How One Bad Legal Decision Can Beget an Endless Series of Bad Legal Decisions

March 25th, 2014
in Op Ed

by Rodger Malcolm Mitchell, www.nofica.com

American law relies heavily on precedent. Later decisions are linked to earlier decisions by a chain of logic that can extend through many decades, all the way back to the Constitution and even earlier.

Follow up:

Early decisions are the ingredients for later cakes.

No law or legal decision is an island unto itself. A wise judge takes that fact into consideration.

Sadly, our current Supreme Court has become ultra, right-wing political, not wise, so its decisions reflect the wishes of the upper .1% income/power group. Prime example: The Court's Citizens United decision, that corporations have the same free speech rights as people, which favoring the rich, ranks among the more regressive decisions in the Court's history.

Could Citizens United and a semi-colon undo Obamacare?
National Constitution Center By Scott Bomboy
March 21, 2014 6:24 AM

Next Tuesday, the Supreme Court will hear two cases related to the Affordable Care Act, or Obamacare, and the stakes are high for both sides. In fact, the interpretation of a semi-colon in the context of the First Amendment could play a critical role.

"Appellants also argue that Citizens United is applicable to the Free Exercise [of religion] Clause because -the authors of the First Amendment only separated the Free Exercise Clause and the Free Speech Clause by a semi-colon, thus showing the continuation of intent between the two," said circuit judge Robert Cowen in the Conestoga Wood appeals court decision.

The semi-colon argument holds that the free exercise of religion and free exercise of speech are linked. Since the Citizens United case gave corporations the same free speech rights as people, the argument states that corporations should have the same free religious exercise rights as people, too, and they should be able to opt out of Obamacare.

The argument is ridiculous - or would be, were it not for the equally ridiculous Citizens United decision, which creates precedent for all sorts of mischief. Not only did that decision provide additional rationale for billionaires to use tax avoiding corporations as secret cover for controlling elections, but it sets the stage for other arguments taking the Constitution far afield.

Citizens United, under the guise of "free speech," allows rich people more free speech than poor people. Lots more. Further, it arguably allows corporations all the rights of people.

For instance, being born in the U.S., you have all the rights of a citizen. Does a corporation, "born" in the U.S., have all the rights of an American citizen?

Does it also have voting rights? Can corporations adopt children? Can a corporation go to jail if it breaks a law? Can a corporation receive a marriage license and thereby receive the tax benefits of marriage? And what if some shareholders, officers, etc. are foreigners. What then are the rights of the corporation? Does a corporation need a visa or passport?

And so we come to the Hobby Lobby and Conestoga Wood cases:

In Sebelius v. Hobby Lobby Stores, Inc., the national hobby and crafts chain store asked the Court to take on the birth control mandate that applies to for-profit companies.

The issue in the Hobby Lobby case is if the company is protected under the 1993 Religious Freedom Restoration Act, which says the government "shall not substantially burden a person's exercise of religion" unless that burden satisfies strict scrutiny. Hobby Lobby claims as a family-owned company, its religious rights are violated by Obamacare.

In the Conestoga Wood case, a Mennonite family-owned, profit-making business claims that the ACA's birth control mandate violates the company's rights under the First Amendment free exercise clause and the federal Religious Freedom Restoration Act.

If a corporation has the free speech rights of an American citizen, who determines what that speech shall be? Is a corporation merely a surrogate for its president? Or its chairman? Or its board of directors? Or its shareholders? Or its employees? Or the employees' union? Whose free speech are we talking about?

The Supreme Court, in its unseemly haste to favor the rich over the rest, has opened the door to all sorts of related questions.

What is the religion of a corporation? Is it the religion of the above-mentioned president? Or of the chairman? Or of the directors or shareholders? Or of the employees or union?

What shall we make of a corporation owned mostly by Christians, but which hires Jews and Muslims and even promotes Jews and Muslims to executive positions? When is it a Christian corporation and when is it not? Does it lose its "Christianity," if some of its stock is sold to non-Christians?

And what if some of those Christian owners, executives, etc. are Catholic and some Protestant of various denominaions? What makes this corporation Catholic or Protestant? Does a "Muslim corporation" have legal redress if a Christian corporation refuses to hire it for a job, because of anti-Muslim bigotry?

Yes, bad law tends to extend its tentacles:

The Hobby Lobby-Conestoga Wood case is the first of more than 90 related cases filed by other religious-oriented plaintiffs, including hospitals, social service agencies, universities, schools, and companies.

Kaiser Health News estimates that more than 1,000 religious institutions and other employers with millions of employees have objections.

Here it comes. Every religion has its priorities. And if we assume corporations have the same rights as people, who has the right to decide a corporation's religion, even when most of the employees and customers are of a different religion?

"Oh what a tangled web we weave, when first we practice to deceive" the American public, and to please our wealthy benefactors! Yes, the whole thing is ridiculous, but when you begin with ridiculous incredients, you aren't going to get a sensible cake.

Interesting times ahead for what arguably will be remembered as one of our less admired Courts. Let's see how they try to wriggle out of the complex maze they have built. Will they cook up an even more pro-right wing (rich), anti-left wing (poor) complexity. Soon the Court will attempt to bake a cake using the bad ingredients of its own making.

Note to Supreme Court justices: No matter what you do now, you will look like fools.


Mitchell's laws:

  • The more federal budgets are cut and taxes increased, the weaker an economy becomes.
  • Austerity is the government's method for widening the gap between rich and poor, which ultimately leads to civil disorder.
  • Until the 99% understand the need for federal deficits, the upper 1% will rule.
  • To survive long term, a monetarily non-sovereign government must have a positive balance of payments.
  • Those, who do not understand the differences between Monetary Sovereignty and monetary non-sovereignty, do not understand economics.
  • The penalty for ignorance is slavery.
  • Everything in economics devolves to motive.









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