Although scientists are still taking measurements with extremely sensitive instruments, it’s entirely possible the U.S. Supreme Court saved its most outrageous, most objectionable decision until last.
Burwell v. Hobby Lobby Stores, Inc. essentially holds that a “closely held” for-profit corporation has the right to refuse to comply with the Patient Protection and Affordable Care Act’s requirement that companies provide employees with FDA-approved contraception, based on the religious views of its owners. This is the first time the court has recognized such a right, according to dissenting Justice Ruth Bader Ginsburg.
The ruling is based on the Religious Freedom Restoration Act, a 1993 law passed by a near-unanimous majority in Congress, that essentially says government may not burden a person’s rights to freely exercise his religion, and that when a burden is imposed, the government must show it has a good reason for doing so and is using the least intrusive method possible. (BTW, all members of Nevada’s congressional delegation at the time — U.S. Sens. Harry Reid and Richard Bryan, and U.S. Reps. Jim Bilbray and Barbara Vucanovich — voted in favor of the RFPA. All but Vucanovich were Democrats.)
Two companies — craft chain Hobby Lobby and cabinetmaker Conestoga Wood Specialties Corp. — sued to be exempted from providing certain types of contraception, specifically that which prevents a fertilized egg from implanting in the uterus. (This is based on the religious beliefs of the corporate owners that life begins at the moment of conception, and that destroying or preventing a pregnancy thereafter destroys a human life.)
Why is this ruling so bad? Herein, I’ve compiled a few of the most outrageous passages from the majority’s ruling. Their words are in italics.
• By requiring the [families that own Hobby Lobby and Conestoga Wood Specialties, respectively] and their companies to arrange for such [contraceptive] coverage, the HHS mandate demands that they engage in conduct that seriously violates their religious beliefs.
No, it doesn’t. The mandate demands they provide insurance, like most every other company in America. That’s it. If their employees — workers, by the way, who may not share the religious beliefs of the corporate owners — choose to avail themselves of that contraceptive coverage, the owners’ free-exercise rights are no more violated than they are if their tax dollars are used to buy bullets that end up killing innocent people in a firefight on a distant battlefield. The owners have not violated their own beliefs in either case.
Ah, but they argue they have, by paying for the insurance that’s facilitating the purchase of the offending contraception. And, the court majority argues later in the ruling, there’s an alternative: A workaround set up for religious non-profits in which contraceptive coverage is sequestered and the insurance company must pay, but none of the owners’ or employees’ funds are used.
• We do not decide today whether an approach of this type complies with the RFRA for purposes of all religious claims. At a minimum, however, it does not impinge on the plaintiff’s religious beliefs that providing insurance coverage for the contraceptives at issue here violates their religion….
Two things about this. One, let’s hope you’re not doing business with an insurance company that has court-granted free-exercise rights to tell you to go pound sand. Two, if the owners violate their conscience by paying premiums that go to provide contraceptive coverage, are they really off the hook by a simple accounting game? Aren’t they — by the mere act of providing a health-care insurance policy at all setting up a mechanism by which their employees may still access contraceptives? It would seem the only real way to ensure a clean conscience here would be to a.) not offer insurance at all, or b.) offer only an insurance policy that in no way, shape or form offers the offending contraception.
• When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people [associated with the corporation]. For example, extending Fourth Amendment protection to corporations protects the privacy interests of employees and others associated with the company. Protecting corporations from government seizure of property without just compensation protects all those who have a stake in the corporations’ financial well-being. And protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga and [Hobby Lobby sister corporation] Mardel protects the religious liberty of the humans who own and control those companies.
In other words, “corporations are people, my friend!” But only the last sentence in that passage is accurate or honest. What happened, for example, when the Supreme Court weighed the rights of regular people under the Fifth Amendment against the rights of corporations in Kelo v. New London (2005)? The “humans who own and control” big pharma companies got to seize the homes of humans who owned property that just happened to sit in the path of rapacious greed. So let’s not us pretend that the associational rights of humans banding together to form corporations are important here.
• These cases [decided Monday], however, do not involve publicly traded corporations, and it seems unlikely that the sort of corporate giants to which [the Department of Health and Human Services] refers will often assert RFRA claims.
Oh, it seems unlikely does it? Because, as the ruling explains, the likelihood that “unrelated shareholders —including institutional investors with their own set of stakeholders —would agree to run a corporation under the same religious beliefs seems improbable”? Really? It seems corporate shareholders might get religion very quickly if they can figure a way to use the RFRA as a shield to avoid complying with the law. In fact, I think we could be looking at the next Great Awakening!
“God told us to be fruitful and multiply and fill the Earth and have dominion over it. That means we can frak where we want and the EPA can’t stand in the way!”
“Are you familiar with the parable of the worker and his wages? Well, we believe God doesn’t support us paying the minimum wage and damn it, you can’t make us!”
“The Bible clearly says wives must submit to their husbands, so if one of our employees says his wife has to work here for free, who is the U.S. government to contradict Saint Paul?”
But why confine ourselves simply to Christianity? Why not simply invent a new religion tailor made to the needs of a 21st century corporation, in which the sincere religious beliefs of the owners are that government regulations of all kinds are forbidden by God?
Well, the court explained:
• The companies in the cases before us are closely held corporations, each owned and controlled by members of a single family, and no one has disputed the sincerity of their religious beliefs. [Footnote:] To qualify for RFRA’s protection, an asserted belief must be “sincere;” a corporations pretextual assertion of a religious belief in order to obtain an exemption for financial reasons would fail.
This is perhaps the most pernicious part of the RFRA, and the court’s ruling today. How are we to determine the sincerity of a corporate owner’s religious belief? A deposition? Direct and cross examination on the stand? Really? We’re now to live in a country where a government attorney can ask the most personal, penetrating questions of a person about his religion in an official legal forum, and he or she must respond under oath? Is that what Congress contemplated when it passed the law?
The practical reality, of course, is that the courts will give wide deference to any asserted religious belief, as the Supreme Court did with Hobby Lobby today. After the government raised the perfectly legitimate claim that the owners of Hobby Lobby or any other company would not violate their religious beliefs by providing insurance, and that any decisions made about using contraceptives would be up to employees, the court simply said:
• This argument dodges the question that RFRA presents (whether the HHS mandate imposes a substantial burden on the ability of objecting parties to conduct business in accordance with their religious beliefs) and instead addresses a very different question that the federal courts have no business addressing (whether the religious belief asserted in a RFRA case is reasonable).
Arrogating the authority to provide a binding national answer to this religious and philosophical question [whether life begins at conception], HHS and the principal dissent in effect tell the plaintiffs that their beliefs are flawed. For good reason, we have repeatedly refused to take such a step. … Similarly, in these cases, the [corporate owners] Hahns and the Greens and their companies sincerely believe that providing the insurance coverage demanded by the HHS regulations lies on the forbidden side of the line, and it is not for us to say that their religious beliefs are mistaken or insubstantial. Instead, our ‘narrow function in this context is to determine’ whether the line drawn reflects ‘an honest conviction’ and there is no dispute that it does.”
(A note here: The court already has determined, for legal purposes, when life begins, in Roe v. Wade (1973), and justices drew that line long after conception.)
But who is to say that your brand-new church really does believe paying taxes or following environmental regulations or paying sub-minimum wage or discriminating on the basis of gender is wrong? Not the Supreme Court! Or, might they? Because elsewhere in the ruling, justices said that:
• Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fail if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.
In other words, the state can tell you to take your religion and shove it when it comes to stopping smallpox or measles, but when it comes to preventing unplanned pregnancy, well, chicks are on their own. Nice, Supreme Court majority. Nice.
The government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.
(The prohibitions on racial discrimination that the Supreme Court has left remaining, you mean?) But this is a totally awesome bit o’ irony: It means a woman who happens to be a minority has the absolute right to be hired into a job even if a corporate owners religious beliefs are violated by that hiring, but once employed, has absolutely no right to contraception in her health care coverage because that same corporate owner’s religious beliefs prohibit that. Oh, Roberts Court. You have outdone yourself this time!
Lest you think you’re getting out of taxes by forming a religion based on the writings of, say, Ayn Rand, think again!
• …the fundamental point would be that there simply is no less restrictive alternative to the categorical requirement to pay taxes. Because of the enormous variety of government expenditures funded by tax dollars, allowing taxpayers to withhold a portion of their tax obligations on religious grounds would lead to chaos.
So, let me get this straight: If I — reading repeated and explicit passages of the New Testament — come to believe that I should love my enemies, pray for those who hate me, beat swords into plowshares, turn the other cheek and, to the extent that lies within me, live at peace with all men, and thus object to paying taxes that purchase drones that are used to kill people overseas, I am … totally out of luck. But if I — relying on more obscure and debatable passages of the Bible — declare I’m against providing insurance that somebody might use to pay for certain types of contraception, I win the Supreme Court Lottery? Really?
Finally, the court addressed at least one other method of accommodation that would preserve the religious rights of Hobby Lobby, Conestoga and other, similarly situated corporations:
• The most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any woman who are unable to obtain them under their health-insurance policies due to their employers religious objections.
Totally great idea! And we could accommodate religious objections to minimum wage laws by having the government make up the difference between minimum wage and what religiously shielded folks were willing to pay out, too, right? We could solve the gender pay gap this way, I bet! And all out-of-wedlock pregnancies would be fully covered, too, right? This could be the solution!
In fact, why don’t we just have the government pay for all health care? That way, religious people wouldn’t have to confront these dilemmas. If they objected to paying taxes because the government covered abortions or contraception, the Supreme Court would simply say “allowing taxpayers to withhold a portion of their tax obligations on religious grounds would lead to chaos,” right? I mean, there’s no way the Roberts Court would reject it’s own idea of “let the government pay” when applied to the whole of the health-care system, right?
Anybody else down for single-payer? If not for the nation and its people, do it for God?