Traverse City Record-Eagle


Hypocrisy in Sotomayor’s rulings

Ed HahnenbergI don’t pretend to be a federal court lawyer, or even a lawyer, but like many HS social studies teachers, I taught law to upperclassmen in a public school. I caught a news bit from Reuters that read: “U.S. Supreme Court Justice Sonia Sotomayor has refused to block enforcement starting next week of a requirement in President Barack Obama’s 2010 healthcare overhaul that some companies provide insurance coverage for contraceptive drugs and devices.”

I always thought that challenges to a lower court decision worked their way up through appellate courts to the Supreme Court, not just to a member of the SC. Apparently, that is not the case. The United States is divided into thirteen circuit courts of appeals, each of which is assigned a “circuit justice” from the Supreme Court.

Today, the circuit justice for each circuit is responsible for dealing with certain types of applications that, under the Court’s rules, may be addressed by a single justice. These include applications for emergency stays (including stays of execution in death-penalty cases) and injunctions pursuant to the All Writs Act arising from cases within that circuit, as well as routine requests such as requests for extensions of time. In the past, circuit justices also sometimes ruled on motions for bail in criminal cases, writs of habeas corpus, and applications for writs of error granting permission to appeal. Ordinarily, a Justice will resolve such an application by simply endorsing it “Granted” or “Denied” or entering a standard form of order. However, the justice may elect to write an opinion — referred to as an in-chambers opinion — in such matters if he or she wishes.

As of September 28, 2010, the allotment of the justices among the circuits was:



District of Columbia Circuit Chief Justice Roberts
First Circuit Justice Breyer
Second Circuit Justice Ginsburg
Third Circuit Justice Alito
Fourth Circuit Chief Justice Roberts
Fifth Circuit Justice Scalia
Sixth Circuit Justice Kagan
Seventh Circuit Justice Kagan
Eighth Circuit Justice Alito
Ninth Circuit Justice Kennedy
Tenth Circuit Justice Sotomayor
Eleventh Circuit Justice Thomas
Federal Circuit Chief Justice Roberts


The latest case of one SC justice exercising emergency powers concerns Hobby Lobby, a national arts and crafts chain with more than 500 stores in 41 states, which is now facing $1.3 million in daily fines after Supreme Court Justice Sonia Sotomayor denied their emergency request to block enforcement of the Obamacare contraception mandate.

The company is owned by the Green family, devout, evangelical Christians. They believe “it is by God’s grace and provision that Hobby Lobby has endured” and they seek to honor God by operating their company in a manner consistent with Biblical principles.”

The family believes the Obamacare mandate to provide the morning-after and week-after pills is a violation of their religious convictions.

“To remain true to their faith, it is not their intention as a company, to pay for abortion-inducing drugs,” Becket Fund attorney Kyle Duncan wrote in a statement.

Duncan said the company would continue to provide health insurance for its employees while they fight the government in court.

“The Green family respects the religious convictions of all Americans, including those who do not agree with them,” Duncan said in a statement. “All they are asking is for the government to give them the same respect by not forcing them to violate their religious beliefs.”

There are now 42 separate lawsuits challenging the mandate.

Yet, in a previous case Sotomayor ruled for a Muslim inmate who was denied Ramadan meals. In Ford v. McGinnis, 352 F.3d 582 (2d Cir. 2003), Sotomayor wrote an opinion that reversed a district court decision holding that a Muslim inmate’s First Amendment rights had not been violated because the holiday feast that he was denied was not a mandatory one in Islam. Sotomayor held that the inmate’s First Amendment’s rights were violated because the feast was subjectively important to the inmate’s practice of Islam.

I’d say there’s a bit of hypocrisy in the Justice’s rulings. Because of Obamacare being forced down our throats, the owners of Hobby Lobby now face violating their religious beliefs, suffering under a penalty that will surely kill the business, or just closing the business down themselves and firing some 50,000 employees.

  • Cindy Brief-Tomlinson

    I find it ironic and hypocritical of religious conservatives to insist that the Affordable Care is a violation of their religious convictions. Christians mission is to take care of the poor, the elderly, every human being. Yet those same institution’s are willing to prohibit women from health care. Right to Life proclaims it must save every fetus, yet id does nothing to stop the mass murders in Afghanistan, Iraq of innocent civilians. I’d like to stop my taxes from going into our monstrous defence fund and war chest, when will the religious right support Right to Life for all?

    • Ed Hahnenberg

      Cindy…Malala Yousufzai, the 15-year-old Pakistani whom the Taliban
      targeted with three bullets to her head because of her relentless objection to
      the group’s regressive interpretation of Islam that limits girls’ access to
      education would have been my choice for Time magazine’s 2012 person of the year.
      You want out from Afghanistan? The minute we leave the Taliban will likely
      target those who educate young girls. Do you want that? That was the original
      reason we began that war…to provide an end to a male-dominated country where
      female education violated their version of Islam. Time’s selection of Obama was
      as irrelevant as Obama continues to be regarding social and financial

      I already have candidates for 2013…Gabby Giffords and her
      husband Mark Kelley for launching a political action committee, Americans for
      Responsible Solutions, which will counter the influence of the gun lobby. I’ll give
      credit to the President if Biden’s task force can curb citizen weaponry.

      There are conservatives like myself who agree with you that
      Christianity’s mission “is to take care of the poor, elderly, every human
      being.” You acknowledge the Right to Life movement. Where I disagree with you
      is that forcing institutions to prove contraception as part of health insurance
      violates the First Amendment. Contraception, in my opinion, is not health care…it
      is a choice made by women and should be paid for on their own. Women can choose
      to have a face-lift, but I object to having to pay for it.

      There are conservatives of various stripes. Obama and
      liberals deny there is a spending problem, yet anyone with a conscience can see
      that that ideology is patently immoral. Just look at the debt clock There is no
      way this country can continue on this path without a bleak and unsustainable
      future for the young.

      As a conservative, I take issue with neo-cons on a variety
      of issues. However, when it comes to the breakdown of the family (homosexual
      and lesbian marriage), abortion, deportation of illegals, the Affordable Care
      mandate, unsustainable spending, and using our own fossil fuels…I remain a

      • Bobdisqus

        Ed you said in response to Cindy:
        “That was the original reason Bush began that war…to provide an end to a male-dominated country where female education violated the Taliban’s version of Islam.”

        That is patent nonsense. We went to war with Afghanistan because the Taliban rulers of that nation harbored al-Qaeda which had attacked the US in the egregious 9/11 suicide attacks. It was the right thing for us to do. That we have made a mess of that war through ill-conceived notions of nation building, and that we made the mistake of the Iraq war does not change the correctness of our decision to go to war in Afghanistan. The Taliban are monsters. But that was not our reason for war. From John Q. Adams famous 1821 independence day speech:

        Wherever the standard of freedom and independence has been or shall be unfurled, there will her heart, her benedictions and her prayers be. But she goes not abroad in search of monsters to destroy. She is the well-wisher to the freedom and independence of all. She is the champion and vindicator only of her own.

        It was as that vindicator of our own that we went to war.

        Off topic from the blog post at hand I know, but your statement seemed to need challenge.

        • Bobdisqus

          That leads in to one of those rare things an Obama decision I can support, the nomination of Hagel for Secretary of defense.

        • Ed Hahnenberg

          Bob…You are absolutely correct. I realized that after fact-checking myself in my reply to Cindy. However, women’s rights to an education have become talking points for staying in Afghanistan.

          In the fall of 2001, the world watched as the American-led coalition forces
          toppled the Taliban regime, and took control of Afghanistan‘s capital, Kabul. Western
          audiences were presented with images of mothers walking their children to school to
          signal the success of the campaign, the demise of the Taliban and the dawn of an era of
          positive change. Provisional tent-schools and back-to-school‘ catch-up programs
          appeared early in the reconstruction process as a response to the enormous gap between
          educated and non-educated children . The media continued to portray women as victims of the Taliban,saved by US intervention and the coalition of the willing. The international community pledged to rebuild the country via the establishment of an interim government and the construction of critical infrastructure like schools and hospitals. Creating opportunities for Afghan women through the promotion and support of basic human rights (including education) was an important indicator of the efficacy of democratization efforts.

  • Ed Hahnenberg

    Henry…Your plan to pay higher wages rather than offer health insurance would work for
    2013. Currently no federal or state law requires private employers to offer
    health insurance to employees, or to spouses and dependents of employees. This
    is scheduled to change in 2014 as part of Obamacare. Until then, the decision
    to offer health insurance is up to the employer. Obviously, employers,
    especially small business owners, benefit from offering health insurance to
    employees. Offering health insurance aids in employee recruitment and retention
    and increases productivity.

    However, in 2014, the mandate for employers with 50 or more employees have to provide
    health insurance or pay a penalty. Such employers must annually pay a fine of
    $2,000 per full-time employee, although the government will waive the penalty
    for the first 30 employees. Employers also might have to pay fines if their coverage
    does not meet certain standards (i.e contraception coverage). For example, the
    employer must pay for at least 60 percent of the value of the plan’s benefits,
    and no employee must have to pay more than 9.5 percent of his household’s
    income in premiums.

    Interestingly, AT&T, Verizon, Caterpillar, John Deere, and other big companies back in 2010 weighed how to deal with the new legislation. Internal documents reviewed by Fortune magazine, originally requested by Congress, show what the bill’s critics predicted, and what its champions dreaded: many large companies are
    examining a course that was heretofore unthinkable, dumping the health care coverage they provide to their workers in exchange for paying penalty fees to the government.

    Institutions (mostly small businesses) that applied for waivers (over 1000) were, for the most part, granted only one year exemptions. Many of them were unions.However, as I noted above, the mandate penalties kick in beginning in 2014.

    Your second paragraph concludes with nonsense. Let me quote it: “Incidentally,if I work for the Catholic Church can’t I use the money they pay me to buy the morning after pill, get an abortion if I want one or do any number of unrighteous acts? Isn’t the Church providing me these services that way?”

    Obviously a woman can use wages to CHOOSE to do what she wants to, but to imply that the Church is complicit in her choices is stupid.

    • Henry Klugh

      You spend most of your long response avoiding my point; which is that by paying their employees the Church empowers them to buy for themselves the very services th Church refuses to provide through insurance. Unfortunately when you have no rational response to a position you refer it as “nonsense” or “stupid.” That for which you have no answer you seem forced to belittle.

    • Henry Klugh

      Your long analysis of “Obamacare” is interesting but beside the point. Money is fungible. If any church provides health care to an employee and pays that employee, then whatever the church refuses that employee through the provided health care the employee can chose to pay for through his or her wages. The
      church provides the funds either way.

      Positions you cannot adequately counter you feel obliged to belittle. Calling my point “nonsense” and “stupid” does not resolve the issue and should be beneath you.

      • Ed Hahnenberg

        Henry…The Church or any religious institution does not “provide the funds either way.” THAT inference is stupid, not you. Generally, you are very astute. However, on this issue, not so much. My analysis is not beside the point, either. There is STILL great confusion about Obamacare, its mandate, and how it will affect small and large businesses. Corporations are stiIl weighing whether it would be cheaper to take the penalties and fines. They certainly are downsizing every day or not making new hires because they don’t know how it will affect their bottom line. I make no pretense to understand what the leaders Congress never read (and I include the Present), but approved behind closed doors. The uncertainty among the corporate community of its provisions is still pervasive. I understand only what I can gather from both sides of the issue. Even the liberal NY Times called the legislation confusing. Americans still disapprove of the ACA by a 55-45 margin, while approving a couple of its provisions such as allowing those under the age of 26 to keep their parents’ coverage and banning pre-existing conditions.

        • Henry Klugh

          You say,”The Church or any religious institution does not provide the funds either way.” So idoes that mean the Church does not pay their employees’ health insurance or does it mean they don’t pay their employees’ wages? If not where do those funds come from?
          Eventually the Affordable Care Act could render this issue moot in some cases and in some states; it is not moot now.

          • Ed Hahnenberg

            Henry…Back to the topic of the blog…

            Hobby Lobbymay have just bought itself a few extra months as it battles against
            the ObamaCare mandate that it and other employers provide employees
            insurance covering emergency contraceptives.

            An attorney for the Christian-owned company says the company has
            found a way to delay the effective date of the mandate, and in turn
            avoid the fines that would be imposed for not complying — at least for

            Peter Dobelbower said in a statement Thursday that the company will shift the plan year for employee health insurance that will delay by several months the Jan. 1 effective date of the
            requirement. He said the company would continue to fight the mandate.

            “Hobby Lobby does not provide coverage for abortion-inducing drugs in
            its health care plan,” he said. “Hobby Lobby will continue to
            vigorously defend its religious liberty and oppose the mandate and any

            Good for them.

  • jimm58

    We disagree about many things but I find your view of Sotomaor’s rulings to be spot on. From rulings like this to Scalia’s homophopbic rants, SCOTUS is losing credibility fast.

    • Ed Hahnenberg

      Jim…Thank you…we have such a divided court, decisions could go either way and be reversed as well…and I shiver to say this…six are Catholics no less.

  • Bobdisqus

    Henry asks “why the federal case”. I find this surprising as it implies he thinks this legislation should have been left to the States a notion that most conservatives could heartily endorse. Yet I seem to remember him as a strong supporter of the Obamacare federal legislation. As with Ed IANAL but it seems to me federal court is where one has to challenge federal statute.

    If insurance companies wish to sell standalone individual reproductive control policies independent of a company’s group coverage enrollment I suspect you will find Ed individually morally opposed to purchase, yet not opposed to their sale even though he finds them personally morally repugnant.

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