Monday, June 30, 2014

A Good Day for Religious Freedom

My plans for today’s post went out the window this morning when I learned the Supreme Court had ruled, at last, on the Hobby Lobby case. Big news!

Hobby Lobby story, photo from here
It is a 5-4 decision in favor of Hobby Lobby, ruled narrowly. In short, closely held companies, such as Hobby Lobby and Conestoga Woods, cannot be forced to pay for employees’ contraceptive methods that, in their religious view, terminate life. [Note: the case is now referred to as Burwell v. Hobby Lobby, rather than Sibelius v. Hobby Lobby; Burwell is the newly appointed head of Health and Human Services.]
These companies already pay for (and have all along) insurance coverage for many methods of birth control, but refused to pay for four specific methods that are abortifacients (terminate a fertilized egg). They will still pay for coverage of those other contraceptives. But they will not be forced to go against religious beliefs to pay for these four specific ones.
The ruling is narrow, because only closely held or family owned companies get the exception. Larger, publicly held corporations are not granted the exception—even if every member of the board has strong religious beliefs and they have always directed the corporation according to those beliefs.
The ruling is further narrowed, because it only addresses this particular religious conflict in the ACA; it does not necessarily apply to other religious conflicts with other laws.
Despite the narrowness, I accept this as a victory for religious freedom. Also despite the narrowness, Ruth Bader Ginsburg’s dissent claims it is overly expansive, and brings on a flood of so-called religious belief conflicts, which she will find annoying. She says,
Reading the Act expansively, as the Court does, raises a host of “Me, too” questions. Can an employer in business for profit opt out of coverage for blood transfusions, vaccinations, antidepressants, or medications derived from pigs, based on the employer’s sincerely held religious beliefs opposing those medical practices.
The dissent seems to be really miffed that a for-profit entity can be considered to have religious beliefs and/or rights. In other words, the concept that was defeated in this 5-4 ruling is whether trying to make a living in the marketplace means you forfeit your religious freedom rights.
Ginsburg, et al., ought to read the relevant religious beginning of the First Amendment—again:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.
It doesn’t add the proviso, “unless and until a citizen chooses to participate in for-profit enterprise.” Ginsburg’s assertion that such a proviso is implied separates her from those who read and understand the law. She identifies with those who decide the law is what they believe it should be.
That battle goes on, despite today’s victory.
The ruling is based on the RFRA law; i.e., the Religious Freedom Restoration Act. It outlines specific limits the government may not cross. According to RFRA, government may have a compelling interest that could override a person’s religious belief. Alito’s majority opinion included reference to these closely held companies as “persons”:
As we will show, Congress provided protection for people like the Hahns and Greens by employing a familiar legal fiction: It included corporations within RFRA’s definition of “persons.” But it is important to keep in mind that the purpose of this fiction is to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends.
Government must not only show that the interest is compelling; it must show that the law is the least restrictive approach. Pushing aside the significant religious issues, Ginsburg claimed that paying $26 million or so in fines wasn’t an undue burden, since it’s only approximately equivalent to the total costs of providing health insurance (to be clear, the fines would be on top of the costs of providing insurance). However, Alito and Kennedy both pointed out that government has already found ways to accommodate organizations that qualify as religious non-profits, and those accommodations could be used to accommodate these for-profit organizations.
So today’s ruling pointed out that having religious people go against their beliefs to pay for insurance coverage of those additional four “birth control” methods was not the least restrictive approach.
The compelling government interest this is compared to is racial discrimination. The court says, "The Government has a compelling interest in providing equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal." So this ruling will not be expanded to include this issue unrelated to the ACA, so Ginsburg's fear is unfounded.
The Court fell short today of ruling whether the ACA itself violates the First Amendment. That question came up in the SCOTUS Live Blog. Since this ruling is limited to following RFRA, if RFRA were repealed (or exempted for the ACA), would that then reverse the ruling currently in Hobby Lobby’s favor?  Under those speculative conditions, the Court would eventually have to rule whether the ACA itself violates the First Amendment.
One thing about this Roberts Court, every time it rules, relating to Obamacare especially, it rules as narrowly as possible, so that little can be made of the ruling beyond the specific case. There’s some value to that. Still—we would not be in this mess if Roberts had simply ruled logically that forcing American citizens to make a purchase the government prescribes is beyond the powers granted to a limited federal government.
I believe there is still plenty of reason to hope we can get rid of Obamacare in its entirety. At least today’s ruling incrementally helped, rather than hindered, the goals of free American citizens.
Want to read more on this case? The first three are posts I wrote previously. The others are pieces I came across today.
·         Corporate Religious Freedom, 12-13-2013
·         Essential Religious Freedom, 2-6-2014
·         Fractious Fractional Argument, 3-24-2014
·         NPR report
·         IJ Review report
·         Buck Sexton on Glenn Beck Radio Monday morning
·         ACLJ (American Center for Law and Justice) report
·         SCOTUS Blog analysis by Lyle Denniston

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