use your head rather than emotions to discuss your thoughts.

    • If it bothers the sensibilities of the owners to allow all of their employees to access the standard medicines from the insurance plan, why have they been allowing it for years in the states that require it, and why are they profiting from them in their investments? They just have to believe it can cause an abortion, that’s all that matters, their belief however wrong. And yet they profit from these same products. Until it was included in the ACA, they were fine with paying for birth control.

    • While beautifully written and quite eloquent. Your most salient point seems to be the strongly held beliefs of the ‘closely held’ owners of HL, and what would occur if they were to forced to violate those beliefs.

      That is refuted purely by their own actions. They import goods from China which has the largest number of abortions world wide. Furthermore as part of their employment retirement savings they own stock in pharmaceutical companies that produce abortificants.

      They now have their cake and eat it too, they profit off of Countries and Businesses that are imbedded in abortion, but refuse on the grounds of Moral and Religious Belief not to provide specific Health coverage to associates because of abortificants.

    • Eric,

      Businesses really are separate entities and as separate entities they confer some pretty nice advantages on those who own them. Those advantages are a function of the fact that a corporation is regarded as a legal entity separate from its owners. Shareholders, even shareholders of closely held corporations, don’t have the right to tell the corporation what to do. If the shareholders actually dominate a corporation, then there’s a good chance that a court faced with the question simply acts as if the corporation doesn’t exist and the shareholders lose those pretty nice advantages.

      I do some corporate law and this decision troubles me because there’s a good chance that the Supreme Court just seriously messed up corporate law without considering the consequences. The question of whether a corporation has any rights because of its status as closely held is properly a question of state, not federal, law and the Supreme Court didn’t mention state law. State law governs the rights people have in their property and also governs corporations. The court didn’t mention the state in which the parties were incorporated, what that state’s corporate law or the corporate bylaws have to say about the status of the shareholders, or what the boards of directors of the parties had to say about the matter. This omission is suspicious and makes me really suspect that this was a result-driven decision.

      Also, if the Hobby Lobby owners lost, they needn’t have suffered any harm, they could simply have converted the company to something other than a corporation and done whatever they wanted.

      Finally, “the logic in saying that a corporation is person enough to have free speech rights, but not person enough to have another right” is as follows. Corporations can speak they do speak, so they have the right to free speech. However, since corporations are not living beings, they do not have religious beliefs. Because they do not and cannot have religion, they have no right to freedom of religion.

  5. JKelligesq-

    Since the Citizens United case I have been wondering where the ABA and thousands of lawyers in this country, (less than 1% of whom ever appear before the Supreme Court) and Judges in this country are in their condemnation of the total lack of ethical behavior on the Roberts Court.

    It is common knowledge Scalia and Thomas had personal and professional relationships with a party to the case, the Koch Bros, funders of one of Citizens’ plaintiffs “Institute for Justice” .

    In fact it is also common knowledge that both Scalia and Thomas attended seminars given by Koch Industries in 2010 specifically on how to decide questions in the Supreme Court Case of “Citizens United”.

    Worse than their attendance at the Koch Bros soiree’s was the fact that Thomas’s wife was actually employed by one of the Koch Bros many political “non-profits” FreedomWorks receiving tens of thousands of dollars in remuneration for her work at the astroturf “grass roots” movement (the tens of thousands his wife received from the Koch Bros a little fact that Justice Thomas “forgot” to include on his income tax).

    Scalia and Thomas failed to recuse themselves as Sotomayor and Kagan and other Supremes correctly and ethically have done when they have had previous involvement or personal connection in cases appearing before the Supreme Court,

    Scalia and Thomas did not recuse themselves from Citizens United instead acting corruptly in concert on behalf of their benefactor the Koch Bros as their attorneys and cheerleaders in the case. Nor was Chief Justice Roberts free of connection to the Kochs as a member of the Heritage Foundation, funded by Koch Bros, prior to his appointment to the Supreme Court. In fact it was Chief Justice Roberts who took Citizens United into
    territory not even broached by its plaintiffs, by equating money given by Corporations to 1st amendment freedom of speech to which exercise they were entitled as “persons”.

    The United States has never seen a Supreme Court as unethical and corrupt as this one under the leadership of Chief Judge Roberts.

    Citizens United should be reheard with most certainly Scalia and Thomas recusing themselves, if not Chief Justice Roberts also doing so.

    • J Kelligesq,

      You write: “The United States has never seen a Supreme Court as unethical and corrupt as this one under the leadership of Chief Judge Roberts.” With respect, that is simply not true.

      Chief Justice Roberts, and any other Justice, might be wrong. That does not make the Justice corrupt or unethical. None of the examples you give prove your point either.

      On this, my friend, you and I will have to agree to disagree. All the best.

      RGK

    • Sir:
      Why stop at Justices Scalia, Thomas and Roberts? After all, why didn’t Justice Kagan disqualify herself from hearing and deciding the Obamacare case (for example, go here: http://www.nationalreview.com/bench-memos/291832/kagan-must-recuse-herself-obamacare-case-sen-jeff-sessions)? Judges must avoid the appearance of impropriety. The failure of judges to do so is not a partisan political problem anymore than it is a problem of race, gender, religion, etc. IMHO it is, instead, a failure of intellectual honesty on the part of those expected to have the rigor by which to exercise it. Ethics–judicial and otherwise–can be taught and mandated. But that doensn’t matter much if public officials are intellectually dishonest when considering the propriety of their actions.
      Robert

      • Robert,

        I know a far amount about legal ethics. By and large the attacks on all the Justices for their alleged ethical lapses are unsupported by the facts, based upon a complete misunderstanding of legal ethics as applied to members of the Supreme Court, or partisan drivel.

        My post was not intended to attack the Justices for ethical breaches, my post was intended to discuss the virture of the Court remaining passive most of the time when it comes to very controversial issues. That is especially so were the political branches of government are likely to fix the problem in time.

        In any event, don’t count me among those who think the Justices are unethical or corrupt–they are not, not one of them. That said, thanks for your engagement. All the best.

        RGK

        • When a congressional aide accepts a free flight on a private jet, he is prosecuted. When a judge does it, he is Justice Scalia.

          By any objective measure, our judges are corrupt.

        • Your Honour
          Unlike you, I know nothing about legal ethics. But I did spend a career in a profession whose ethics had an over-riding tenet that one should not only be independent, but be seen to be independent.
          Based on my ethics I would have recused myself in some of the instances cited. Maybe the problem is with legal ethics rather than with the Justices.
          Does the SCOTUS have a code of ethics that is separate from the general legal ethics? If not, should they?

  6. Judge:
    I’ve been considering this blog entry and have two responses. First, in a perfect world only the most important cases would be adjudicated by the U.S. Supreme Court and the resulting vote would always be 9-0. But, as we all know, in the real world cases are chosen, argued and voted upon. Nonetheless, the High Court will retain its integrity and uniqueness so long as it adjudicates the cases and controversies before it solely on the merits. In addition, by doing so the Court will continue as a “voice of reason” for the Nation by providing both a morale, and a morality, for its actions. Such a thing doesn’t happen when the Court “stays its hand”, to use Professor Bickel’s phrase, and declines the exercise of its jurisdiction. Second, given your previous entry on the esteemed Mr. Justice Robert H. Jackson, I propose that all judges be required to wear wristbands containing the following letters: ‘WWJJD?” (“What Would Justice Jackson Do?”).
    Robert

    • Robert,

      Except for Justice Jackson, on this we will have to part ways. I believe the Court is now doing more harm than good by taking these hot button matter. It time for a long recess.

      All the best.

      RGK

      • Hot button issues such as the Roe vs. Wade decision rendered by the Warren court? A case which has produced a culture war that’s been waged for over forty years now. That kind of “hot button matter”?

        If you believe avoiding contentious issues such as the Hobby Lobby case is the best course of action by the Court, may I presume that you think the Roe decision was wrong, and that the Supreme Court should have left the issue alone and allow abortion rights to be worked out legislatively on a state by state basis?

  7. When a decision doesn’t make sense, a judge is always pursuing his personal agenda. If judges went to jail for it, it would stop.

    When a judge declares that the Bill of Rights is unenforceable because Congress did not explicitly waive sovereign immunity, I have to question his sanity. That would mean that the first Congress submitted the Bill of Rights for ratification knowing that it was meaningless, and no one noticed.

    Jail for judges. It’s the only answer!

  8. Judge Kopf –

    A very interesting discussion. But what of the fact that the Third Circuit’s holding in Conestoga was in direct conflict with the DC Circuit’s holding in Hobby Lobby? While, for the reasons you note, it might have been helpful for the SCOTUS to stay out of this one, how could it leave such a split? I cannot imagine how the other branches could have found a way to resolve it — they seem very much at loggerheads about everything.

    And I appreciate your response to the commenter who was so quick to call the justices “unethical.” I’ve been a litigator for a long while, and I’ve been on the unhappy end of more than a few decisions, but I have a hard time coming up with examples in which I thought the judge was biased or unethical. Mistaken about the facts? Sure. Wrong on the law? Not uncommon. Less willing to listen to argument than I’d wish? Of course. But I think the vast majority of judges (and justices) truly aim to do their jobs ethically and properly. I think there are some questionable legal conclusions in the majority opinion in Hobby Lobby, but I don’t think we should label its author or those who joined him unethical.

    All best,

    DRF

      • David,

        Let’s think through the Circuit split issue.

        What’s the harm? In one Circuit, a closely held corporation could refuse to comply. In another Circuit, a closely held corporation would be required to comply. What would likely happen is that other Circuits would weigh in taking positions for or against requring compliance. The more Circuit opinions the more information the Court would have if the Court ultimely had to act. We might even see the Administration provide methods of accomodation that would satisfy most reasonable people.

        Your presumption, and that of many brilliant people, is that the liberty interests of our people require action by the Court when there is an impasse in Congress over the meaning of those liberty interests. The problem with this approach is, as Bickel tried to explain, is that the anti-democratic institution of the Court’s actions will ineveitably lead to underming the political branches if the Court becomes too involved. For example, the political branches, understanding that the Court will pick a winner,are taught by Supreme Court activism that no legislative compromise carries with it reduced political risk since the blame will always fall on unelected judges if the legislator can’t get what the legislator wants during the normal political process.

        Ultimately, the choice, David, is between (1) an undemocratic Court that plays a prominent role in our democratic form of governance in order to guard the liberty interets of our people or (2) an undemocratic Court that plays a relatively minor role in our democratic form of governance except for extraordinary cases that compel antidemocratic decision making to, ironically, preserve democratic decision making.

        David, your argument is easier to make than mine. Normally, that would tell me that you are right, and I am wrong. Not so here.

        All the best.

        RGK

        • But isn’t that the point? Congress has the power to correct the law, and the only time it would is when the courts go wrong. As an example, the Court went too far, and Congress passed the RFRA.

        • Judge —

          Your response gives me much to consider, and I certainly see your point.

          To some degree, though, I think you attribute to me a position I don’t take (confusion no doubt caused by my poor articulation). I don’t suggest that the SCOTUS had to act because the political branches could not. I suggest that it had to act because the “lower” federal courts had created inconsistency. The problem was created by Article III, not by Article I and Article II. Having created the disunity, Article III had an obligation to resolve it.

          With regard to whether a circuit split is tolerable, I think it depends on the issue. Here, the cases involved the validity of an act of Congress with widespread application. The issue is, of course, purely one of law such that additional percolation in the courts of appeals wouldn’t add much.

          All of that said, thank you for forcing me to think harder and to question my assumptions.

          DRF

        • “We might even see the Administration provide methods of accommodation that would satisfy most reasonable people.”

          That made me smile a bit. It’s a defining and perhaps necessary characteristic of religion that the role of reason is somewhat limited.

          Another Administration? Maybe.

          Love your blog, BTW.

  9. Judge Kopf–

    An interesting discussion. But what of the fact that the Third Circuit’s holding in Conestoga reached a holding in conflict with the D.C. Circuit’s holding in Hobby Lobby? I can appreciate the argument that the SCOTUS might want to avoid certain issues, but how could it allow such a conflict to remain?

    On another matter, I appreciate your response to the commenter who was quick to label the justices “unethical.” We throw around such terms too readily. I’ve been a litigator for a couple of decades, and I’ve been on the wrong end of more than a few orders. Yet I would be very slow to decide that any of those decisions were the result of unethical behavior by any of the judges. Mistaken on the facts? Sure. Wrong on the law? No doubt. (Entirely correct? Sometimes.) But I long ago came to the conclusion that the vast majority of judges truly aim to do their jobs honorably and correctly. It is too easy to look at the result in a case and pronounce the jurist(s) unethical. It is harder to dig into the analysis to see where it holds up and where it doesn’t.

    I think there are problems with the analysis in the majority opinion in Hobby Lobby, but it is too facile to just label five justices “unethical.”

    DRF

  10. I can’t see how the courts have the luxury of sitting on the sidelines. When a judge withholds relief a litigant is entitled to, he is almost always denying that litigant his rights. You may want to not decide whether gays can marry, but to not hear the case means not letting them marry.

    I have a simple test for judicial corruption. If a decision is batshit crazy, we should presume that the judge is corrupt until proven otherwise, because federal judges aren’t that stupid, and a judge never offers a shoddy argument in favor of a litigant that he doesn’t want to win.

    I don’t think we should use the word “unethical” when “criminal” is more accurate. When a judge denies a litigant the decision he is entitled to, he is almost always denying that litigant his rights, and judges send lesser men who wear badges to prison for less.

    Jail for Judges is the only solution. Judges would be more careful if they were responsible for what they do.

  11. Great post. All that I would add is that we see the world through a foreshortened lens. We believe–and I think this is exacerbated by our electronically-connected society–that all problems must be solved NOW.

    On the other hand, it always surprises me how often problems left to fester simply go away. Showing that Mark Twain was generally right: “Never put off for tomorrow what you can put off for the day after tomorrow just as well.”

  12. In all the commentary I see here, it astonishes me that nobody is questioning the premises of the Court’s assumptions about whether (a) it is legitimate for anyone to claim that their religious beliefs entitle them to use an employment contract, an instrument of the state, to enforce those beliefs upon the body of another human being; (b) that beliefs trump scientific facts; (c) that it is legitimate and non-discriminatory to women when an employer chooses to refuse to comply with the law of the land with regard to those medicines which a woman may use to regulate the health of her own bodily organs.

    Beginning with (c), the bare facts are that persons who are in possession of a uterus, fallopian tubes, and ovaries possess body organs which may or may not be used for reproduction but which – like all body organs – may be subject to conditions requiring medication or treatment. In general, these treatments function as, and are called, “birth control”, whether or not a given woman uses that treatment for that purpose. Given the extremely variable nature of human metabolism and hormone regulation (in males, too, incidentally) there may be women for whom a single kind of ‘birth control’ is medically necessary and/or fittest for purpose.

    Let’s connect that to (a), now. Individuals don’t normally have a right to enforce their beliefs upon the bodies of others. We don’t have slavery in this country, or harvest kidneys from prisoners, because a human being is deemed to have body sovereignty.

    However, now, an employment contract somehow changes this, because now an employment contract is an instrument of free speech and a statement of religious orthodoxy, not an unencumbered agreement by which a person exchanges their labor for various forms of compensation.

    This is why the Court should have STFU: they have decided that the state has a legitimate interest in allowing employers to interfere with an individual’s treatment of their own internal organs. Their decision means women have lost the right to use part of their earned compensation to treat certain internal organs according to their own best medical interest based on their *employer’s* beliefs.

    As it happens, I’m a Christian, and female, and I resent the hijacking of my faith, my moral agency, and my intimate relationships by this Supreme Court. As a scientifcally-informed woman I find the Court’s rejection of biological and medical facts deeply disturbing.

    I don’t know how anyone seriously interested in basic human rights can make sense of this decision. If men’s employers barred their male employees from certain treatments for testicular or prostate disease the Court would be quick to support the employee over the employer because that kind of decision would be patently absurd.

    • “In all the commentary I see here, it astonishes me that nobody is questioning the premises of the Court’s assumptions about whether (a) it is legitimate for anyone to claim that their religious beliefs entitle them to use an employment contract, an instrument of the state, to enforce those beliefs upon the body of another human being; (b) that beliefs trump scientific facts; (c) that it is legitimate and non-discriminatory to women when an employer chooses to refuse to comply with the law of the land with regard to those medicines which a woman may use to regulate the health of her own bodily organs.”

      Well, it appears many of the commentators are conservative men. Most of whom probably feel their Bronze Age-penned holy book trumps a 21st Century woman’s access to health care, and the right to make decisions regarding her own body.

      Every you vote GOP, you endorse this religious-fanatic fueled ideology. This is what 30 years of currying the favor of people who think the Bible should be the basis of American law results in.

      The only astonishment is that the current SCOTUS hasn’t outlawed contraception yet.

      • @mattand, rest assured, I have never, ever voted Republican in my 40 years as a voter. I wouldn’t have one painting lines on a road: they’d find too many exemptions to the straight line rules and we’d have all kinds of jagged edges, blobs, random parking spots, and intersections where the only “solution” would entail road rage and gunfire… but all done with the highest of motives.

    • Thank you, thank you for this, Ms. Kaye. I cannot describe how wearying and baffling it is to see men arguing over shades of interpretation in the law when the issue is an attempt by men to control the type of health care women’s bodies receive. It is a basic human rights issue, full stop.

      That said, many thanks, Judge Kopf, for this post and your kind and thoughtful comments to those who are working out the implications of this decision.

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  30. This is the nuttiest philosophy I’ve ever heard, and the most unseemly and undignified commentary that I have ever seen from a person in a position normally afforded such respect and gravitas, and it is an unbelievably insubordinate breach of protocol from this twerp.
    THIS is why our country is the way it is, when a federal judge deems such comments appropriate in the name of partisan politics and then gets validated in the fringe left echo chamber on the internet.

    Were it not for the activist judges trying to legislate from the bench, there would be no need for the court to hear “hot button” cases because they would be resolved at the appropriate channels and through the appropriate levels. And were it not for Obama’s “so sue me” approach to upholding the Constitution, then groups like Hobby Lobby would have had their religious rights intact to begin with.

    What liberal wingnuts like this judge fail to see are the implications and consequences that comes from taking this sort of approach. If this judge thinks his actions are OK, then it’s OK for the other side to do the same.

    • Did we read the same article? Seriously, did we?

      If you’re decrying “activist judges legislating from the bench”, what on earth would you call a court that decides corporations are “people”?

    • “activist judges trying to legislate from the bench” Isn’t that exactly what this court is doing in not just Hobby Lobby but also Citizen United?

      • The problem here is with what one considers activist. In my view, activism isn’t simply “does the justice vote to overturn legislation?” Activism is ignoring the Constitutional framework within which a SC Justice is supposedly constrained to render opinions based on personal predilections.

    • Ben, you destroy your own argument about “undignified commentary” when you refer to Judge Kopf as a “twerp” and later as a “liberal wingnut.” BTW, were you aware that he was appointed by President George H.W. Bush?

  31. I nearly choked at the suggestion that SCOTUS should take a light approach to cases. Did you feel the same way when SCOTUS ruled Obamacare to be constitutional? I believe that a number of the rulings SCOTUS has mode over the years regarding constitutionality of certain laws were incorrectly made, the one over the laughably-named “Affordable Care Act” being one of them. Perhaps you and others don’t consider agreeing to listen to the Hobby Lobby case, as we’ve come to call it, wasn’t necessary, but from a religious liberty perspective I happen to vehemently disagree.

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  33. How could the Supreme Court have avoided the Hobby Lobby case? You had CIrcuit Courts ruling against the mandate, other Circuit Courts ruling for it. There needed to be a definitive answer on the matter.

  34. I don’t know what “average” persons you hang around with, but most of the people I know think the decision made eminent sense and was required due to an overreaching regulatory state. I would hope most average persons would also find it unbecoming of a federal judge to tell anyone, much less the SCOTUS, to “STFU”. Would those on HL’s side have been justified in such disrepect if Justice Kennedy had voted the other way? Shame on you.

    • “most of the people I know” — and therein might be the problem for you. Most of my fellow Canadians think this decision was utterly absurd but certainly in character wiith what seems to be going on in your increasingly deranged country.

      And it’s about time *someone* told Scalia in particular to STFU.

      • Doc, while your opinion and those of your fellow Canadians may be of passing interest, they don’t really matter. BTW, why should Scalia shut up? I though exchange of viewpoints is a good thing. Does only your side get to talk?

        • With all due respect, for a country that revels in telling everyone else what they should do, your statement is so typical of American “exceptionalism”. And as a Canadian, I have to listen to the non-stop bickering coming from south of the border to the point where I want to line all of you up, all 350 million of you, and bitchslap some sanity back into you. You prattle on and on about “equality” and “freedom for all”, and yet you prove over and over again how impossible it is for you to actually put teeth to those ideas… as the relentless debates about gay marriage prove, an issue by the way that we resolved 14 years ago with no undue harm falling from the skies. But not you guys, nossir. For you it’s *drama*. And you seem to freaking love it, to the point of embarrassing yourself before everyone else on the planet. I gather that’s being “exceptional”.

          And please dont start about we should all be grateful to you for saving us from… well, whatever. History is not a John Wayne movie, despite your best attempts to make it into one.

          As for Scalia, the man has had plenty of time to talk and avails it frequently, with a pointlessness that is utterly remarkable. It’s time for him to STFU and listen with an open mind for a change, not that rusted bear trap he calls a brain.

          Do have a nice day, eh?

          • And as a Canadian, I have to listen to the non-stop bickering coming from south of the border to the point where I want to line all of you up, all 350 million of you, and bitchslap some sanity back into you. You prattle on and on about “equality” and “freedom for all”, and yet you prove over and over again how impossible it is for you to actually put teeth to those ideas… as the relentless debates about gay marriage prove, an issue by the way that we resolved 14 years ago with no undue harm falling from the skies. But not you guys, nossir. For you it’s *drama*. And you seem to freaking love it, to the point of embarrassing yourself before everyone else on the planet. I gather that’s being “exceptional”.

            Some of us Americans have no idea of how our image is projected beyond our borders. Thank you for that.

          • No one “forces” you to be here, doc, and engage in discussions regarding American jurisprudence. if we annoy you that much, just say no.

              • So, you aren’t “forced” to listen to us nasty Americans, you choose to willingly. I’d suggest since you seem to have a problem with consistency you just shut the….. er never mind, say what you want. I’ll just choose to bypass it in the future.

            • Ah, the ol’ Real American(tm) snappy comeback of “Go back to where you came from!” bit.

              Gets old, ya know?

              Also, there’s the part where he mentions “you prove over and over again how impossible it is for you to actually put teeth to those ideas”.

              You do realize that by not addressing any of his criticisms and instead responding by telling him to go back to Canada, that you just proved his point, don’t you?

              It validates that criticism and makes your response, well, look like a statement so typical of American exceptionalism.

              • johnny, are you saying I said that? I simply said that Canadian opinion regarding American law carries just as much weight as my opinion does about Canadian law. No one in Ottawa cares what I think about their speech laws. I’m curious as to why my posiiton has to be distorted to oppose it.

          • “You prattle on and on about “equality” and “freedom for all”, and yet you prove over and over again how impossible it is for you to actually put teeth to those ideas”

            Nailed it!

          • As an Australian I share some of the sentiments you display in your comments, though I would go a bit easier on the vitriol.
            As an observer of current events in the USA, the more I see of public discourse there, the happier I am that we don’t have a Bill of Rights.
            As for the Hobby Lobby case, the answer is Congress can amend the RFRA. Don’t hold your breathe.

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  36. Yeah, like the HIGH court is going to leave it to ignorants like you in the LOWER courts to decide issues that ONLY the Highest Court in the land CAN and SHOULD and MUST decide. STFU is disrespectful and arrogant coming from a LOWER judge but it may be good self-advice. Take it!

  37. The worst jurisprudence ever handed down by the High Court was in 1973 when 6 old white men and 1 old black man in black robes punted on deciding once and for all when, for purposes of PERSONHOOD, human life begins — as if Science didn’t know it began at fertilization — and left us with EVIL Roe v Wade. NO, the High Court MUST step in and make these big decisions and continue to rebuke Obama and his ilk for thinking THEY can redefine our Constitutional, Rule of Law REPUBLIC by abrogating hundreds of years of accepted jurisprudence and remaking America in Marx’s image; we are NOT a mob rule majority democracy.

    • Well, if one wants to get completely technical, life has begun well before that moment. The sperm are alive. The egg is alive. Heck, you had one member of state congress in Virginia who wanted to insist that life began two weeks before fertilization because that’s when the woman drops the egg. Of course, the man is always making sperm, so I suppose you could even go so far as to say that masturbation is mass murder of millions of unborn children.

      Oh but that would put the onus on the man, and we cant have that, can we…

      Honestly, you Yanks and your neverending sense of self-entitled drama…

      • According to the Bible, Onan was killed for “spilling his seed”. Next we’ll be hearing about closely held corporations with deeply held religious views asking prospective employees if they masturbate.
        Genesis 38:6-10

    • A human life beginning at fertilization is a religious argument. Scientifically, the creation of a sentient human being is a process with multiple milestones. The establishment of “beginning of human life” also has ramifications on women, and since our society strives to ensure equality wherever possible, we make compromises. First trimester abortion is a compromise that balances the needs of the unborn and those of women who carry the responsibilities of motherhood. If one argues that life and death are not to be compromised, in many other ways we do so all the time, fully sanctioned by most religions (we kill in war, we kill for capital offenses, etc.). One can decide this question of the beginning of life based on what one believes, but the law that governs all cannot be based on religious doctrine.

    • What’s up with this fetish of REPUBLIC by conservatives?

      I understand you guys don’t like democracy. It’s shows. You call it ‘mob rule’. But most folks, people who don’t want to force a minority religious viewpoint on the majority, they call it ‘an election’.

      But sadly for you the U.S. is indeed a democracy. And despite Citizens United, so far one person gets one vote, rich or poor, atheist or devout. Technically the form of government is a democratic republic, but the democracy part, that function of the unwashed hoi poloi majority rule, is far more important.

      See, by itself REPUBLIC means nothing. But perhaps China is what you have in mind as the ideal form of government? It’s a REPUBLIC!

      • Mr. Aquitard,

        By definition, if a government is comprised of elected representatives then it is a republic; a democracy is direct rule by the people w/o legislatures, parliaments, or elected executives.

        Thus, all countries that are modernly called democracies are in reality republics. I don’t know when the exact change happened – but my guess is sometime during the Cold War when communist countries started calling themselves Republics, the western nations started calling themselves democracies to differentiate themselves.

        The current conservative insistence on accurate use of terms is probably a mixed bag of reasons but I suspect it has to do with a perception of wanting to go back to a more familiar time – a time of less complexity and more homogeneity – a purely fictional time to be sure but since when has politics been a non-fiction subject?

  38. “To the average person, the result looks stupid and smells worse.” Fact is, the average person in America is INCREASINGLY stupid and smells worse than a pig in shit.

  39. we seem to have plumbed the depths of ignorance when we read that there are people out there who think a human sperm or a human egg is a complete, unique and living human being.

    • You said “when life begins”, human sperm and egg are alive and are human. The question “when does a ‘human being’ exist” is a different question altogether. A fertilized egg does not equal a human being. A majority of fertilized eggs die w/out even the woman knowing she is pregnant. God is therefore the greatest “abortionist.” Also, what are you doing to stop the “genocide” going on in fertility clinics by the way.

    • Furthermore, if as you and other pro-lifers claim, a fertilized egg = a human being, shouldn’t a sexually active pro life woman not flush her period down the toilet? Shouldn’t they instead hold a funeral for said menstruation because often said discharge will contain what you claim to be a “baby”.

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  41. I’m not in the legal profession, but I thoroughly enjoyed your post and the most conversation following. Your blog is a rare internet find, just enough edge to be honest.

  42. I’m not in the legal profession, but I thoroughly enjoyed your post and the most conversation following. Your blog is a rare internet find, just enough edge to be honest.

  43. Pingback: Federal judge tells Supreme Court to 'STFU' after Hobby Lobby ruling | The Verge

  44. my problem with all of this litigation regarding the Obamacare law is where did the federal government obtain the power to deprive me of my right to make my own healthcare and medical care decisions?

    I know this is a quaint understanding of the u.s. constitution, but it does still read that powers not specifically granted to the federal government or specifically denied to the people or the states are retained by the people and the states.

    for over 200 years americans were free to make their own healthcare and medical decisions. now, out of the blue (?), we are being told to accept the reality that americans never, ever really had that freedom.

    aside from the fact that the u.s. constitution grants no one and no thing the power to require one person to pay for another person’s recreational drugs (and that is what artificial contraceptives are), the application of the law by the executive branch was rightly smacked down.

    • Umm, you did see the part last year about how the Supreme Court ruled the ACA was constitutional, right?

      As for describing contraceptives as recreational drugs? Just, wow. That’s some Olympic gold medal delusion there.

    • A regulation of your insurance company does not get between you and your doctor. However. . .

      How do you feel about your employer and five guys in black robes making your health care decisions for you?

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  46. To all of you who think that the court had an obligation to take on this case, consider that they choose not to take on many more cases than they accept, many involving conflicts between statutes or lower court rulings. IOW (as the kids say), they STFU every day, but chose to speak up on this one. The answer to why the majority didn’t STFU? well, it seems obvious to me that they have religious/cultural/sexual biases and they find it hard to resist reaching decisions consonant with these biases. Our host suggests that there is an appearance of bias, but perhaps the decision was reached in good faith without bias. I doubt that.

    • Or perhaps they read the RFRA, applied the strict scrutiny/least intrusive analysis required by the law and found that if govt had a compelling interest in making sure that women had free access to every approved means of birth control, including abortifacients, that there had to be a way to do it without trampling on the religious convictions of others. it’s what the law requires. Seems to me if there’s any “bias” to personal preferences at work, it’s with the minority that would ignore that law to impose the government’s will on employers.

  47. In 235 years we’ve gone from “I regret but I have one life to give for my country” to “STFU”?

    I guess the blogger’s court resembles this:

    • To the contrary, STFU is a statement of proud patriotism, Mr. Hale. Pity you cant appreciate it and instead cue up some mindless drivel to support your rather specious argument.

      Have a nice day, eh?

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  49. It seems to me that you have totally missed the point, which is if the Federal Government can force us to buy health insurance and companies to provide every kind of contraceptive, there isn’t much they can’t force us to do.

    Also, I really don’t think it is fitting for a Federal judge to tell the Supreme Court to stfu. Drags down the dignity of your office in my opinion. But since I uphold the the First Amendment, I’m certainly not going to tell you you can’t.

    Here’s MY opinion on the Hobby Lobby decision, although I’m not a lawmaker or lawbreaker of any sort: http://lesliedenning.com/land-of-the-free-home-of-the-brave/ Don’t tread on me!

    • “If the Federal Government can force us to buy health insurance and companies to buy every kind of contraceptive, there isn’t much they can’t force us to do”

      Let’s go right to the broccoli analogy. Yes, the Government can force you to buy broccoli, just as they force Quakers to pay taxes that fund military activities. There are. any number of things The Gov does that I find morally repugnant and would prefer not to pay for, starting with Guantanamo. But the courts have been consistent on this, until the Hobby Lobby decision.

      If the Government tried to force us to eat broccoli, or take contraceptives, or use any of the medical care available under ACA, that would be different. Neither ACA nor any other law I’m aware of does this.

      There’s your clear dividing line between what the FG can and cannot force us to do.

  50. Thank you for this insight into the particulars of this case. I’m no legal expert, but I do share your opinion that this decision and others have caused more division within America than they’ve settled legal issues.

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  52. Wow! so its your opinion that SCOTUS AVOID hot button issues for the sake of “political consequences”. Thats what politicians do! SCOTUS and all justices are supposr to be ABOVE that.

    In fact, i belive the court needs to take no MORE issues like this in order to put certain matters finally to rest! There are still issues of “gay marriage” as well as 2nd amendment issues that still do not have a final decision on.

  53. I will be interested to see the first case that seeks to use Hobby Lobby to pierce the corporate veil. If a corporation can have the religious beliefs of its owners, why should the owners be protected from any actions of the corporation.

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      • Ya’ know, with all due respect, you should have removed that misogynistic line altogether. I have heard state and federal judges sputter a lot of brain-ded things from the bench and in private, but, baby, that takes the cake.

        You are actually raising a charge of misogyny because all of the female justices fall down together on the losing side of a ruling???

        OK, and when all of the Jews are in the minority, does that make the decision antisemetic? And when it’s Thomas on the losing side, does that make the decision racist? WTF are you talking about?

        IMO, for a person in your position, you are the one who needs to STFU in public. Blowing your personal opinions all over the Internet may be within your God-given, inalienable right to free speech, but it also exposes your biases (many of which I agree with, btw), which in turn must surely set you up for motions to recuse yourself.

        But worse, you are not just abasing the USSCt, you are abasing the federal judiciary as a whole. Retire, and then come back and tell us what you think. I’ll buy 5 copies of your first book, I promise.

        ITMT STFU.

        All the best,

        DO’B

  55. Pingback: Federal Judge Says Supreme Court Should Just ‘STFU’Jobrny's World | Jobrny's World

  56. Judge Kopf, you need to remove the obscene and highly disrespectful part of this post. It contradicts the idea you are promoting that the judiciary should act to make the public respect it.

    It is ok to impugn the motives of the Supreme Court judges, but don’t be passive-aggressive about it. Don’t talk about how it looks bad to the public if most of the Roman Catholic judges are on the religious side (though since they’re taking the side of evangelical Protestants and conservative Mennonites, both of which are heavily anti-Catholic, I’m not so sure the public will really think that way). It’s like someone saying that it looks bad to the public when both Jewish justices take an anti-Christian position. If you want to come out and say you think the Roman Catholic judges are motivated by their religious beliefs, come out and say so.

    • Concern troll is concerned! Very concerned!!!

      Regarding obscenity, I’d say it’s quite refreshing to have a judge converse with us as if he doesn’t inhabit the Ivory Tower. Conservatives were gleeful when Scalia told his critics to ‘vaffanculo’, after all, but I guess it’s fine to tell people to go fuck themselves if you do it in Italian. Or maybe you were calling for the smelling salts and fainting couch back then, too… though I doubt it.

      But really, given the obscene and highly disrespectful nature of the ruling itself, I think this quote from Apocalypse Now is relevant.

      “We train young men to drop fire on people, but their commanders won’t allow them to write “fuck” on their airplanes because it’s obscene!”

        • Okay, but this decision could have been shortened to “SLUTS!!!!!!!!!!” without losing any of its factual or legal merit. To respect it is to condone it, and it certainly doesn’t deserve either.

  57. Your Honor, as I suspect may be true of many others, I have discovered Hercules and The Umpire for the first time today as the result of your comments on the Hobby Lobby case. Just so you know, I was led there by my daily subscription to emails from Think Progress. I am a practicing trial lawyer from deep South Texas along the Rio Grande. I am certain it will not surprise you to know that not everyone from Texas necessarily agrees with the Hobby Lobby decision — myself included. Although I do not know you and have not had an opportunity to explore your blog (or your non-judicial opinions on matters which you obviously are more than willing to share), I found my brief introduction to you to be incredibly refreshing. Unlike some of the other commenters, I did not take your remarks or your criticism of the Supreme Court’s decision as an attack on the integrity of the Justices in the majority. Like you, it also seems to me that most of us are far too quick to jump to the conclusion that someone we disagree with is evil or corrupt rather than just wrong. That type of reaction has certainly led us to some rather toxic dialogue over many contentious issues in recent years.

    When I was taking constitutional law from Professor Wright at UT many years ago, I came to actually despise Justice Frankfurter and others on the Supreme Court who espoused the very doctrine you advocate in your post on Hobby Lobby. In my youthful ardor, I thought it cowardly to avoid the important legal issues which came before the court. It has only been after some 45 years in the legal arena that I have finally come to believe that silence is often the best response — both in and out of the courtroom. I have to admit, however, that I would have preferred in this case that the Supreme Court had just decided the case the other way rather than continuing down the path of Citizens United. I have a sneaking suspicion you might feel that way also having apparently come from the same school of learning that I did as we were taught in law school that a corporation is a legal entity wholly separate and apart from its shareholders — hence, the enjoyment of the various legal fictions of limited liability and other benefits.

    I have bookmarked your blog and fully intend to explore it. I have had a healthy respect for many federal trial judges before whom I have practiced over the years. It can be risky and dangerous not to at least pretend you do even when you come across one of the not-so-good ones every once in a while. My initial exposure to you and your blog impressed me that you may well be one of those judges with a healthy dose of reality about yourself and the role you serve in this justice system of ours. I did notice a comment in one your posts that federal trial judges are at the low end of the totem pole. I suppose that is true when looking down through the lens of appellate judges; however, it has always seemed to me that totem pole is upside down since the trial judges are closest to the action and its impact on real people. As we can see from the Hobby Lobby decision, appellate judges — and particularly those farthest from the arena and reality — often develop a distorted view of what it is all about and get it all wrong. Way too many filters.

    I look forward to getting to know you through your blog. I read that you have been ill and almost gave it up a while back. I hope you have been able to put all that behind you and are inspired to continue. I have tried to discipline myself to write a blog on ethics for a number of years. Maybe you will inspire me, too.

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  60. The fact that 5 men believe in the 1st and most important amendment to the Constitution and part of our Bill of Rights undermine a small piece of a congressional law for a small percent of the population that does not even mandate health care be provided by an employer should not tell the Supreme Court of the Land that has supported so many liberal principles over the years to STFU. The only issue is money. The employees are still allowed to use their money earned from the employer in the dispute to purchase the disputed items.

  61. Just caught this from another blog, and I have to say outstanding sir! Cant wait to read more of your opinions…My greatest fear has been realized..IE religious zealots somehow getting elected, and trying to transform us into a bastard version of theocracy

  62. “To most people, the decision looks stupid ’cause corporations are not persons, all the legal mumbo jumbo notwithstanding”.

    Treating a corporation as a person for certain legal purposes can’t be any stupider than denying that a flesh and blood child, while still in her mother’s womb, is NOT a person.

    • Are you also saying that a zygote slowly floating down the fallopian tube is a “flesh and blood child”? Because that’s what this case was ostensibly about.

      • “Human development begins after the union of male and female gametes or germ cells during a process known as fertilization (conception). Fertilization is a sequence of events that begins with the contact of a sperm (spermatozoon) with a secondary oocyte (ovum) and ends with the fusion of their pronuclei (the haploid nuclei of the sperm and ovum) and the mingling of their chromosomes to form a new cell. This fertilized ovum, known as a zygote, is a large diploid cell that is the beginning, or primordium, of a human being.” (Moore, Essentials of Human Embryology, 1988)

        • Thanks for that copypasta there. I mean I only have a biology degree and half a medical education, so I had no frickin’ idea where zygotes come from.

          The problem with your reasoning, at least what I gather it is from your copypasta posted without comment, is that pregnancy, by any rational legal/medical definition, begins with implantation and not with the formation of a primordium. No pregnancy is even theoretically detectable until at least two weeks after implantation. If fertilization, which cannot be detected with even the most state-of-the-art technology, is your standard for pregnancy, you’re telling me that any woman who’s had sex somewhat recently should be legally declared pregnant until proven otherwise. Simply bizarre.

          But here’s a question for you. If you were in a burning fertility clinic with a petri dish containing 10,000 zygotes on one side and a toddler on the other, and you only had time to save one of them before escaping, which would you choose and why?

          • Human life — as medical science confirms — begins at conception. That is an incontrovertible FACT.

            As for your hypotheticals, I’m sure you could — and probably do — spend all day and night dreaming up ever more convoluted “Gotcha!” scenarios on this subject. None of which go to the underlying question of when human life begins.

            In your burning clinic scenario, for example, suppose you had to choose between saving a “toddler” and a bed-ridden 90-year old man on life support.

            Whatever your choice, is the toddler or the 90-year old man rendered any less human as a result?

            Wait … given your science denialism, it’s starting to become clear why you couldn’t make it through medical school.

          • As for my original point, I’ll ask you: which is more absurd: treating a corporation as a person for limited legal purposes (which has been the case in this country for, oh, about two centuries now)* or entirely denying that a squirming, crying, air breathing child is a person until her last limb completely clears her mother’s birth canal?

            *Cf, Trustees of Dartmouth College v. Woodward – 17 U.S. 518 (1819)

            • I don’t believe that’s what scarshapedstar1 claimed, Professional. In fact, I don’t think any sane person has ever claimed “a child isn’t a person until her last limb completely clear her mother’s birth canal.” Rather, the debate is on when does a fertilized egg reach sufficient personhood so at to enjoy legal protection, and moral consideration. As to that question, I believe scarshapedstar1’s point is that it in fact IS a question, not a bright line as you would suggest. Your strawman argument is not very clever, as it just makes you sound like an idiot.

              But I’m sure it makes you feel warm and fuzzy inside that you support cute little babies, including “large diploid cells.” Continue the fight! Good job not falling for that unbelievably hypothetical “gotcha.” Obviously, the correct answer is “pray to God to prevent the fire.”

              Cheers.

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  69. What I’m wondering is, if religious people are now granted the right to opt-out of any law they don’t like, is there any hope for secular people getting in on that action? Or is this special right limited to Religious-Americans as a class? That would seem to fly in the face of both the 1st and 14th amendments, but I dunno how else to interpret Scalito’s decision.

    • When you have to deliberately distort the holding of the opinion to argue against it, don’t you implicilty admit your position doesn’t have much merit?

    • The RFRA, as now interpreted by the SCOTUS, would seem to violate the 1st and 14th am. If you take Alito at his word, the Court will now have to pick and choose which beliefs are important enough to get a special exemption. This is in direct violation of the 1st am. The other option would be to give everyone who wants one an exemption and invite chaos. We will find out soon enough when a corporation claims the religious right to discriminate against gays (already in progress) Alito has already implied that Jehova Wittnesses shouldn’t get an exemption presumably because their beliefs about blood transfusions aren’t as good as Catholic belief about contraception.

      I’m almost looking forward to the oncoming legal clusterf*ck.

    • “What I’m wondering is, if religious people are now granted the right to opt-out of any law they don’t like…”

      That isn’t what the Court held. Not at all. You didn’t make it through medical school. I sure as hell hope you’re not trying to make it through law school. And God forbid you’re a law school graduate.

  70. Pingback: Federal Judge Tells SCOTUS To STFU | austinisafecker

  71. “The Hobby Lobby cases illustrate why the Court ought to care more about Alexander Bickel’s “passive virtues“–that is, not deciding highly controversial cases (most of the time) if the Court can avoid the dispute.”

    I think you are correct. SCOTUS should never take another gun rights case.

  72. Pingback: No, It’s Not Okay to Publicly Say “STFU” to the Supreme Court if You are a Federal Judge | Election Law Blog

  73. Maybe it’s time you weren’t a federal judge if you don’t know the difference between a democracy and our constitutional republic. Or the difference between a right and a benefit.

    The scary part is that you’re the one supposed to be upholding laws up to and including the Constitutionality of laws, but you apparently don’t care to consult the Constitution.

    What harm comes from businesses not paying for the birth control of women who work for them?

    • Is Viagra a right or a benefit? Honestly, do you people even think before you write. Women are entitled to birth control. Period. You are willing to pay for a man to have an erection and impregnate his partner and have a scatter of kids that no one can afford. Yet you do not want to allow women to have the option to not get pregnant. And the IUD and the pills that HL were so worried about are not abortofacients. Yet, they had no problem with that before the ACA. The whole thing reeks of anti-Obama politics and I’m sorry to say that the rest of the world is laughing at you.

      Abortion is not permitted in my country at the moment. I have mixed feelings on it. I don’t condone using abortion as a contraceptive. I would have definite ideas on when an abortion should be performed as regards trimesters. It needs to be early. If the life of the mother is at stake, there is no contest.

      America is being led down the slippery slope by theocrats. It is hard to watch this once proud country lose its “freedoms.”

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  76. It is refreshing to to hear this from a federal judge. The Court had multiple reasons to not take this appeal.

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  81. Thank you, sir, for speaking with common sense. Please don’t give up your blog.

  82. This post is a must read. Well said, well reasoned. This case wasn’t decided based on the rule of law or science but by five men, all of whom make it abundantly clear that we individuals aren’t worthy of protection by the law (“Your employer’s religion trumps yours – suck it, peon”) and make it abundantly clear where their allegiances lie. I’m beginning to wonder what corporate sponsored suits they wear under their robes … so many to choose from!

    When a corporation can be held accountable for its actions and can function as a living, breathing person (ie: convicted of murder, robbery, rape; give birth and raise a child; go to school; partake in sports; eat, drink, sleep and partake in its morning constitutional after that first cup of coffee in the morning; etc., etc., etc.), then I may be inclined to change my mind however, until this happens, I will continue to view this SCOTUS as the joke it has become. It has consistently ruled in favor of the “corporate people” while stripping “real people” of the legal protections “real people” are due.

    To those who think birth control is for recreational purposes only and used only by sluts, I suggest they research the myriad of uses birth control has. Additionally, to those same individuals whose spouse may use birth control … highly doubtful she’d appreciate you calling her a slut …

    Lastly, I don’t know whether to laugh or cry at the hypocrisy shown by this family of God-fearing Christians. They clutch their pearls over birth control and need their smelling salts at the availability of birth control through its insurance plan yet has no problem whatsoever with its investments in birth control manufacturers. That alone should have been enough to toss this case in the garbage pail where it belongs.

    • “This case wasn’t decided based on the rule of law or science.”

      An apt description of Roe v. Wade.

  83. Praise God, that they had the decency to stand with Hobby Lobby on this issue and not STFU, as you state. At least they all had “the Balls” to uphold the Bible’s teachings. On another note, we kept a US based Corporation from going abroad, which is part of why the US is in such bad shape. Outsourcing everything to other countries and not supporting the few American based companies left.

    • Where in the Constitution does it say it was crafted in order to uphold the bible’s teachings? Please provide irrefutable, empirical evidence that supports your “facts.”

    • “At least they all had “the Balls” to uphold the Bible’s teachings.”

      There is a fine line between sharia law and Scalia law.

  84. This is the perception (and I’d suggest the reality) of the average citizen and, particularly women, when it comes to this decision and many others perpetrated by this court – starting with Lilly Ledbetter.

    SCOTUS has now placed religion above of the law and the employer’s religion above those who may not agree with their employer’s religious beliefs — this is DIRECTLY in opposition to our Constitution wherein our founders deliberately refused to establish a state religion. They wanted neither papal nor the King’s religion to be above the laws of the land. They knew, even in 1776, we were a nation of immigrants with a multitude of religious beliefs from the Quakers in PA to the Anglicans in VA and putting one man’s religion above another’s was not only ludicrous, but not sensible.

    What right should an employer have to choose for their employee the type of health care they should receive? If I were Jewish and demanded you eat no pork as my employee — and that includes while you are NOT working, would that be acceptable to you? What if your employer was Islamic and required all women in his employ to wear burkas? Would that be acceptable to you? Of course not — forcing employees to be held to the religious standards of their employers is morally reprehensible as well as a violation of the Constitutional right for each and every PERSON.”

    These two cases, evidently disregarded by the Robert’s Court, (what was it he said at his confirmation hearing…he would not make law, but follow the precedents of the Court? — What a joke!) speak to the issue:

    “Freedom of religion means freedom to hold an opinion or belief, but not to take action in violation of social duties or subversive to good order,” Chief Justice Waite wrote in Reynolds v. United States (1878). The U.S. Court found that while laws cannot interfere with religious belief and opinions, laws can be made to regulate some religious practices, e.g., human sacrifices, and the Hindu practice of suttee. The Court stated that to rule otherwise, “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect permit every citizen to become a law unto himself. Government would exist only in name under such circumstances.

    In Cantwell v. State of Connecticut the Court held that the free exercise of religion is one of the “liberties” protected by the due process clause of the 14th Amendment and thus applied it to the states. The freedom to believe is absolute, but the freedom to act is not absolute.”

    Contrary to popular belief the Court DID NOT grant personhood to corporations, a clerk did — yet the Court has continued to screw the people again and again in favor of them to the point where they are taxed less and allowed to become so profitable it is being argued by many that our Legislators need to wear corporate patches so we know who their real constituents are.

    Corporations are pieces of paper who the founders had little respect for — the Revolution was about the repressions instituted to PROTECT the East India Company and screw the people. They were allowed to form in order to provide a service for the good of the people and their books were open to public inspection whenever it was deemed necessary to inspect them. They were limited to a term of incorporation, not forever.

    Granting religious rights to a piece of paper is unacceptable.

    I guess the First Amendment that states, “Congress shall make no law respecting an establishment of religion…” doesn’t apply to SCOTUS.

    So I guess all that gibberish I was taught in Civics class about how the Legislative Branch was to enact the law, the Executive was to enforce it and the Court was to interpret it was just that — gibberish.

    SCOTUS has now made themselves into the Legislative Branch. The question now is how do they intend to enforce it, which is exactly what the the Executive should tell them.

    I can envision a Democratic Congress repealing the Religious Freedom Restoration Act, the alleged basis for this ruling and just what then will the Court do when it’s gone?

    The court’s decision will not stand.

    Continuing to allow corporations to have rights of personhood is not acceptable. This, too, will change one day.

    This is the worst Supreme Court in this history of the country, based on the unprecedented harm they have done repeatedly to the Citizens of our beloved Country, the very Citizens cited in the Constitution as “We the people.”

    28% or less may be happy with this decision, but the rest of us will be heading off to the polls to express our disgust. We may not win in 2014 or even 2016, but you can bet there will never be another census year where the electorate stays home and allows those who wish to DO NOTHING but destroy this government to govern again, no matter how many laws the Court overturns to keep us from voting.

    Be careful what you wish for. This may very well have been that final straw.

    • “What right should an employer have to choose for their employee the type of health care they should receive?”

      Wrong question. Hobby Lobby’s employees are not forbidden from using any of the 4 forms of contraception whose cost Hobby Lobby does not want to subsidize.

      “If I were Jewish and demanded you eat no pork as my employee — and that includes while you are NOT working, would that be acceptable to you?”

      Wrong question again. Hobby Lobby isn’t demanding that its employees do or not do anything. It just doesn’t want to pay for 4 particular forms of contraception. Its employees are perfectly free to procure said forms of contraception on their own initiative and on their own dime.

      “What if your employer was Islamic and required all women in his employ to wear burkas?”

      Once again, Hobby Lobby isn’t requiring its employees to do or not do anything. But consider this: what if your employer is, say, an Islamic halal meat seller, bakery, or restaurant and advertises itself as such? Would it grievously offend you — I mean, would it be the end of the world for you — if the employer required its female employees to wear head coverings?

      • You asked if it would be the end of the world if an employer required “its” (but corporations are people) female employees to wear headcoverings. Well, that depends. If it is for religious or moral reasons, then yes, that becomes a substantial burden and a discriminatory burden as well.

        If an employment contract is to become a megaphone for the individual employer’s religious beliefs (or the beliefs of the majority of board) then the state is saying it has a compelling interest in allowing religious beliefs to trump all other rights; and moreover to privilege the religious beliefs of whoever holds financial or legal power to coerce others.

        The USA was not founded to be a theocracy or a nation of competing theocracies. As a woman of faith myself I think one of the truly great things about our country, by comparison with many, many others I’ve lived in or studied, is what used to be our separation of church and state. I hope to see a return to that state of affairs very soon indeed.

  85. I guess I’ll bring it full circle now that the media circus has died down. I have this to say to the naysayers who have joined us in this thread:

    Welcome. Beneath the surface issue you have joined this blog for lies a series of human beings that gather together and wonder at legal issues and the world. We speak our opinions, debate each other, and respect each other. Judge Kopf initiates the debates, but we all talk. We each have our own story, but what brings us together is a common passion for the law, for life, and for liberty (and, in my case, loquaciousness).

    You have trampled flowers in this garden of knowledge. I am saddened by this. But perhaps some of you will stick around, read other posts and see what what we are. Perhaps I’ll get to know some of you soon. I look forward to it.

    -SLS

    • Thanks for the welcome. I am one of the noobs but will absolutely make a home here. I truly find it refreshing to hear the thoughts from a judge…..and to know there is humanity beneath the robes;) Looking forward to getting to know you all!

    • The problem here is that SCOTUS has declared that not only does religion trump law, but the religion of a few is imposed on the many. Additionally, this latest SCOTUS debacle cements the irrational mind set that corporations are “people.”

      • “The problem here is that SCOTUS has declared that not only does religion trump law, but the religion of a few is imposed on the many. ”

        No. And no.

        You haven’t actually read the opinion, have you?

        But, really. Because a few people, working for a few private companies, have to be troubled to go to their local pharmacy (oh! the agony of a 5 or 10 minute car ride to Walgreens!) and buy a 4 particular forms of contraception (oh! the travesty of being limited to “only” 16 of 20 forms of contraception under one’s employer-furnished health insurance plan!) on their own dime (oh! the horror, the utter and absolute horror of spending one’s own money on something instead of forcing other people to spend THEIR money on it, too!) it’s the end of the world?

        • You are missing the point, Professional.

          The court ruling very well may be limited to “only” 4 of 20 forms of contraception (for now). The point is, the court has stepped in and made a judgement call. Why just those 4? Why not all 20? Why not other aspects of medical coverage? Alito claims the ruling is limited; why? Why are the sincerely held believes of other religious people not subject to the exact same deference as given Hobby Lobby’s “decision” to exclude 4 types of birth control?

          The court has no effective mechanism for accurately or adequately evaluating these complex questions of policy and judgment. So in order for the court to make such a proclamation, it creates the appearance that the judges are relying on factors extrinsic to the case. What, Jehovah’s Witness’ objection to blood transfusion coverage is too far out there? There aren’t that many of them? There isn’t a closely held corporation that claims to be a Jehovah’s Witness? One is left with the distinct impression that the judge’s based their decision not on legal grounds, but on something else.

          Please, step back for a moment from your own agenda and try to see the broader effect and potential for chaos this ruling creates.

          In terms of unintended consequences, this case may be rather large. Reminds me of the Satanic monument at a certain Oklahoma court.

  86. Maybe you should STFU and read the Constitution. The Constitution gives everyone the right to practice their religion. So why should we abandon that right just to participate in commerce. It is you, and people like you that course the political discourse. You need to read over your posts before hitting Post.

    • Andrew Valente… Take a pill, man… (pardon the pun) If it’s equal on the choice of religion.. what if someone was super into making love but not babies… and that was their choice? Should they be called out? Or should it be just the religions that have been around for a while and have made a name for themselves? People who want to work and want to provide but don’t want children and are good people but want to have sex… please put them into a category…. go…

    • IN 1973 six crotchety old white men and one crotchety old black man wearing Black Robes ruled that women may slaughter with impunity their own flesh-and-blood babies in utero. HORRIFIC JURISPRUDENCE

  87. Reblogged this on A French in US and commented:
    I liked how this post so simply put what many of us felt:

    “The decision looks misogynistic because the majority were all men. It looks partisan because all were appointed by a Republican. The decision looks religiously motivated because each member of the majority belongs to the Catholic church, and that religious organization is opposed to contraception.”

  88. Pingback: Federal Judge tells SCOTUS to "stfu," & is Asked "Please Stop" - Taylor Marsh

  89. “(and I am not saying the Justices are actually motivated by such things)”

    Which didn’t stop you from suggesting so.

    As for the rest of this piece, if I were to hear that a piece of the ceiling of your courtroom collapsed and hit you in the head, I would not be surprised to learn that excrement, not brains, was the substance to squirt out your ears.

    I hope you realize that you have disqualified yourself from hearing any number of cases. In fact, I would strongly suggest that your obnoxious little post here has pretty much shown you incapable of rendering any impartial judgment, and you should step down from your position. Given the little tin god arrogance that motivated you to write this, however, you probably won’t.

    In the meantime, I would strongly suggest that you take your own advice and stfu.

    • I wonder if you truly understood the meaning of his post. He wasn’t bashing the court in the slightest. He was telling the court to stay out of some things. Maybe you shouldn’t have clicked the post if it bothers you so much?

  90. I agree 100%. There is no legit reason why the court ruled as it did, let alone taking the case to begin with. I wonder if the shoe were on the other foot and 5 female justices flipped the decision. Would the outrage among Catholics and their conservative friends be correctly founded? Of course it would. There are some things that effect too many people to be decided on a single entity. The court has been overly predictable since the Bush days…. and that is just not a good thing.

  91. As a historical reminder, the RFRA came about because Scalia authored a decision denying unemployment to a Native American fires for smoking peyote, which he claimed was his religious right. Scalia talked about how religious beliefs do not excuse a person from complying with an otherwise valid law.

    The RFRA then went on to say that people have the right to exercise their beliefs without being penalized. The Supreme Court struck the RFRA down. And that’s where matters stood until the court decided that the RFRA is not so bad after all if its used by white Christian guys to police icky girl parts.

    Yesterday the gitmo detainees filed suit under hobby lobby demanding their religious right to assembly in Muslim prayers. That’s going to be oodles of fun- what contortions will be used to distinguish their rights from hobby lobby?

    • SCOTUS ruled that RFRA can’t be enforced by the federal government at the State level. However, RFRA continues to be applied to the federal government which includes Obamacare; for instance, in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal – because Congress has broad authority to carve out exemptions from federal laws and regulations that it itself has authorized. In response to City of Boerne v. Flores, some individual states passed State Religious Freedom Restoration Acts that apply to state governments and local municipalities.

      Thus, many states passed their own RFRA legislation.

      Facts Matter and the WHOLE TRUTH & NOTHING BUT THE TRUTH, so help U.S. God, is required for ignorant Americans to be disabused of their ignorance.

    • First you are assuming the law in question is ‘valid’. When it is changed and rewritten by the Executive branch, it ceases to be valid if he can dictate the invalidation of said law by virtue of hand wave.

      The detainees at Gitmo should not have specific rights to sue this gov’t under this Constitution IMO, as they are enemy combatants against the state and ought to be denied any standing to sue the United States.

      In my non-legal educated opinion, that would be a way to avoid the “contortions used to distinguish their rights”.

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  94. Judge,
    I read your juvenile response and half-baked rant about the Hobby-Lobby case and could only imagine the embarrassment that the President who nominated you for your appointment to the court must feel now that you’ve displayed your total unprofessional conduct for the world to see. Justices are expected to act with a modicum of decorum or at the very least, an ounce of class. You exhibited neither in your pathetic rant about Hobby-Lobby. As a mere citizen, without the inflated super-ego that you seem to carry, I have to admit that your “style” of response strikes me as the reason the courts in this nation are laughed at as completely devoid of Judicial integrity.

    I have to say that I doubt you even possess the intellect to realize how foolish you look to the world when you write your idiotic diatribes. This one about the Hobby-Lobby case is the most ignorant since the entire substance of your disagreement was based NOT in Constitutional basis or legal precedence, but simply a hysterical emotional rant by an angry jurist who acted like a 2-year old who didn’t get his piece of chocolate candy. To say that your response was unprofessional is the understatement of the world, and yet, this is the garbage that is coming out of the courts these days. Did you have a similar hysterical fit, when the Supremes knocked down Obama on his overreach and Constitutional violation when they ruled on his illegal appointments to the EPA, when Congress was still in session? If you did, that would indicate just how extreme to the left that you really are.

    I’m a simple cabinetmaker, and the informing of my understanding of the law comes from the Constitution along with reading the decisions of the Supremes as well as the writings of those like Dershowitz, Turley, Hewitt, and Levin, along with many others, who unlike you, actually seem to base their opinions on the Constitution. I’ve read that you have made yourself available to some local radio shows, but I wonder how you would fare if you took on one of those Conservative jurists that you so revile. Maybe you should try a one on one, with someone on the right, as it might be fun to see you display your ignorance and be made to look like the idiot as you portray yourself. What say you? If one of them called would you be up to the challenge of defending your hysterical rants about the “Republicans on the bench”?

    My advice to you would be to grow up and act just a wee bit more professional than the dime store hooker on Hollywood Blvd act that you portray. You Sir (and I offer that salutation laughingly) are an insult to the bench. Do the rest of the world a favor and take your trash talk vulgarities back to your trailer, would you please.

    I’d submit that those Jurists Thomas, Alito, Scalia, Roberts, and Kennedy have more common sense than do you, and have probably forgotten more about Constitutional law, than you ever learned at the Cracker Jack Institute where you rec’d your JD. Emotional rants don’t amount to legal scholarship, and I’m sorry that Judges like yourself open your mouth and spew your garbage. My understanding is that there is a board of conduct, and if we are lucky, you’ll be required to appear before it, and explain your actions.

    There is a rather proverbial saying that runs along the line, better to keep one’s mouth shut and be thought a fool, rather than opening one’s mouth and confirming it. You might want to heed that advice next time.

    One last thing. Your rant was so moronic that I must ask.. were you drinking at the time you posted it?

  95. With all respect, Judge Kopf, if you cannot show more respect and restraint than this, you should resign from the bench. You don’t bother with one whit of legal analysis, and settle on trashing your judicial superiors principally because the majority were males and Catholic. Do you think male and Catholic litigants and lawyers might wonder about you from now on? And do you think the government deserved to win simply because the Justices in the minority were mostly women and non-Catholic? Why would that be? And what leads you to the obviously foolish conclusion that this issue would be less “divisive” if the other side won? Would those supporting Hobby Lobby just shut up? Is that what you want? Do you in any event hold the absurd view that the “divisiveness” of an issue should dictate the outcome of a case?

    If you want to share the perspective of a judge, good. That is useful and welcome. But do it as an ex-judge.

    We all age, Judge Kopf, and aging takes its toll. Your post reflects that it has taken a toll on the restraint, respect and dignity your office must command.

    Respectfully,

    Bill Otis

    • I wonder how his words would have sat with the general populace if instead of using the word “Catholic” in a perjorative way, he had used the word “Jew”, had all the Justices he disagreed with been of the Jewish faith. The outrage would have been palpable, and yet he seems to feel free to express such anti-Catholicism right out in the open. Very sorry situation indeed and utterly unbecoming of a FEDERAL Judge. The American people should not have to support such a blatantly biased man in a black robe.

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  97. So, let me get this straight. A federal judge is worried about the public perception of the Court, and his solution is to write a piece that actually works to foster the very negative perception that he’s supposedly trying to avoid?

    Frankly, I’m not buying it.

    There are only two possibilities here. Either the judge actually believes the argument that the Hobby Lobby opinion was motivated by gender, politics or religion, and he just lacks the courage to admit it; or, he does not believe those false public perceptions, and he lacks the courage to correct them.

    (Not that this judge actually lacks courage, of course. But, it would certainly look that way to the public.)

    Worse, Judge Kopf presents us with a cure that is worse than the disease. Apparently, Judge Kopf believes that the public’s acceptance of the Court’s opinions would be enhanced by (1) lower court judges publicly attacking the Supreme Court and (2) federal courts refusing to hear meritorious cases.

    He asks, “What harm would have befallen Hobby Lobby family members who would have been free to express their religious beliefs as real persons?”

    Really? What would this judge say if a litigant made that absurdly offensive argument in the courtroom? “Gee, judge, how about granting my motion for summary judgment because, ya know, they’ll eventually get over it, don’t you think?”

    Not only that, but in his quote, Judge Kopf embraces an argument that was only accepted by two of the nine justices. Not even Breyer or Kagan would go so far as to categorically deny corporations the right to bring claims under RFRA. And, for good reason. If corporations are not protected by RFRA, then the government has the power to shut down a Jewish deli or a Kosher butcher.

    After all, what harm would befall the Jewish butcher if he is free to express his religious beliefs individually? I’m sure that the nation’s Kosher food needs can be met by individual butchers who are effectively prevented from doing business in corporate form.

    Poppycock! The Supreme Court simply applied a straightforward state that has been on the books for more than 65 years. That is, whenever a statute refers to a “person,” it also applies to corporations. The statute’s context-based exception would not apply, and this judge should know it. The long-standing principle of statutory interpretation is that “context” is derived from the words of the statute itself. That view was specifically affirmed with respect to corporate personhood by the Supreme Court’s 1993 decision in Rowland v. California Men’s Colony.

    I’m starting to worry that the public might believe that Judge Kopf doesn’t know how to read a statute.

    At the end of the day, this case involves a regulation created by an agency, and the regulation violates a statute passed by Congress. If Congress had included the birth control mandate, the result might have been different. But, as it is, the ACA exempts all employers with fewer than 50 employees, all employers with grandfathered plans, along with any employer that was given an exemption by DHHS. In all, 97% of employers were exempted by statute or regulation. The refusal to give Hobby Lobby a very modest exemption from four types of birth control is just absurd.

    To be honest, the decision is so utterly obvious that it is boring. And, lacking any form of intelligent argument to the contrary, Judge Kopf and those like him are resorting to fanning the flames of public outrage and then pointing to those flames as an argument in their favor.

    And, to what end? As others have noted, this article only serves to disqualify Judge Kopf from any case that turns on the concepts that he trashed here. And, by “concepts,” I basically mean “the law.”

  98. Pingback: Judge Kopf and the Appearance of Impropriety | Simple Justice

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  103. I agree with your post on Holly Hobby but what in the long run what will be the results for corporations? Although the ruling seems a simple thing in the long run could lead to the lifting the veil of protection for corporations and maybe the board of directors of corporations as individuals go to prison for the actions of their employees or unsuspected consequences for their products.

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  105. I find the unmitigated gall of a federal justice to slap down the absurdity of the (obvious) biased Hobby Lobby decision, with a “stfu” reference to be spot on necessary;

    and refreshing.

  106. Unless we’re willing to just exempt business owners from complying with the law based on nothing more than them ~claiming~ that their beliefs are 1) religious, and 2) sincerely held…

    …doesn’t this open the door to the courts necessarily having to put the claimant’s religious beliefs on trial.

    I imagine that would play out something along the lines of a Harper Valley PTA meeting.

  107. This is the oath taken by federal judges: “I, XXX XXX, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as XXX under the Constitution and laws of the United States. So help me God.”

    Please explain, Judge Kopf, how you have not violated this oath by demonstrating a blatant partiality. I don’t see why you shouldn’t be impeached if you don’t resign.

  108. Thank you for using your voice to stand against this horrific decision. I am seeing ordinary folks all over the country express their discontent by forming protests, taking to social media, organizing boycotts, trying to take away corporate personhood through amending the constitution, and turning apathetic at the powerlessness they feel. We need more men in positions of power, such as yourself, taking a stand against such oppressive actions.

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  110. Pingback: Federal Judge Richard George Kopf Tells Supreme Court They Should STFU | Beat the rich

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  112. Maybe you should just STFU….and retire….How disrespectful-I don’t care who you are, they are in that position for a reason and demand respect. I don’t agree with Obama on just about everything, but I wouldn’t go espousing such a childish response to one of the highest positions in our government.

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  114. Lordy, lordy, what do we have here, a self-important big mouth from a Podunk town who thinks that Hizzoner is more wise than five Justices of the Supreme Court? Cool your jets, Jethro, before someone decides to haul your pale ass in before the Supremes for contempt.

    The fact that all five Justices are male and of the Catholic faith is of no consequence- this country was founded on the principle of religious freedom (I myself reject all the nonsense of “faith”, having seen the hypocrisy behind all religion and the human suffering that it has caused through the ages). Your ire over a corporation being permitted to decline coverage for abortifactants fails to recognize the reality that the owners of a corporation, as individuals, have “unalienable rights” under our Constitution, rights that they do not surrender just because they have banded together in business to generate a profit, incidentally providing good-paying jobs for their employees. (Jobs that, if an employee does not like the “benefits package”, he or she is free to seek employment elsewhere.)

    If the owners of Hobby Lobby wish to declare that they refuse to adhere to the demands of the power-drunk moron squatting in the White House, that is their prerogative. In their petition before the Court, the shareholders of Hobby Lobby objected to being forced to cover Plan B and Levonelle, otherwise known as “the morning-after pill” and “the week-after pill.” These pills are intended to prevent a fertilized ovum from being implanted on the wall of the womb, effectively destroying the ability of an egg to thrive, ultimately resulting in the egg being flushed from the womb with the woman’s next period. To persons whom believe that life begins at conception, that is abortion, plain and simple. The birth control methods that Hobby Lobby covers (and there are MANY), all PREVENT conception, and in the minds of the faithful, that is a big difference- no fertilization of the egg means no conception, and thus no life was ever created.

    And before you and the rest of the “Liberal Intelligentsia” whine that Hobby Lobby is just trying to save money…. I’m sure that their shareholders are well aware that a pregnancy or two is going to cost the corporation FAR more than a few pills (hospital and natal care is paid for in one way or another. Insurance coverage is not a freebie for a corporation, contrary to what The Emperor With No Clothes would like the unwashed masses to believe.).

    So, the next time that you consider opening your yap, risking proving to everyone the limits of your ability to think rationally….well, to use your own term, STFU before you embarrass yourself again.

    BTW, perchance are you a close relation of Delaware’s own VP, Joe (“foot in mouth”) Biden?

    Thomas Weitkamp
    Newark, Delaware

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  116. As a Protestant, I agree with Hobby Lobby and think the Supreme Court’s decision should have been unanimous. The government needs to stay out of peoples’ lives. The less interference, the better.

    • so let’s take down all the stop signs….go drive in most everywhere else in the world.

      get out of the business of clean water…hell private business could do that better any day…just see how they do it…in Indian and Pakistan

      that police officer objecting to my robbing of the bank…is downright government interference…as the issue should be between the bank owner and myself

      everyday I have to teach and help to develop my 2 year old…to grow and understand…that the world is not just about his individual wants and desires…his personal expressions of freedom…but rather it is about his part in the great scheme life…where as thinking thoughtful beings…we learn to understand…that you and me together are stronger…and that requires a great level of mutual respect and cooperation…not just starring in the mirror…thinking only of myself

      as societies become more complex…government becomes a necessary tool…but if government is co-opted by self-seeking self-focused elements…without regard for others…then government can become…oppressive or absent when necessary…or ineffective in application and effectiveness…and a concern for “all” citizens…and not just the few…who know the right way…that we all most follow…like corporations…our government is not…a person…separate and apart…from “we” the people…in a land where some benefits will be necessary for the few…as flood control in the Mississippi Delta…benefits me here in Palo Alto…did you feel that earthquake…and a storm is brewing off the Miami coast

      when we start to say cooperatives…gives any group of people…additional rights…in a society…still struggling to understand equal…to me seems obscene
      and way out of line…from where our thinking and focus should be…as we agreed as a people…just a few years ago

      I come from a mixed society…divide on not just religion…our region…I rep the 650…mentality…where we forget it is always about…We The People…and not my individual self…we are challenged about core beliefs and understandings…but like all past history…where my thoughts were of Manifest Destiny…my very being is blessed and ordained by God…my role to Lord over others…condemned to their lot by God…

      this conversation is about more than 4 pills…it is time that we all come out of the closet…of flawed thinking and old-lined final battle fields…to prove by might…who is right…forget the deeper morals of the story…I’m on the throne…and your head is on a pike at the gate…I am from the Eastside…you that freak left-hander…God certainly didn’t intend that…opposing all that you think is good

      the health of a mother…our birth place…both her physical and mental…but also her emotional and economical possibilities…each critical to the health and wellbeing of her baby…the future citizens of Our Nation…those 1st seven years spell the future…so if a mother is not prepared and fully healthy…Our Nation will be burdened…whether we choose to acknowledge or ignore…that current fact of life on too many corners…of this nation…we call America

      so from this boy…born of an American ghetto…we are challenged enough as individual people…to fail…to understand the true needs…that contribute to and support…We The People…no religion…or flag color…or invading army…or me over you…should ever dominate…the conversation between me and you…our mutual understanding…life’s core…necessary to build that more perfect Nation…where “We The People” have the individual liberty..to pursue Life’s Perfect Dreams

      our challenge throughout human history…has been us against the world…which revolves around me…and my needs…which I deeply believe…and how will I trust those things across the stream…when I know they better be thinking…exactly like me…and God that there scares…the Living Hell out of me

      we can grow…at least as a people…if I share my water…and you share your chicken leavings…and have a beautiful garden…this is no pipe-dream allusion…it is called… toward a more perfect Nation…the intent of our Constitution…at least that’s what I learned in my segregated classroom…

      my needs…so core to human life…wise men before us…called rights…and this was Our reason…for forming this Nation and Our Government Institutions…but if your rights…are ever more supreme…to my rights of survival…then we challenge Our commitment…to “We”…The People

      and in my need to preserve all life…my Hindu neighbor…seeks the banning of all pesticides…as others seek to end that right to life…here on earth…as God had so intended..that we grant all life that right…that is not ours to give or hinder…but to support and cultivate

      so what is truly more important…the release of pollen to random chance…will determine who is the strongest…if that is our belief…then every life seed…must be valued equally as important…my Buddhist neighbor might also whole-heartedly agree…

      that if the garden where life will grow and bloom…is not healthy enough to support life…then we as a Nation have failed in our first and most important duty…to preserve and protect…the Life of each and everyone of our citizens…who become protected citizens…right there as dated…on the top of their birth certificate…the only date government can consider certain…and apply the protection as instituted by we the people

      anything short of this Constitutional Duty…on the part of our Government…and the efforts of we the people…is clear as a failure…of Us as a Nation…as is stated in our constitutionally agreed intent…and this intent should and always be…our preeminent effort focus as a Nation and as a people

      as just a brother from the ghetto…who believes there are some lives that deserve some respect…those of us born…to a life of turmoil and strife…is this our punishment in this life…or do we stand as a lesson…to see if my neighbor…really truly…has a valve for human life…my failure will be your burden…locked in your castle…so easy to ignore…but below the soil is being poisoned…not long before a knock is bound…to arrive at your door…

      what is truly called for…at this time and place…is an understanding of love in the time of cholera…where my health may well determine yours

      Armondo Barboza-Ross
      In Ownership of My Free Speech
      And The Retention To All Said Rights
      July 10, 2014
      With All Acknowledgement Of Those Who Went Before Us
      And Paid For Our Collective Freedom With Their Lives
      They Sacrificed Their Rights Of The Moment
      In Order To Guarantee Their Dreams
      For All Peoples Rights To Life

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  118. Thanks for the link to the acronym “stfu” judge. You are always educating the masses you sneaky devil you. I always wondered what that meant.

    Very good to see you are feeling a bit better and exercising your fingers and instigation reflexes.

    So, now that you have seemingly pissed off all the Catholics in the known universe do you have any plans to go pheasant hunting with peaceful Quaker anarchist farmers in Nebraska this fall?

    After the dog days of summer pass one shouldn’t be spending all fall behind a keyboard…

  119. As a judge, you are held to a higher standard of accountability, which includes the language and tone you use. “Even fools are thought wise if they keep silent, and discerning if they hold their tongues.” Proverbs 17:28

  120. Dear Judge Kopf:

    Thank you for your blog post in this case. Your honestly held input in this case is important to the education of us “real” people, in understanding why some benefit and others are rejected by a body that by constitution should be committed to protecting the rights of “we the people”.

    As an average working American I am deeply concerned with the behavior of the Court over many years. Concerned that a Court could in 1886 hold that the 14th Amendment granted “personhood” rights to Corporations………but at the same time struggle until this day……with how to allow this Nation’s Black Citizens to enjoy those same rights as was the true intent of that same Amendment.

    It is likely that much that you hold dear we will both disagree, but I appreciate your openness and honesty.

    I commit to reading all your blog post…some of your comments will likely make me down right angry…but between the stars, flames and thunderbolts…I might learn some small kernels…that lead me to be a better citizen.

    Thank you for exercising your right to free speech….and for your contributions…to our collective struggle to form a more perfect nation.

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  122. Interesting that a large corp is not entitled to the same “person” status as a small Mom and Pop corp.
    So the 800 lb man that goes to court is not a real person either because he is too big???

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  127. Sorry to add my lowly womans point of view, but didn’t Bill Clinton sign into law the Religious Freedom Restoration Act, 42 U.S. Code Chapter 21B – RELIGIOUS FREEDOM RESTORATION.

    In which these two seem to be particularly relevant;

    42 U.S. Code § 2000bb–1 – Free exercise of religion protected –
    (a) In general
    Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.

    (b) Exception
    Government may substantially burden a person’s exercise of religion only if it 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.

    (c) Judicial relief
    A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.

    § 2000bb-3. Applicability –
    a) In general
    This chapter applies to all Federal law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after November 16, 1993.

    (b) Rule of construction
    Federal statutory law adopted after November 16, 1993, is subject to this chapter unless such law explicitly excludes such application by reference to this chapter.

    (c) Religious belief unaffected
    Nothing in this chapter shall be construed to authorize any government to burden any religious belief.

    I would also like to point out that in this particular case, Hobby Lobby already provides coverage of 16 forms of birth control, out of 20. They are against those remaining FOUR types of birth control that could/can be seen as on the abortion side of contraceptives. Yet as I read the blog, some replies and even Hilary Clinton’s own comment about this, it would seem that many people and many news outlets are choosing to say that Hobby Lobby is NOT offereing coverage of ANY birth control/contraceptives, which is blatently false.

    I have also read many comments on the internet that people seem to think that this ruling will extend to other types of medical coverage such as cancer treatments, yet when I had pointed out that the Supreme Court specifically stated that this ruling ONLY affects contraceptives I was told I am stupid and cannot read, even after I provided the link and quote.

    It seems that anyone that ACTUALLY reads the whole of the Supreme Courts judgement on this particular ruling will be shouted down by those that are ASSUMING what was really said and passed.

    I could say that sadly a judge falls into that trap, but I will grant that even judges, and lawyers by extension, are only human. However, I will still say that presenting ALL facts will only strengthen an argument over just presenting an emotional charged ‘blog’ will. And I for one prefer to have all the facts over only emotions to decide how good or bad a judgement is/will be.

    I will close with this, I am NOT a lawyer nor a judge. I am just a woman that was raised to think for herself and to search adn research for FACTS before making my own mind up and to NOT let others think for her or to choose for her. That said, I am an odd one that CHOOSE to get married before getting pregnant, work and pay for my OWN insurance, work and pay for my OWN birth control and to just work and to provide for my OWN family. Guess that makes me an oddity, but I am very proud for that.

    Peace to all and let the flaming, bashing and death threats commence (yes I have been threatened with death for simply NOT being a Democrat, they didn’t care whom I may or may not have voted for and I have been threatned with death for NOT agreeing 100% with a Liberal and their POV – I am an Independant in my voting as I have always been taught that we have to choose the best for the job, not whom ANY party chooses for us)

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  129. Your one statement that corporations are not persons. So why did the Supreme Court rule that Corporations / businesses were persons a year or so ago? I never understood that ruling , other than it was a power play so as to allow immense contributions during voting periods for Presidential and other elections. The Supreme Court as well as other levels of court have sat up dangerous rulings / laws situations for future days in all citizens lives.

    • They have the same powers as the “person” does, as we all are traded on the NYSE via our Birth Certificate, so why would there NOT be a “corporate personhood”? BTW, there is a guy that is challenging this, by having “corporation papers” in the car seat next to him and driving in the car-pool lane.

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