Religious Liberty: The Hobby Lobby Supreme Court Case

As promised, let’s talk more about this Hobby Lobby Supreme Court Case and religious liberty. Hobby Lobby is a for-profit business run by Christians who claim that their business model incorporates articles of their faith. Their court case is against the “employer mandate” portion of the Affordable Care Act (ACA) – “Obamacare” – under the Religious Freedom Restoration Act (RFRA). Their claim is that the law mandates they provide health insurance coverage for their employees which will include reproductive health medicines they believe are abortifacients which they claim are against their religion. It is somewhat of a complex claim. There are lots and lots of things to talk about here, but first I think we should make a few things clear about their claim and their religion.

#1 – We the people, as a voting public, legislature, Supreme Court, or government in general, cannot and should not judge their religion. Whether or not we believe this action is actually anathema to their religion is not at issue. They get to define their religion. Not us. Not official dogma. Not their religious leaders. Only them.

#2 – We do, however, get to determine whether or not we believe any burden that is imposed on them is “substantial” enough to warrant accommodation. And we get to determine whether the reason the law was made in the first place is a “compelling” enough interest to override the burden imposed on them and their religious conscience. (For more on these terms and this calculus, please see last week’s blog.)

So onto the problems.

Problem #1: A tax is not a burden.

I wrote a lot here in my earlier drafts about the legal problems of this case, but it was too long and too esoteric. So, I will summarize very quickly and let you move onto the “sexier” problems:

1. In the Supreme Court case which upheld the ACA, the justices determined that the “employer mandate” is actually not a mandate after all, but a tax.

2. Taxes are not substantial burdens to our religious conscience. No one gets to exempt themselves from paying taxes because they disagree with the things those taxes pay for. No one gets to pick and choose what their taxes pay line by line. I am a pacifist and I have to pay for a military with my taxes. Such is life. Whatever moral complicity I bear, it is not enough to warrant accommodation from paying my taxes.

If you want to read more about this, I HIGHLY recommend this incredible blog piece.

Problem #2: Whose religious liberty?

The owners of Hobby Lobby are petitioning that to provide insurance coverage that provides Plan B and certain IUDs would mar their religious conscience and cause moral guilt. But what about the religious conscience of their employees? After all, it is the employees who will be electing to either make use of those medicines or medical procedures, not the employer. Nevertheless, the employer is saying that even by merely partially paying for insurance which grants opportunity to use these medicines or procedures (which are all legal), their religious conscience would incur substantial religious guilt.

At the moment, these same employers are not providing health insurance. If their employees want to get an IUD or use Plan B medication, they have to use their own money. But that money comes from working for this company. So it goes like this: Money starts in the hands of Hobby Lobby, then goes to employee in exchange for their work, then goes to a hospital or pharmacy. According to Hobby Lobby, this does not make them morally complicit. But if the money begins, the same as before, with Hobby Lobby, then goes to an insurance company in exchange for an employees work, then goes to a hospital or pharmacy, suddenly the moral guilt creates a substantial burden on the moral conscience. How is one different than another?

But there are other things to consider. One of the ways I like to test my agreement or disagreement with a policy or legal standing is to imagine an analogy that involves a position I both agree and disagree with to make sure my principled position is consistent. The ACA has created (at least tried to) a new entitlement for Americans: affordable healthcare. The entitlement is aimed to be universal and consistently available for all Americans despite employment, thus the exchanges and tax credits for self-insured and medium-income, Medicaid expansions for the non-working or working poor, and the regulations for standards of minimum coverage for the employed with coverage.

So let’s imagine an employer that believes in very strict separation of the sexes. Labor laws prohibit this in the workplace, but according to his religion, women should never see male doctors and men should never see female doctors. So under this law, he wants to petition that the coverage his company provides would keep this standard. Is that ok? Should all his employees, even those who do not hold this religious belief and had no idea he held it, be bound to this rule in seeking healthcare?

Some might immediately say here, “Well, the employees don’t HAVE to work for that company. They can go elsewhere if they feel the need to get different health insurance.” Let’s consider that in a few more examples. What about a CEO who comes from a religious background that does not believe blood transfusions and organ transplants are moral? Or a company run by folks that do not believe in vaccinations? Or going further into other universal entitlements, what about companies that do not believe in overtime pay? Or equal wages for women?

We do not think that overtime pay or equal opportunity employment should be held to the whims of employers but should be a benefit to all employees regardless of where they are employed. Why not this universal entitlement? What makes a religious burden against the man who doesn’t think women deserve equal pay any less substantial than the man who doesn’t want to provide insurance that includes IUDs? Why does a janitor at her local neighborhood grocery store need to find out the religious beliefs of the owner regarding vaccinations for her kids but she doesn’t need to worry about whether or not the owners believe overtime pay is religiously immoral? What is the important difference, here?

If I were hired as a clerk for a movie theater, should the owner, who lives 6 states away, dictate how and under what circumstances I am able to get an emergency biopsy of my thyroid because he has a religious issue with it? And if so, why? Because his company contributes to it? As an employee who would pay for it with my paycheck, isn’t that the exact same amount of contribution as paying a monthly premium to an insurance company?

I don’t disagree that this issue is about personal liberty. IT MOST CERTAINLY IS. But we are talking about creating an ambiguous manner of determining a person’s conscientious autonomy to make life-altering decisions. Healthcare is incredibly important. Life’s crises often revolve around this very issue. And we are playing with the notion that a very powerful, very small group of people (business owners) be able to regulate how and under what circumstances the benefit of paid healthcare is allocated. For all Americans, but the poor especially, this will add a whole new level of coercion into the employment process and the decision to seek medical treatment when ill or injured, which is truly a sad and dangerous notion.

Problem #3: Fairies are not real. (You’ll get it in a second.)

Hobby Lobby is not protesting providing all birth control, but only a few forms: ella, Plan B, and the copper IUD. They claim these are abortifacients and therefore against their religion. If you will remember point #1 at the very beginning, we are not allowed, as a government, to judge whether or not their religion dictates a moral burden on the conscience by providing access to these medicines or procedures. (Although we are free to engage one another about it as a dialogical people.)

But the problem here is not whether or not abortifacients are against their religion, but whether or not ella, Plan B, or the copper IUD are, in fact, abortifacients (a substance that induces an abortion – or, at the very least, stops fertilized eggs from being implanted onto the uterine wall).

There was cause to believe, for years, that the reason some of these medicines or devices worked was because they stopped fertilized eggs from being implanted. But a lot of scientific research that has been coming out lately has shown this theory to be false and that the medicines or devices work in ways that are not religiously controversial.

(Some articles here and here about this new research, with links to follow and read yourself if you like.)

So who gets to make a ruling on this? Do we leave it up to the owners of Hobby Lobby to investigate the newest scientific research and determine whether or not that research is trustworthy enough to remove their moral guilt? Do the judges have to weigh the scientific evidence and make the determination whether or not the medicines or devices are, in fact, abortifacients? Who gets to make that determination?

But really here, what do we do with petitions for accommodations and exemptions from law based on scientifically erroneous beliefs that have created an imposition onto the religious conscience that are, in actuality, not really there?

I know this is going to get into absurdity, but bear with me. Imagine a CEO who asks for an exemption for providing reproductive services which test semen samples because he still believes in the homunculus, which means collecting the sample would kill human life. Or what about a businessman who believed that all injections actually put invisible demon fairies into our bloodstream, which caused moral corruption? Or, less absurdly, a company didn’t want to provide vaccinations because they believed vaccines caused Autism, a belief debunked by scientific research for many years now.

I am all for having conversations about moral burdens on the conscience and how we can work around those, but not if we are going to argue about fairies that don’t even really exist, especially if the belief in those fairies restricts another person from having access to healthcare that everyone else can easily make use of.

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That about sums it up. I realize there are many points of contention here, especially the central question of whether or not healthcare, all on its own, should be an entitlement. (I wager only rich people with access to it even question that…) That is another discussion we will have to take up, later. Even still, there are many problems with this case and how it shakes out could have devastating effects on making sure the working poor and average Americans have reliable access to healthcare free of ambiguous restraints and external forms of coercive manipulation.

Religious Liberty: A Primer

There is this Supreme Court case that is making the news, lately. Hobby Lobby, a corporation of hobby stores, is suing for accommodation from the birth control mandate portion of the Affordable Care Act (ACA – colloquially known as Obamacare) under the Religious Freedom Restoration Act of 1993 (RFRA). This is a bit of an important case. If they win the case, it will be the first time that for-profit corporations will be seen as having the “right” to religious liberty in the same way that people and religious non-profits (Church ministries) have. The implications will mean that any business that is for-profit will have legal recourse to be exempt from laws they claim religiously interfere with their business model. This is exceptionally dangerous.

However, for many, this might seem positive, especially if you are sympathetic with those who are against the ACA. This issue has been majorly politicized since the US Conference of Catholic Bishops (USCCB) objected to the original ruling that required religious non-profits (except churches) provide birth control to their employees despite official dogmatic religious objections to birth control. But for me, even though I do have a certain amount of sympathy for someone who has to abide by rules they have moral objections to, this is a dangerous development. But before we can even have a thoughtful conversation about these implications, we should first know the basics of law regarding religious liberty – especially RFRA.

We do not have absolute religious liberty in the United States. We never have. There are limits to that liberty. For instance, no one is allowed to sacrifice another human being, even if for religious reasons. Why? It is not because that religion is “untrue.” It is because the state, our power as a collective, has a vested interest in a person or groups not killing other persons or groups. The official legal language for this is a “Compelling Interest.” We, as the people, create laws when we have an interest in limiting the liberty of some in order to ensure the rights of others. This is not only the way we think about laws concerning religious liberty, but all laws really. You and I are not free to drive as fast as we want because we have a compelling interest to make sure everyone drives at a safe speed.

However, as a country that wants to respect religious conscience, we also don’t want laws to impose burdens to religious conscience unless for very good reasons. Our entire life is based on compromise and we do it every day, most of the time without noticing or with very little stress involved. But most religions have some kind of hierarchical understanding of practices that can be compromised and those that cannot. For instance, Christians share space and live peacefully with those who willfully blaspheme – but to force a Christian to blaspheme would place a burden on their conscience that is beyond just peaceable living. Sometimes, even without ill intent, laws are made that inadvertently cause significant tension on the religious conscience. The official legal language for this is called “Substantial Burden.”

The art of respecting religious liberty and respecting the rule of law is a constant “see-saw” between the compelling interests of the state (us collectively) and the substantial burdens imposed on individual conscience.

RFRA gives us calculus for this see-saw. Here’s how it goes, in the form of a flowchart:

           

Does a law present a “substantial burden” to someone’s ability to practice their religion?

                        If No, pass the law.

                        If Yes, next question.

            Is there a “compelling state interest” to passing the law?

                        If No, then people with a “substantial burden” get special accommodation.

                        If Yes, then pass the law.

The calculus enshrined in law is that compelling state interests always override substantial burdens. The one caveat is that these laws have to apply to everyone. We can’t make laws that target religious practice – like “You may not sacrifice animals. But slaughtering them for food is ok.” Otherwise, the ability of the government to make laws for important reasons always override petitions of religious freedom, EVEN IF they impose substantial burdens.

This is a very important rule. This means that individual conscience ALWAYS comes second to the will of the people to make and enforce laws that are generally applicable and have strong, significantly compelling reasons. Religious liberty, even by our very accommodating standards, is not such a bulletproof legal defense as most people think.

The trick is determining, as a deliberative and discursive people, whether or not we have a compelling interest in removing another person’s liberty to live according to their religious conscience. This isn’t something that should be taken lightly. And most importantly, it should only be done for reasons that we all can reasonably be expected to accept without changing religious beliefs. In other words, we should be diligent in making sure we protect a person’s journey in finding truth and only stop that journey for reasons that have nothing to do with whether or not we believe they have found the correct religious truth.

Do you agree? Please keep in mind this isn’t a conservative vs. liberal split. There are prominent liberals and conservatives on either side of the debate. I, despite my very liberal leanings, find myself agreeing with Justice Antonin Scalia, a firebrand conservative, on this issue.

More to come later this week. Less boring explanations. More fun examples and thought experiments. Stay tuned.