Mandate Debate: Why I Cannot Support Hobby Lobby’s “Religious Freedom” Claim

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….

Jason Hines, an attorney, is completing his PhD in church-state studies at Baylor University.

Mr. Hines, you might be right about Mr. Green's religious argument against Obamacare being a strawman (my word). But regardless of Mr. Green's objections to Obamacare, it remains that activist justices wrongly ignored the following excerpts from previous case opinions when they gave the green light to Obamacare. These excerpts clearly indicate that the states have never delegated to Congress, via the Constitution, the specific power to regulate, tax and spend for public healthcare purposes.

"State inspection laws, health laws, and laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c. are not within the power granted to Congress. (emphases added)" --Gibbons v. Ogden, 1824.

As a side note concerning the excerpt above, consider that it clarifies that Congress has no business sticking its big nose into intrastate commerse. So the statement basically contradicts the interpretation of Congress's Commerce Clause powers by FDR's activist justices in Wickard v. Filburn. Such a contradiction is important because former Speaker Pelosi had referenced the so-called "wide" powers that the Commerce Clause gave to Congress to help justify Obamacare.

The above statement also indicates that Congress doesn't have the constitutonal authority to address public healthcare issues any more than it does to make laws prohibited by the 1st Amendment.

In the next excerpt, Justice John Marshall had clarified in general that Congress cannot lay taxes in the name of state power issues, essentially any issue which Congress cannot justify under its Section 8-limited powers.

"Congress is not empowered to tax for those purposes which are within the exclusive province of the States." --Justice John Marshall, Gibbons v. Ogden, 1824.

So not only did the Court clarify in Gibbons that Congress had no power to address public healthcare issues, the Court also clarified that Congress cannot lay taxes in the name of powers that it does not have. So regardless that Justice Roberts referenced Gibbons v. Ogden in the Obamacare opinion to help justify his support for Obamacare, I question why he "overlooked" key statements in Gibbons which reasonably contradict his support for Obamacare.

In the next excerpt, Justice Barbour expanded the wording concerning healthcare in Gibbons v. Ogden.

"Inspection laws, quarantine laws, health laws of every description (emphasis added), as well as laws for regulating the internal commerce of a state and those which respect turnpike roads, ferries, &c., are component parts of this mass." --Justice Barbour, New York v. Miln, 1837.

The last case opinion excerpt clarifies that Congress obviously has no power to regulate intrastate healthcare, obvious to everybody except evidently to Obama, Reid and Pelosi. Note that the Linder opinion was written roughly a decade before Constitution-ignoring socialist FDR took office.

“Direct control of medical practice in the states is obviously (emphasis added) beyond the power of Congress.” –Linder v. United States, 1925.

In fact, former Rep. Jessie Jackson Jr. had repeatedly introduced a resolution for Congress to propose a healthcare amendment to the states for ratification as evidenced by the following.

Proposing an amendment to the Constitution of the United States regarding the right of citizens of the United States to health care of equal high quality. --H. J. Res. 30.

Unfortunately, the Democratic-controlled House ignored Rep. Jackson Jr.'s proposal and passed Obamacare without the required consent of the Constitution's Article V majority.

As a side note to Rep. Jackson Jr.'s resolution, I have never been able to figure out why FDR hadn't done the following before leading Congress to establish his social spending programs. Given his great popularity, FDR should have first encouraged Congress to petition the states to ratify amendments which would have given Congress the constitutional authority that it needed to establish FDR's New Deal programs. Instead, FDR made a fool out of himself by trying to stack the Supreme Court to force support for his programs, as if he didn't understand or respect the federal government's constitutionally limited powers and the Constitution's amendment process.

Getting back to "DC Follies" concerning Obamacare, at least one month before former Speaker Pelosi had irresponsibly rammed Obamacare though the House, Judge Andrew Napolitan had read Congress's constitutonal Article I, Section 8-limited powers, clarifying that healthcare was not listed among those delegated powers.

Judge Napolitano & the Constitution

Given that Constitution-ignoring Demorcats wrongly established Obamacare outside the framework of the Constitution, I think that Mr. Green should expose activist justices by arguing the material above in addition to arguing his constitutional protections. But like many low-information patriots, I suspect that Mr. Green was probably never taught about Congress's Section 8-limited powers. And before I forget, here is my Supreme Court-issued "license" to make sense out of all of this stuff.

"3. The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning; where the intention is clear, there is no room for construction and no excuse for interpolation or addition." --United States v. Sprague, 1931.

Finally, with all due respect to you and your profession Mr. Hines, given the remote possibility that you are not familiar with the material presented above, do you mind mentioning what students are being taught in law schools these days concerning the federal government's constitutionally limited powers?

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