Thursday, July 10, 2014


Political Mayhem Thursday: Hobby Lobby, etc.

A lot of people have asked me for a response to the Hobby Lobby decision last week, in which the Supreme Court interpreted the Religious Freedom Restoration Act to protect the owners of closely-held companies in their efforts to keep some types of contraception out of company health plans.

A big part of my response is that I find it hard to care very much about this issue.  I think affordable contraceptives should be widely available, so it's unfortunate this makes that less true for a relatively small number of people-- but they weren't getting subsidized contraceptives before.  The "religious freedom" issue seems pretty insignificant, too-- given that the company's investments included the manufacturers of the same devices they sought to exclude; obviously, they weren't super-vigilant on this issue.

I thought D.J. Tice made some great points about all this in his opinion piece in last Sunday's Star Tribune:

In the closely watched Hobby Lobby ruling that closed the court’s term last week, the Supreme Court’s five conservatives held that Obamacare’s so-called “contraceptive mandate” cannot be enforced against closely held corporations whose owners have a sincere religious objection to paying for insurance that covers certain kinds of birth control….

Less than two months earlier, in Town of Greece vs. Galloway, the same five conservatives ruled in favor of a town board that begins its public meetings with a prayer, almost always a sectarian Christian prayer, despite the objections of some citizens….

In each case, the conservatives could be seen as ruling in favor of religion, and specifically in favor of conservative Christian sensibilities. Meanwhile, in both cases, the liberals could be seen as subordinating those religious interests to other concerns….

What leaves one wondering about the deepest source of these tangled conclusions is that it’s hard to see consistency, from either faction, when one thinks about these cases in terms more directly involving legal and constitutional principles.

All religious-freedom disputes are about drawing the line between the rights of individuals and the rights of the community, as exercised by its government. The Constitution guarantees individual Americans’ right to “free exercise” of their religion while also protecting them against having religion imposed through an “establishment of religion.” How broadly or narrowly one defines those protections has long left plenty of room for debate.

But between these two cases each court camp jumped from one side of the dividing line to the other. The conservatives protected individual freedom of conscience in Hobby Lobby, but sided with community values over individual sensitivities in Town of Greece. The liberals jumped exactly the other way, defending government-required birth control coverage (never mind religious objections) but decrying a government-led prayer that could bruise feelings.

One could easily imagine a neutral view of religious rights concluding that a brief prayer before a public meeting is no “establishment of religion” — and that a birth control insurance mandate is no infringement of “free exercise.” A more expansive (but equally consistent) view of religious freedom might readily see both the mandate and the prayer as violating private rights. But how easy is it to be confident that anything besides a basic favoritism toward religion’s claims — or a basic coolness toward them — fully explains the justices’ equal and opposite gymnastics in these rulings?

Tice is right-- there should be a consistency here on government imposing a process that affects religious belief, that cuts both ways.  If government can insist on a sectarian prayer, it should also be able to impose a health care system that burdens some religious groups.  Commentators are right when they say that the Constitution itself does not impose a "wall" between church and state, but in practice a wall helps avoid this kind of inconsistency.

From my own point of view, I'm discouraged by another aspect of all this.  Doesn't it seem like Christian groups  are mostly fighting for their rights these days?

There are two problems with that.

First, "rights" are not a Christian concept.  Duty is, obedience, humility, grace… but not "rights."  Over and over, the stories of the Bible reflect a natural order that is not based on individual rights, but on humility before God.  It is a fundamentally different value system that the rights provided in the Constitution.  The First Commandment demands humility and loyalty to God (an obligation); the free exercise of religion demanded by the First Amendment-- a right-- does the opposite.

Second, it is unChristian to have the person you are most concerned about-- in this case, whose "rights" need to be protected-- be yourself.  Christianity is truest when it is giving and other-directed; that is the model Jesus provided.  It simply can't be said that Jesus cared about his own welfare, and repeatedly he taught that what we need to care about is the welfare of others, not ourselves.

In other words, in real Christian victories it is not the Christians who gain benefits, and those benefits are not "rights" but food for the poor, clothes for the naked, medicine for the sick, and concern for those in prison.   

This is really good, Mark. I like both the point about rights a lot!.
Very interesting. Going to go read the other piece now.
What I find most odd is that in the case of Hobby Lobby, no one has even suggested that if employees didn’t want to work there for whatever reason, they don’t have to, or that they could buy birth control on their own, or just take on a little personal responsibility instead of relying on the “impartiality” and efficacy of their government to solve these personal problems. Likewise, if these employees were so enamored of the political process on which they so heavily rely, they could rally around their cause and simply not do business in any way, shape, or form with Hobby Lobby. Adam Smith’s invisible hand has a way of dealing with this kind of problem in a rather harsh way.

Entrepreneurial risk rewards the risk taker with profit (sometimes) and the worker with employment. Without one we wouldn’t have the other. There are no guarantees that there will be profit or permanent employment. Why do we turn to our government and insist that it define a willingness to work into a right guaranteed by the employer? It just doesn’t make sense.

In the case of Greece v Galloway, I wonder if the decision would have gone the same way if the town of Greece was an Islamic enclave.

I find all of this liberal/conservative posturing in the Supreme Court and the resulting ballyhoo from the opined public very concerning. The lines are being very fuzzily drawn by the Supremes and the conclusions very strictly delineated by everyone else. I supposed the public side of this not so unusual, but the Supremes are dancing to their political leanings and are not so blind as lady liberty would have us believe. Limited use law has a tendency to make its way into the lexicon of precedent and the Supremes cannot be naïve to that concept, and yet here we are with these two oddly crafted decisions.
Mark, nice article but I would challenge you to investigate something. In your post you say that this decision affects "...a relatively small number of people." While the Hobby Lobby employees are a relatively small percentage of the US employment, the precedent this decision makes applies to all employees of "closely held corporations." Defining just what is "closely held" is not exactly clear but using the S-corporation definition, that would cover 29 million people. When you consider that Cargill and Koch Industries are closely held, one can see that this can have significant repercussions. I have heard that up to 52% of all US employees are employed by closely held corporations but I don't have any stats to back that up. You might find this Pew Report interesting:
Chip, that's a good point. I am assuming (hoping?) that not many closely-held companies would do this to their employees; if nothing else, for competitive reasons. I could be wrong, though. I just finished a HuffPo piece on this which should make my later point clearer.
In the US, more than 99% of sexually active woman use contraceptives. Couples who do not use contraceptives have a 85% chance to experience pregnancy.

Our society understands the importance of these facts.

A few very wealthy owners of corporations don't believe in the value of contraception because their personal believes find contraceptives offensive. OK, however,I don't think that ridding our society of contraceptives is worth much conversation.

In my youth, most Catholic families where quite large. No longer. The Catholics on the court and in the board rooms, I think, are more interested in the gradual shift in cost of care from corporations to someone else. This was a step. I believe that this decision was not as much about contraceptives as it was about government health costs and who should pay for them. It gives a little more power to owners and takes it from employees.

I believe this and the ruling the same week that deprived unions of collecting dues from non members reflects the extraordinary privileges that corporations are ceded by our courts today. Powerful corporations and individual employees do not have equal power.For this reason we had a union movement and labor laws. Until now we recognized the potential horrendous damage of this imbalance and acted when we saw the injustice. We are now reversing all that we once thought was just.
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