Dissent Of The Day

A reader writes:

You continue to double down on Hobby Lobby – that it is a case of limited scope that has little bearing beyond itself; that this contraception exemption is a statutory one, and not a Constitutional issue; that liberals are seriously over-reacting. Where are the liberals’ liberal values, you ask, in regards to accommodating religious rights with respect to (the new) majoritarian rule.

I sincerely respect every person’s religious rights – every PERSON’s religious rights. Think Supreme Court Rules In Favor Of Hobby Lobby In ACA Contraception Caseabout your own personal relationship with God and what that means to you. Can you honestly then state that a corporation can have sincerely-held religious beliefs? Can it go to church or receive the sacraments? Can it be a conscientious objector? Does it have a soul? Of course not. The Court already decided in Citizens United that a corporation can have free speech rights. Now it can have religious rights. What other rights that formerly inhered only in individuals can a corporation possess? Maybe the right to keep and bear arms?

You say, “A few organizations and closely-held companies want to be exempted for religious reasons.” First, you don’t know yet that it’s just a few, now that the gates are open. Secondly, as you already know, 85–90% of corporations fit the “closely-held” description, and they don’t necessarily employ just a few workers. (Hobby Lobby has 561 stores and 23,000 employees as of 2012.) I’m sorry, but once you stipulate that that many corporations can have religious rights, that is a constitutional question. And that’s how this SCOTUS works – by building on its own wrong-headed precedent. Two decisions that confer personhood on a legal entity make the third decision a lot easier.

And if this is a narrow decision by the Court, how is it that it may already be having adverse effects? Just one day later, we find out that the decision really does include all ACA-covered contraceptives, not just the four that Hobby Lobby doesn’t “believe” in. And the next day, this: The President’s pending executive order concerning LGBT discrimination and federal contractors is coming under closer scrutiny from faith leaders. How long might it be before some of these companies will want to opt out of non-discrimination against gay people because of their sincerely-held religious beliefs.

I’m grateful for this eloquent dissent – and many others. The conversation we’ve had has changed my mind on a few things, and clarified it on a few others. So here are some thoughts in response, after mulling this over some more.

The first is on the question of religious freedom. And I agree with my reader on the core point. I do not believe that even a closely held religiously informed for-profit corporation has a soul. In fact, the desire for profit is a very strange thing for a religious organization to be involved in at all. Whatever the heretical claims of the Prosperity Gospel, there is no serious Christian defense of making money as your primary purpose – and a for-profit company is, by definition, primarily about making money. I think that automatically excludes it from the religious principle. You pick either God or Mammon. Ayn Rand, for the umpteenth time, is an enemy of Christianity, not an ally.

My own view of a religious organization is one primarily devoted to religious ritual and service. Some non-profit charities would be included, but no for-profit companies would. In other words, just to be clear, I would have voted for the minority if I were a Supreme Court Justice on those grounds alone. Norm Ornstein has a great post on this principle and I share almost all his conclusions.

Equally, I think it’s fair to say that the sincerity of the religious motives behind Hobby Lobby is a little dodgy. They provided – voluntarily – the very allegedly abortifacient contraceptives in their own health insurance coverage before the ACA came into effect. How does that square with their claim to be stricken by their conscience on the question now that Obamacare is mandating it? Hobby Lobby also has investments in companies that make contraceptives. Again, their squeamishness now reeks of opportunistic politics, not sincerely held religious conviction.

I’m also struck, as I wrote yesterday, about the very Catholic-centric view of religion this ruling implies.

One wonders, as Ginsburg wrote in her dissent, if the Justices would apply these sentiments to non-Christian religions. I noted the burqa ban in France as a distant analogy, but Steve Coll goes one further and imagines a fanatical Muslim corporation asking for the equivalent rights, as in, say, exemptions from vaccines. And here is where Alito is at his weakest. His only proactive response to this is to assume that there will not be “a flood of religious objections regarding a wide variety of medical procedures and drugs, such as vaccinations and blood transfusions.” As Coll, rather drily observes: “Why not?” The religious convictions of many Muslims go far deeper than most evangelical Protestants and devout Catholics.

But here’s where I stick with my point about perspective. In the last few years, America has crossed the Rubicon of universal health insurance. In that new law, contraception coverage was, for the first time, mandated for anyone with health insurance. That strikes me as a huge gain – not just for those women who could not afford insurance before but for those women with insurance, where contraceptive coverage could be at the whim of employers. And when government mandates something, it will get always get some petitions for exemptions. We’ll see in due course – and the Dish will keep close tabs on – how big a loophole it turns out to be. But if the administration can deploy the fix used for religious organizations proper – getting insurance companies to provide the contraception and then get re-imbursed by the government (see here for the difficulties involved), then we could easily have a win-win. Everyone gets guaranteed contraception coverage and a few religious closely-held corporations can keep their hands “clean”.

And let me suggest something else about toleration of these religiously-based companies. It will hurt them in the long run. What Hobby Lobby has now announced to the world is that women who use contraception shouldn’t work there if they don’t want to live in a hostile environment, and no one should buy goods there if they object to their policy targeting women’s healthcare – and women’s alone – for discrimination. A company that behaves this way is a company that will lose customers and potential employees. The positive way to respond to this is to stop shopping there and to seek employment elsewhere. You can even boycott if you wish. Since the vast majority of women, including overwhelming majorities of Catholic women, don’t agree with the ludicrous case against contraception, it seems to me that this kind of policy will not be in the interests of any company trying to make a profit. That’s how a free society works.

One final thing: Can I respond to the emailers who say the only reason I am not too alarmed by the Hobby Lobby ruling is because I’m a man, and not a woman? I sure hope that isn’t the case. I’ve long been a libertarian type of conservative, and have long had much higher tolerance for people doing bad things in a free society than some others. So to take the very personal question of homosexuality, I have defended the right of the Boy Scouts to discriminate against gays, I have defended the right of the Saint Patrick’s Day Parade to exclude gays, I oppose hate crime laws protecting gays, and I have even theoretically opposed anti-discrimination laws in employment for gay people (and plenty others). This does not mean that I approve of any of those things – I despise them all, in fact. But in a free society, religious fanatics and bigots have rights as well. I would not have given Hobby Lobby what SCOTUS just did, but I sympathize with the principle involved, and prefer a limited government in a free society over a powerful government in a more just one. And a free society must mean religious freedom sometimes in contravention of established norms. That’s what freedom requires. And we are a stronger country for it.

(Photo by Scott Olson/Getty Images)