Case Studies on the Sphere

The Supreme Court decisions have kept me thinking. We could avoid the knife-edge possibility of catastrophe for our civil society by following the principles of freedom, prosperity, and civilization. So I thought I’d take a look at the collection of cases related to religious freedom and the Obamacare mandate. We’ll start with a quick review of the principles required for being north on the Spherical Model, mainly in relation to federal government. 

Supreme Court
2013 photo from NPR

Political Sphere:  Following the principles leads to freedom—the northern hemisphere.

·         Is the policy being debated something that an individual has the God-given right to do, and therefore has the right to delegate to government?

·         Does the policy infringe in any way on the rights enumerated in the Bill of Rights?

·         Is the policy a proper role of government; i.e., some aspect of protection (including defense, protection from interstate crime, enabling international and interstate commerce, standardized weights and measures and currency, the judiciary that guarantees the protective laws) as enumerated in the Constitution? 

Economic Sphere: Following the principles leads to prosperity—the northern hemisphere.

·        Separate God-given rights from privileges, or wants.

o   God grants rights to all individuals, regardless of government. Government doesn’t grant rights.

o   We are all born naked, impoverished, and inexperienced—conditions we overcome by growth, hard work, and gaining in expertise.

o   We are born with the right to life, the right to live free (not enslaved), and the right to pursue our own path to overcome the naked impoverished state.

·        The person who earns the money gets to decide how to spend it.

·        There will be those who are unable to care for themselves to overcome their naked impoverished state; philanthropy must fill this need, not government.

Social Sphere: Following the principles leads to civilization—the northern hemisphere.

·        Every civilized society is a religious society.

o   This absolutely does not mean state-sponsored religion or lack of religious freedom, but the opposite.

o   Freedom of religion is essential, and the flourishing of religion must be encouraged.

o   The required religious beliefs include the essence of the Ten Commandments:

§  Honor God, who has granted us our lives and our rights.

§  Honor parents (honor family).

§  Do not murder (value life).

§  Do not have sex outside of marriage (preserve family integrity).

§  Do not steal (value property rights).

§  Do not lie.

§  Do not covet (i.e., want what belongs to someone else, which is a precursor to theft).

§  When wrong is done, a wrongdoer must confess and make restitution in order to restore his place in civilization.

·        Family is the basic unit of civilized society.

o   Family perpetuates life and passes on the principles of civilization, freedom, and prosperity.

o   Family integrity must be protected by society, including laws.

o   Marriage is an essential societal good.

§  Sex outside of marriage is always wrong.

§  Exceptions must be rare and repented/repaired. 

That’s a lot to hold in your mind all at once. But you can see that the three spheres interrelate. If a policy violates freedom, it will lead toward loss of prosperity and decay of civilization toward savagery. When a person claims to be an economic conservative but not a social conservative, they are revealing their ignorance of how those social principles are essential for economic prosperity and freedom. 

So, now, let’s relate these to the recent and upcoming SCOTUS rulings.  

The Hobby Lobby/Conestoga Woods decision came down the last of June. The Court ruled that RFRA applied (Religious Freedom Restoration Act). This was important. RFRA says that, if government is to breach the religious freedom of someone, it must have a compelling reason (something related to protection of life, liberty, and property of Americans that could be affected), and also must show that they have taken the least invasive approach. 

The Court didn’t deal with whether the government had a compelling reason, because it was disqualified by failing on the “least invasive” approach. The government had already given exemptions and accommodations to millions, for both political and religious reasons. So why not for these organizations? 

That was the sum total of the ruling. It didn’t decide the “accommodations” being considered in dozens of other lawsuits were appropriate; it only ruled that, since there are other options, burdening religious people was not acceptable. 

Over the weekend, July 5^th, you may have heard the additional kerfuffle coming from the Court. The majority ruled to offer a stay to Wheaton College, a religious affiliated organization that has refused to accept the “accommodation.” The three female members of the Court, all liberals, railed against the majority—with vitriol, calling them liars. The phrase “weeping and wailing and gnashing of teeth” [Matthew 13:42] should come to mind. While members of the Court consistently disagree, this failure of congeniality is remarkable. 

Meanwhile, Senate Majority Leader Harry Reid has tried to fast-track legislation to undo the recently sustained RFRA law. He says, because “five white men” shouldn’t have the power to deprive women of their health care. Now, that’s a little insane in a number of ways. First, he just called Justice Clarence Thomas white. Second, the ruling deprived exactly zero women of health care. It simply allowed Hobby Lobby, Conestoga Woods, and related plaintiffs to be able to refuse paying for the 4 forms of birth control they consider as taking human life—abortifacients. The Court acknowledged that government could find other ways to provide those things. Even without government, all of those things are available, at relatively low cost, to consumers without any need for insurance or payment, mostly over-the-counter without even a doctor’s prescription.  

So why the emotionalism? Because they realized they lost what the whole Obamacare business is about—the power of government to impose its rule over the will of the people. 

Hugh Hewitt had a couple of good interviews this week with Alliance Defending Freedom attorneys, who have been involved in many of these cases. In Wednesday’s interview with Alan Sears, Hewitt asked about the over-the-top response. And Sears answered: 

They realized they had lost. This is about forcing other people to deny their conscience. Our conscience, a well-formed conscience doesn’t have an option or a choice on how it responds to these kind of decisions. People of faith, of conscience, cannot comply. You mentioned Bonhoeffer. There was a line which he could not cross. Time and again we’ve seen, through cultures, and time and place, where people of faith could not cross certain lines. In this case it’s, once again, it’s being asked to take just a little dip of incense, drop it in the lamp to tell Caesar that he is lord. And I think that’s what really led the dissent here. It’s that they did not have five votes to deny people their conscience. 

There was an additional part of the discussion about the miraculous David v. Goliath win, similar to what I wrote about Monday.

Hugh Hewitt: …the size of the ACLU, the size of these other groups… 

Alan Sears: The size of the Obama justice department. I mean, one of the things that’s just absolutely amazing to me, because of the, quite frankly, the prayers, the faith, the support and the financial support. We have gone, as we talked about earlier, just on the HHS mandate for a group of, more than this many plaintiffs, but gathered into 19 different lawsuits, we’re 19 and zip. 19 to 0 against the Eric Holder Department of Justice, against the White House, against the Department of Health and Human Services. These are gigantic operations. DOJ is the largest law firm in the world. 

That’s something to notice: a score of 19 to zero. We have to be vigilant against Goliaths the size of this DOJ and White House combination. Still, it’s heartening to know how many times, so far, right has prevailed. 

In an earlier Hugh Hewitt interview with ADF attorney David Cortman, Cortman details the Wheaton issue, about the refusal to accept the “accommodation.” 

[T]he form that the government has you sign is a specific legal form that amends your contract with the insurance company. So while they’re saying, “Oh, yeah, we’re keeping you out of this; all you’re doing is telling us that you have a religious objection,” what they’re doing is saying, “Give me your authority, company or family, give me your sole authority, and sign it over to this other person so that we can actually include these items in your plan without you.” So that’s the problem with this accommodation. It’s not taking you out of the picture. It’s taking your authority and granting it to someone else, which makes you complicit in the abortion evil that you believed in the first place. 

David Cortman later asks a pertinent question:  

First of all, why did the government even pick this fight? You know you’re forcing people who have these well-known objections who’ve carried them forever, forcing people to fund abortion-inducing drugs. I mean, that’s incredible for a government to be able to do, and then turn around and say no, no, everything’s fine, just look the other way.

It is incredible. Why would the government refuse to offer an exemption to any but actual churches (which they had to be pressed to do)? And why would they then offer “accommodations” only to religious non-profits with objections—while the “accommodation” is still causing the non-profits to consent to something against their conscience? And why did they refuse any kind of a way out for religious for-profit business owners?  

They’re wrong on every count, according to the Court. But why wasn’t it self-evident to this administration? Because they do not sustain liberty; they seek tyranny. That is what Obama meant by transforming America. 

Let’s briefly go through the exercise of measuring the policies against the Spherical Model. 

·        We do not have the natural right to force our neighbor to pay for something we don’t have. That would be theft. We therefore can’t grant that power to our government. So, we cannot grant government the power to force anyone to pay for someone else’s contraceptives or abortifacients.

·        We are born with the right to freedom of religion. It is the first right enumerated in the Bill of Rights. Refusing to allow a person to live according to his own conscience is to enslave that person even more than physically imprisoning him would do. It’s an attempt to enslave his heart and mind.

·        At some point the government will have to “prove” that providing free contraceptives and abortifacients is a compelling interest; it has not yet done so. Whatever the Court eventually rules, forcing people to buy a product, let alone forcing them to buy someone else’s product, is never going to be a proper role of government.

·        Any attempt to control how people spend their money will lead to less prosperity, never to greater prosperity.

·        Claiming that providing contraceptives and abortifacients is equivalent to protecting life and liberty is diametrically opposed to civilization.

o   The government is claiming that sex outside of marriage—and sex without consequences within or without marriage—is a human right and public good. They want a savage world.

o   The government is claiming that its interest in providing sex without consequences is greater than anyone’s religious belief. They want a savage world. 

David Cortman offers a summary of the situation: 

This law in and of itself is an unjust law. Anytime that you force people to violate their religious belief, this law is bad for everybody….This is a great win for religious freedom, but people need to understand anytime the government forces any group of people to violate their beliefs, you could be next. 

Indeed. It’s getting harder to find a civilized, thinking citizen whose beliefs haven’t been violated by this administration. We need vigilance and courage. I honor Hobby Lobby, Conestoga Woods, Wheaton College, Tyndale Publishing, Little Sisters of the Poor, Alliance Defending Freedom and the many other organizations and their supporters who have stood up to the federal government Goliath this year.

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

Corporate Religious Freedom

In light of our last post, on heroically standing up to tyranny, I would like to recognize the heroes at Hobby Lobby who are standing up against the HHS mandate infringing on their religious beliefs.

The Hobby Lobby case is one of two 2014 Supreme Court cases relating to the mandate for providing insurance to employees that includes contraception—including abortifacients. (The other is Conestoga Wood Specialties, Mennonite cabinetmakers in Pennsylvania.) The misnamed Affordable Care Act details what must be included in various health insurance policies, and birth control is among the requirements—for everyone, of every gender, age, and circumstance. Under pressure, exceptions were carved out for religious institutions, dithering over a fair amount of minutia deciding things like whether a parochial school run by a church could be exempted, or if only employees of the actual church could be exempted.

A Hobby Lobby store front
photo from here

The government’s knee-jerk response is based on its perceived interests first and foremost, regardless of the effect on individuals and their beliefs. The first attempt at appeasement to church employment was, “You don’t have to pay for contraceptives, if that is against your beliefs; you simply have to pay for policies that will offer it.” Um. That’s still paying for it.

We think the decision is more or less settled for churches, which have a declared religious purpose. But religious institutions aren’t the only places you find religious people. And where you find religious people, you may encounter those opposed to paying for someone else’s pregnancy avoidance. And you’re especially going to find opposition if the pregnancy “avoidance” products include after-fertilization-of-the-egg types, which can be considered abortion.

Such people are among the founders and leadership of Hobby Lobby, the large, national craft store chain out of Oklahoma. They are self-declared religious people. Their stores are always closed on Sundays, in honor of their belief in keeping the Sabbath day holy. (The Hobby Lobby story is recounted in founder David Green’s book More than a Hobby.)

So the question arises: Do persons lose their right to religious freedom when they enter into commerce? Since pretty much everyone does enter into commerce, we probably need to narrow that down to those who do business as an entity, rather than as they themselves individually—which is still pretty wide reaching: DBAs, limited partnerships, nonprofit organizations, companies, firms, privately held corporations, and publicly traded (stock selling) corporations. Plus probably other business structures I’m not thinking of.

The opposition chooses to word this question a little differently: How can a corporation have religious beliefs? It’s not a person. They’re just trying to dodge their responsibility to pay for full health care coverage. (And LA Times editorial titled it “The Hobby Lobby Dodge.”)

So I’m looking at my personal experience, which is very small scale, to see if it translates. Several decades ago I had a writing and editing business that, for various reasons, worked better if I incorporated, had clients pay the corporation, then had the corporation pay me as a contractor. The corporation required three principals: that was me, my husband, and my dad. We met the requirements of the law to be a corporation, but in every respect that was important, I was the corporation: I was the one doing the work, making the decisions, and earning the money that passed through the corporation to me as a contractor. Was the corporation something other than me? On paper, but not in reality. If the corporation had been required to write things I wasn’t willing to write, like porno scripts for example, the corporation would have turned down such work, because I was unwilling to do it.

Suppose there were a government requirement to take on work I found morally objectionable. There isn’t; it seems ridiculous to contemplate—but then having government tell any business what it must buy for its employees seemed ludicrous just a few years ago. So, let’s suppose there were such a requirement of my little corporation. Would I have to do it? My religious beliefs and personal moral code prohibit me from doing so. Under government coercion, I still couldn’t do it. Having government say, “You don’t have to do the work that goes against your beliefs; it’s only required of the corporation, which doesn’t have religious views,” doesn’t help me.

Hiring some other contract writer to do the work wouldn’t even solve the issue for me; I couldn’t have such work produced by the corporation that I control.

When government coerces a commercial entity, the people with controlling interest in that commercial entity have two options: comply, or shut down. Hobby Lobby has already said that, if there is no other recourse, they will shut down rather than comply.

First, of course, comes the question of whether the government can coerce. It (which is supposed to be “We the People,” but sure seems to have become some other monstrous entity) can and does coerce—unless prevented. Government is power. Our Constitution places limits on the federal government, delineating the specifically allowed powers—but those limits have been stretched beyond the point of elasticity. We are left to rely on a hope that unelected judges will say, “No, you can’t do that.”

The Supreme Court is the last resort for Hobby Lobby. They already won in federal appeals court, but the Obama administration isn’t satisfied with the result, so Hobby Lobby must fight on. I appreciate their heroic willingness to do so. Personally, I see Hobby Lobby as my favorite “toy” store; I adore using the 40% off coupon I can make appear on my phone every time I shop there. Having them shut down would be tragic for me, but more so for the thousands of employees, and the additional thousands making products sold there.

In the case of Conestoga Wood, they lost in appeals court on grounds very similar to Hobby Lobby. So the Supreme Court was looking at split decisions, as well as additional dozens of similar challenges to the mandate, when they decided to take on the role of final arbiter.

Back in January 2012 the SCOTUS ruled unanimously in favor of religious freedom in the Hosanna-Tabor case.  But the ruling included recognition that it was a church making its hiring decisions. It’s less certain this time. There is the question of whether a commercial enterprise is comprised of people with religious and other guaranteed rights.

Remember back during the last presidential campaign, in 2011, when media had a jolly time laughing at Romney for stating that a corporation was its people? The Supreme Court had already agreed with him concerning political donations in the Citizens United case, in 2010, which has left the tyrannists gnashing their teeth ever since.

So the Supreme Court has found that businesses have political speech rights. If they find that businesses also have religious rights, then the government can only supersede those rights with a compelling reason. (An example of a compelling reason might be that, if a religion believed in punishing rape victims with death for allowing themselves to be made “unclean,” the government would see that as a violation of murder laws and punish accordingly, regardless of the religion’s beliefs.) That seems to me a high burden in this case. They must convince, not only that there is a compelling interest in the government’s protecting all rights to the use of all contraceptives, including abortifacients; they must convince that there is a right to have such products paid for by whomever the government burdens with the assignment. If we didn’t find ourselves in this parallel Obama-verse, we would shrug off such arguments as piffle.

The Court will hear arguments in spring 2014 and make their ruling probably in June. Let us all pray that the justices have the wisdom to recognize that entering into commerce is not a forfeiture of our God-given right to make moral choices.