Hobby Lobby and the death of all reason

Today the Supreme Court released their verdict in Burwell v. Hobby Lobby or, as people know it, the case about contraception.  The ruling came down 5-4 with all the women plus one dissenting.  The talking heads have been at it all day and I doubt that I could add anything very novel to the discussion about the politics around the case.  That said, my particular schooling is in business so there are some things I want to say about that.  First let's talk about the case.

Just the facts

Hobby Lobby, Conestoga Wood, and Mardel are each corporations that are privately owned by small families.  For brevity I will refer to Hobby Lobby from here on out, but I include all three companies when applicable.  These families have brought cases against HHS over the Affordable Care Act's mandate that large employers provide contraception to their workers.  Specifically they object to four of the 20 contraceptives that have been approved by the FDA on the basis that they can prevent a fertilized egg from implanting in the uterus..

• Plan B "morning after pill" (Note the sidebar box at the top of the page)
• Ella "morning after pill"
• Two different Intra-Uterine Devices (IUDs)

According to the Mayo Clinic, Ella can prevent a fertilized egg from attaching to the uterus.  As for the IUDs, one does and one doesn't according to WebMD.  Disclaimer here:  I'm not a doctor.  Do not take what I say as definitive medical knowledge.  I just know how to use Google to find things.

So Plan B and the copper IUD prevent the egg from ever getting fertilized.  That seems like relevant information in a case about abortifacients but who needs facts in a legal case?  I can find no place where actual doctors were brought in to educate anybody about how these things work.  Just accept that two contraceptives whose only function is to prevent fertilization were lumped in as abortion drugs.  And real abortion drugs, such as RU-486, are not mandated to be covered by the Affordable Care Act.

If you really want to get your nerd on, here's an actual academic paper on emergency contraception.

Seems legit

There are particular lines from the verdict I want to call out.  Ruth Bader Ginsburg's dissent is becoming perhaps the mostly widely read dissent (by laymen) in history so I'll leave that alone.  I'm more interested in lines from the majority opinion.

"According to HHS ... if these merchants chose to incorporate their businesses ... they would forfeit all RFRA (and free-exercise) rights."

Yes.  Exactly this.  By definition a corporation is its own "person" in the legal sense.  To quote that link, "The process of legally declaring a corporate entity as separate from it's owners." (emphasis mine)  It is separate.  This is meant to protect the owners, but it also means that the new entity does not share any personal traits of whoever owns it at the moment.  Not heredity, nationality, opinion or religion.  This new entity is not concerned about it's own immortal soul, and can make no decisions concerning religion.  So it is right that once you incorporate a business, the business loses RFRA protections.  The owners are still protected personally, but the gap that keeps them safe from liability also separates the business from their religion.

"As we will show, Congress provided protection for people like the Hahns and Greens by employing a familiar legal fiction: It included corporations within RFRA’s definition of “persons.”

Even the majority acknowledges that considering corporations to be people is a fiction.

"And protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies."

Nope.  They're two separate groups.  See above for the definition of incorporation.

“General business corporations do not, separate and apart from the actions or belief systems of their indi­vidual owners or employees, exercise religion." - Third Circuit

"All of this is true—but quite beside the point. Corporations, “separate and apart from” the human beings who own, run, and are employed by them, cannot do anything at all. " - Alito

Someone send the Third Circuit a basket of cookies.

Let's look at Alito's point.  Apart from the people who run it, the corporation is basically a stump.  When I was a boy, my great-grandmother was almost always sedated by her medications.  Other people cared for her and made necessary day-to-day decisions for her.  If one of the people who saw to her needs was Jewish, would that make my grandmother a Jew?  No, it wouldn't.  What if they were gay, would my grandmother get a hankering for girls?  No, that's idiotic.  The traits of those who act on behalf of an entity are not assumed by that entity.

"According to HHS and the dissent, these corporations are not protected by RFRA because they cannot exercise religion. Neither HHS nor the dissent, however, provides any persuasive explanation for this conclusion."

Wait... people arguing in front of the Supreme Court couldn't explain how a mental concept couldn't exercise religion?  Who did the government send, Mr. Bean?  Dorf does law?  WTF?  One more:

"The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients."

See how science and reason were barred from the courtroom?  Show me in the bible where anyone discussed Plan B or copper IUDs.  Plenty of religion relies on unquestioning faith and I'm not challenging anything intangible like heaven or a soul or a deity or the divinity of certain practices.  But I am challenging the idea that uninformed opinions can be passed off as religious beliefs.  I mean opinions about things that can be explained in the here and now.  

I guess, in the face of Young Earth Creationists, that needs to be narrowed further.  These drugs and devices were invented recently, and information about how they actually work is only hidden behind the effort to find it.  Just researching this blog post I have 20 or so tabs of information open.  It is easily found.  This isn't ignorance on the part of the Greens and Hahns, it's forced negligence.

What now?

The critical problem here is that the separation between owners of corporations and their companies has now been bridged.  Under the guise of religious liberty (and isn't that always the way?) owners can now enforce whatever they want on the employees of their companies.  It doesn't even have to pass a test as a legitimate part of the religion or even a fact.  So long as the owner claims it is his/her religious view, they now have Supreme Court precedent to enforce it on their employees.

What about when the pendulum swings the other way?  When someone dies because they didn't have access to medicine or a transfusion or some other thing denied by religious edict, will the owner still enjoy the protection of the corporate structure?  Or will that protection be found meaningless in light of the transference of actions between owner and corp?  All people attached to a corporation work on behalf of that entity.  If the entity itself is working on behalf of a person, then the separation is meaningless and will be found so before a judge before too long.  This gap in liability is what separates a corporation from a sole proprietorship.  Today's ruling carries dangerous precedent for our entire approach to business structuring.

I submit that the solution to not just today's travesty but several rulings going all the way back to Citizens United is this: Update the Dictionary Act definition of "person" to not include non-biological entities.  Give those things that enjoy legal status but are not human another word.  Perhaps "entity".  And that way we could leave behind this last decade of insanity where people seriously discussed whether the company itself, instead of the people acting on its behalf, were actually capable of worship, or participation at a super-citizen level in our democracy.

Aereo shut down by SCoTUS

Today, 6/25/14, the Supreme Court released their verdict [PDF] on the trial of ABC v. Aereo in favor of ABC and other major networks.  At issue was the question of whether live television could be captured out of the air and rebroadcast on the internet for a fee.  This being exactly what Aereo was built to do.

How does television work?

There are three major sets of players in broadcast television.  The content creators are where the shows are filmed.  Disney is an easy example of a content creator between its Disney channels, ESPN and other properties.  Once the shows are created, the rights to air them are purchased by major networks.  Here we're talking about ABC, NBC, CBS, and Fox.  These titans buy the exclusive rights to distribution and sell those rights to local stations around the country.  The local stations are the final player.  They raise money by selling advertising time (commercials) and using that money to pay a network for content.

What about Aereo?

The history of the Aereo case has been a little ridiculous.  Broadcast television signals have traditionally been free.  Anyone with a set of rabbit ears could watch whatever was being broadcast.  At first, Aereo simply put up a single expensive antenna and allowed subscribers to its own service to watch that stream via the internet.  After all, the broadcast was free.  And the internet is free.  So why not glue the two together for a small fee?

An early legal argument was that the people watching on the internet didn't even have their own antennae.  Long story short, Aereo now has a warehouse full of tens of thousands of tiny antennae which are nominally receiving the broadcasts.  When you subscribe to their service you are renting one of these things and getting its signal on your internet device.  I highly doubt that you aren't still watching a stream from the original antenna, but it made some lawyers happy for a while.

Legal history and Judo

The original copyright act gave the holders of a copyright the legal right to determine how their work was distributed.  When all TV was sent through the air all parties were happy with this deal.  Then something called CATV was invented where one well-placed antenna was connected via coaxial cable to hundreds of homes.  This enabled many homes to receive signals they couldn't otherwise get due to geography or other factors.  It was initially found that CATV services were "viewers" and not "performers" because they only enabled the actual viewer to get a better connection.  The Democrat controlled 94th Congress fixed that right up when they amended the Copyright act and added the Transmit Clause.  Now the rights of the copyright holder don't stop at the antenna on your roof, they stop right at your eyeballs.  Anybody or anything that forwards on a copyrighted work is a "performer", and this is where Aereo got hit.

Follow the money

Why does all this matter?  Stations pay networks "retransmission fees".  Aereo doesn't pay anyone anything.  If they prevailed in court then the whole money pyramid would have fallen apart.  Local stations might not have paid for content and instead found some free way to acquire it.  All protected works that could be captured by camera or other device would enter into the public domain without payment to or even consent of the copyright holder.  People don't pay for things they don't need to pay for, so a lot of money would have been sucked out of the whole TV industry as people got squirrely trying to find their free TV.

What I say

I have been pulling for Aereo all along the way.  I'm a huge fan of technology and innovation and thought that Aereo might have something worthwhile with their model.  If something was going to be free anyways, it should be free however I want to receive it, right?  One of my goals in writing this blog was to force myself into thinking about these things more critically.  I can understand the calls of artists and entertainment workers who say, "If someone is making money off of my work, then I want a cut."  The warm glow of appreciation doesn't pay the rent.  

Innovation and entrepreneurship are awesome.  Technology for the sake of technology though, that's usually dumb.  The "pain" Aereo is addressing is that I can't watch local New York TV while I'm in Texas.  That's not a thing I'm entitled to.  My desire to have all the things that I want is not reason enough to jeopardize the livelihoods of the hundreds of thousands of people who make TV possible.  If I put out a performance with a copyright, I feel justified in saying that nobody else can profit from it without my say so.  If you want to redistribute it for free, have at it.  But if you're going to make $97 million off of my work you're going to give me some of that.

I think there's a market for a home product that takes broadcast signals and streams them from your home computer.  Maybe Aereo will evolve that way.  As much as I hate to say it, I think I side with big business on this one.  Congress clearly defined the old Community Access Television (CATV) services as "performing" the works they were redistributing and that ruling stuck with the cable companies that followed.  Aereo is effectively one giant CATV service, and those are the rules they'll have to play by.