Posted on 11/28/2013 9:49:22 AM PST by ReligiousLibertyTV
By Jason Hines -
Yesterday the Supreme Court decided to hear two cases regarding the contraception mandate in the Affordable Care Act. The interesting aspect of these cases is that the companies involved (Hobby Lobby being the more famous of the two) are for profit companies whose owners are committed Christians who believe that certain forms of contraception covered by the mandate are against their religious beliefs and that they should not be paying to provide them for their customers.
I think now is as good a time as any to point out the hypocrisy in the fact that Hobby Lobby was providing for the contraceptives they now are against and that their only problem really seems to be that the government is now obligating them to do what they were already doing.
Unfortunately the only reason why a case like this is now plausible is because the Supreme Court has opened the door to this type of challenge with their decision in Citizens United. One of the first things that you learn in corporations law is the legal fiction that corporations are “people.” One of the main reasons why people create corporations is so that they as the owners/shareholders can be isolated from the corporation itself. But if corporations are people or individuals, then it begs the question of whether they have the same rights as the rest of real individuals. What Citizens United did was expand the notion of free speech rights for corporations. So the argument goes - If corporations can have First Amendment free speech rights, why can’t they have First Amendment free exercise of religion rights as well?
But it seems to me that the analogies don’t really line up. The good folks at Hobby Lobby (and any other for-profit corporation) can make at least a plausible argument that they need free speech rights. After all, things may occur in America where a corporation would need a voice in the political realm. Support for one candidate or another could have a significant effect on the ability of a corporation to conduct its business. But exactly what religious rights could a corporation have that would be akin to what Hobby Lobby is asking for? After all, I as a citizen do not have the free exercise right to burden other people’s healthcare. I’m not sure it makes sense to give that right to corporations just because they have employees. Furthermore, while critics of this position would say that employees could just find another job, is this really the type of stratification we want as a society? Does this not amount to a de facto religiously discriminatory hiring practice? I think it comes dangerously close to being exactly that. Now if Hobby Lobby as a corporation wants to have free exercise rights, I’m actually all for that. If the Hobby Lobby Corporation doesn’t want to use contraception when it has sex, that is well within their rights. What their employees do, however, is none of their business.
The other aspect of this case that makes it a close case is the presence of the Religious Freedom Restoration Act, which governs activity by the federal government. When the federal government enacts a law, it must make sure that it does not substantially burden the free exercise right of any individual. If the Hobby Lobby Corporation is an individual for the purpose of free exercise rights, then this law would apply to them. We should note though, that the standard in this case is whether there is a substantial burden. It is a fallacy to argue that any religious burden is unjustified. I am willing to concede that Hobby Lobby and there shareholders’ religious freedom is being burdened. I just don’t think that the burden is enough to justify a religious exemption. As Americans United has argued in other cases, one of the main issues here is that the effect on the religious practice of the shareholders is so attenuated. It is primarily attenuated by the fact that the shareholders are protected by the legal fiction of Hobby Lobby as an “individual.” Second, I think Hobby Lobby is confused as to what they are actually funding. Hobby Lobby is not funding birth control. What they are doing is giving their employees an insurance plan as part of the compensation package for the service their employees provide to the corporation. Those plans include an option for the employee to use birth control. It is then up to the employee to decide whether they will use birth control or not. This seems very similar to me to Hobby Lobby attempting to argue that they will deduct the cost of birth control from their employees' salary so that employees can’t buy birth control with the salary they are given. The health insurance does not belong to Hobby Lobby, it belongs to the employees.
In a recent interview, Harvard Law professor Mark Tushnet surmised that the Supreme Court’s holding in this case, if it rules in Hobby Lobby’s favor would be extremely narrow and would not include the avalanche of potential claims for-profit employers could then make. As much as I despise slippery slope arguments and would like to agree with him. I think Professor Tushnet is wrong here. If Hobby Lobby can remove contraception from employees’ health care, why can’t Jehovah’s Witnesses remove blood transfusions? Why can’t Hobby Lobby remove HIV/AIDS treatment for single/LGBT employees? There are a lot more examples like this and I refer you to this primer from the Center for American Progress. The examples they give are reasonable. I like to think of the unreasonable examples that could be based on race or age. The Court could certainly just say that this only applies to the contraception mandate in future cases, but I don’t know what the legal principle would be that the Court would use to distinguish between those future cases and the case we have now.
I want to return to the idea of the attenuated nature of Hobby Lobby’s free exercise claim because I think it also shed some light on why I think they’re wrong not only legally, but biblically. I’m not here to argue with them about whether the Bible outlaws the use of contraception or “abortifacients.” (I put abortifacients in quotes because I don’t think what they are calling abortifacients actually are such.) We can agree to disagree on that point. However, Hobby Lobby seriously misunderstands what exactly they’re doing here. Once again, they are not providing contraception. They are providing an option to have contraception, which the employee will then decide to either use or not use. At best they are providing an option to commit sin, not actually committing the sin themselves, or even co-signing on the decisions their employees will make. I seem to recall someone else who provides an option to sin without condoning it. That’s right – Jesus does! He provided all of with life, even though he knew we were all born in sin and shaped in iniquity (Ps. 51:5) He provides me with the means financially to survive although I will often use that money on things He does not want me to have, and in ways that He would not approve. How great it is to have a loving God who gives me the freedom to make my own decisions and gives me the tools to make the right ones instead of a God who tries to coerce me into His righteousness by burdening my decisions any way He can. Now if we can just get His followers to do the same….
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Jason Hines, an attorney, is completing his PhD in church-state studies at Baylor University.
The actual point of the ObamaCare mandate is to force employers to pay for something which they disapprove of. And whoso pays for something, promotes that thing, willy nilly.
This is far from the least intrusive means to the putative end; the very intention of the mandate is to violate the conscience of those it constrains.
The “Debate” is not about contraceptives, it is about liberty! It is about stopping busy body individuals dictating how you must live your lives. How YOU must bend to their will. Or suffer the consequences. I say no! RESIST Evil!
Good lord.
The liberals, perverts, libertines all---they are saying,
"You must stay out of my bedroom, but you must be forced to pay for what I do in my bedroom, and you must pay for the means to eliminate whatever consequences occur from my bedroom activities that I don't like. . . but remember, you are not allowed to judge what takes place in my bedroom."
And the First Amendment does not limit its protection of religious liberty to persons anyway: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." That means "free exercise" by persons AND by corporations, in whatever degree a corporation can be said to practice any values.
The same people who condemn corporations as "evil" will not admit that corporations can be "good."
There is no legal reason whatsoever that a corporation cannot claim the same constitutional legal protections as an individual.
Wrong. Obamacare requires people to pay for abortificients.
FWIW, I used to know some of the faculty at Baylor pretty well, and visited there fairly often for conferences and other reasons. I’m afraid I got the impression that Baylor is no longer a truly Christian university—especially at the top levels. It’s kind of the Notre Dame of Baptist universities.
Hines is an idiot who doesn’t understand the difference between “choose to provides” and “must provide”.
“Liberty For Me But Not For Thee”
Love the cultists in spite of their hypocrisies....
Well, child sacrifice is the abomination that causes desolation, so even God has a blood red line we can not cross without His judgment. He will not forgive a nation under that one circumstance.
“However, the LORD did not turn from the fierceness of His great wrath with which His anger burned against Judah, because of all the provocations with which Manasseh had provoked Him. And the LORD said, “I will remove Judah also from My sight, as I have removed Israel. And I will cast off Jerusalem, this city which I have chosen, and the temple (house) of which I said, ‘My name shall be there’.”
“Surely at the command (mouth) of the LORD it came upon Judah, to remove them from His sight because of the sins of Manasseh, according to all that he had done, and also for the innocent blood which he shed, for he filled Jerusalem with innocent blood; AND THE LORD WOULD NOT FORGIVE.” (All caps mine) 2 Kings 23: 26 & 27 and 24: 3 & 4
A person does not and cannot surrender or relinquish his or her fundamental human rights by choosing to become a member of or participant in a corporation. I would further contend that it is not within my power to reject or abrogate my rights, inasmuch as they are inherent to my personhood. Neither can a government abrogate those rights. Government can either acknowledge their existential reality and defend them, or it can arbitrarily and improperly declare then non-existent and of no account - - and violate them.
hmmmm...That's almost exactly what Slutz Inc. founder Sandra Fluke said the other day
Is this one of the new Talking Points from Obama Central?
Many if not most main line Christian churches do make a distinction between birth control and abortificients. The owners of Hobby Lobby reject abortificients.
The Catholic church has a different and valid argument of their own.
As has already been pointed out though, the real argument shouldn't be about either but about freedom from government tyranny.
The problem is the federal gov’t should not dictate a one-size-fits-all health insurance plan.
That is the removal of choice from the citizens.
I suspect Mr. Hines graduated at the bottom of his class.
Hines is an idiot who doesn’t understand the difference between “choose to provides” and “must provide”.
I get the impression that "ReligiousLibertyTV" and "Hines" are one and the same.
Is that true ReligiousLibertyTV?
I'm in a different reality from the current situation. I have no idea why insurance would even cover medications or anything else that are choices which an individual makes.
Dear Mr. Hines,
Please review the historical saying: “Give me liberty or give me death.”
You and your leftist friends have declared war on people of conscience. It really does not matter whether you agree or disagree with contraception. The bottom line is you are starting a WAR.
Let me be clear. This is not figurative language. Obamacare is going to kill people. Not figuratively. Literally.
And there are many people who are not willing to live under tyranny and are not afraid of dying.
So you need to ask yourself, Mr. Hines, “Is your right to free contraception worth Revolution 2?”
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