I’m busy finishing up my new book, Beyond Separation: Uniting Liberal Politics and Public Faith (Routledge, 2014), so I haven’t been blogging as much as usual. But a new Slate article drew me back to the blogosphere for a bit (note that I have blogged on the mandate before).

The article is based on the big news that the Supreme Court is going to assess Hobby Lobby’s request for a religious exemption from the HHS contraception mandate. The new case is called Sebelius v. Hobby Lobby Stores Inc. And the question is whether for-profit corporations have rights of religious conscience. Note that Hobby Lobby is “closely held,” as it is owned and operated by a single family, the Greens. They believe their Christian faith prohibits the company from facilitating contraception for their employers.

Micah Schwartzman (a legal philosopher whose work on public reason I think very highly of) and Nelson Tebbe have argued that Hobby Lobby’s legal reasoning is based on the controversial claim that if corporations have free speech rights, they have rights of religious conscience. If the SCOTUS endorses this argument, Schwartzman and Tebbe worry that it’d signal a significant, negative legal change.

I want to focus on their claim that exempting Hobby Lobby from the mandate would be bad because it allows Hobby Lobby to burden their female employees (or the wives and daughter of their male employers). In my view, this argument isn’t remotely plausible. But Micah is very smart, so I fear I’m missing something.

I. Hobby Lobby’s Burdens

Schwartzman and Tebbe:

Finally, and critically, there is an important difference of constitutional text and doctrine between free speech and free exercise claims: the Establishment Clause, which implements the separation of church and state. Simply put, there is no free speech analogue to the Establishment Clause. That is not just an arid intellectual point—it matters critically here. Why? Because exempting large, for-profit corporations from the contraception mandate would significantly burden female employees, along with all the wives and daughters covered by the policies of male employees. Thousands of women would lose all insurance coverage for contraception. That loss would be very real, and it would frustrate a central objective of Obamacare: namely to ensure that women have equal access to critical preventative care.

And again:

[E]xempting large, for-profit corporations from the contraception mandate would significantly burden female employees, along with all the wives and daughters covered by the policies of male employees.

Once more:

[T]he Supreme Court has insisted that the Establishment Clause prohibits religious accommodations that impose burdens on third parties—which is exactly what is happening here. Exempting Hobby Lobby from the contraception mandate will seriously burden precisely those women who are its intended beneficiary.

If we were talking about cancer treatment, I’d be more moved by this argument. I still don’t think the need for cancer treatment would override the right of religious conscience, as religious freedom is a basic liberty and a human right. The government simply has to find another way to provide the care. But even if cancer treatment could justify burdening conscience, this is only because cancer treatment is critical to living. In almost every single case, contraception is not.

Yes, on occasion an abortifacent is needed to abort a fetus that resulted from a rape. Yes, on occasion contraception access is required to avoid, say, a predictable, dangerous health problem that would be raised by having a child. But again, these procedures can be paid for on another basis, and a legal exception could be made for them. The “burden” of not having contraception access is extremely light and can be provided for without using force against a religious family.

Notice that everyone accepts this reasoning when it applies to churches. You simply cannot force a pastor to pay for abortions for his secretary on the grounds cited. What’s more, most people agree that you simply cannot force a non-profit charity director of a Christian mission to pay for abortions for his secretary on the grounds cited.

So here’s the key question: why is Hobby Lobby any different? Yes, they’re trying to make money, but why does that mean their religious liberty can be justifiably restricted?! I cannot see that having the aim of making a profit is sufficient reason to restrict a basic human right.

II. Civil Rights and Conscience

I should address a final point they make:

Civil rights laws, including this health care provision, draw the right line when they exempt religious organizations and small companies but not large corporations that could significantly burden the freedom and equality of their employees.

I admit that most people (though not most readers of this blog) will find that dividing line fair, but I think it’s just status quo bias. Setting out to make money should not disqualify anyone from religious liberty, so long as it does not directly impose harms on others that cannot be easily avoided or ameliorated through some non-conscience violating means.

A publicly held corporation is different because ownership is so diffuse that it’s hard to make sense of forcing “the owner” to do something against his or her own conscience, because the “will” of the corporation is merely a legal artifact, in contrast to the wills of the Green family. There are reasons not to impose upon publicly held corporations, but respecting conscience generally isn’t one of them.

But here’s a reply: can closely held corporations discriminate on the basis of race or gender or sexual orientation, like churches and non-profits?

Before answering, I should stress the difference between racial discrimination and not buying contraception. Racial discrimination is far more degrading and encompassing than not buying contraception.

That said, my answer is yes, they can. We easily, if grudgingly, accept that we must respect racist or sexist conscience (if not mere racism or sexism) when it applies to non-profits and churches, and even small businesses. And the employees of these organizations may need their jobs just as much, and value their associations just as much, as people who work for Hobby Lobby. A church can burden its secretary just as much as Toledo’s Hobby Lobby can burden its cashier, if not more.

So once more: why is a closely held for-profit corporation any different than a small business, a religious non-profit or a church? Why is seeking a profit on a large scale sufficient to restrict rights of religious conscience in cases where no significant burden is present?

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  • jtlevy

    Legally this business about burdens can be oddly difficult. The question “is there a burden?” and the question “is there an alternative?” have a complicated relationship. “A heavy burden trivially-easily avoided” sounds strange to an economist, maybe– a low opportunity cost means a low cost. The ease of avoidance *means* that the burden can’t be heavy. In law, that’s sometimes but not always the case. If I have a right to do something or be somewhere or say something, then sometimes your attempt to burden me is correctly met with “I don’t care how easy it is for me to get around your burden– you should not be burdening me *at all.*”

    But I want to offer an answer– not a definitive answer, not a dispositive answer, but *an* answer– to Kevin’s question about the difference between for-profit activity and other activity.

    “Go into the Exchange in London, that place more venerable than many a court, and you will see representatives of all the nations assembled there for the profit of mankind. There the Jew, the Mahometan, and the Christian deal with one another as if they were of the same religion, and reserve the name of infidel for those who go bankrupt.” (Voltaire)

    Doux commerce is an important part of liberalism’s social theory, and the religious neutrality of the commercial sphere is part of commerce’s “doux” character. The separation of church and market contributes something different to a liberal society from the separation of church and state– but it does contribute *something.*

    I’m pretty radically pro-commerce as well as being pretty radically pro-religious pluralism/ religious corporate autonomy (in the sense of corporate churches). But Hobby Lobby makes me very uncomfortable in its mixture of those two elements.

    Corporations are, of course, persons, and they bear rights. But this is so in a way that is just the opposite of Mitt Romney’s “corporations are *people*,” that is, reducible to their flesh-and-blood members. When making the leap from sole proprietorship or partnership to (even a closely-held) corporation, I (tentatively) think that an owner separates the firm from him-or-herself as a natural person. Taking corporate personhood seriously seems to me to sit strangely with asserting the religious beliefs of the natural person behind the corporation as if they belonged to the corporation itself, with treating the closely held corporation as if it weren’t *really* any different from a sole proprietorship.

    • Kevin Vallier

      Thanks for the thoughtful comment, Jacob. I’m not sure how to respond, exactly. My main thought is that while sphere-separation is important I’m not sure how exempting Hobby Lobby undermines that. What undermines the separation is the Obama Administration’s attempt to force companies to pay for services they find morally reprehensible. It seems to me not to *add* to the entanglement to object on grounds of conscience. This is just one more reason to do away with employer provided health insurance. Heck, I’d even prefer single payer to the mess we have now, under certain conditions.

      I’d also argue that whether a person or group separates themselves from their business seems to me a matter of degree to be understood in terms of their own intentions and the shareholder agreements and distributions that obtain in the case. The fact that Hobby Lobby is closely held suggests to me that the owners haven’t distanced their agency from their business in the way that a publicly held company has. Presumably they’re paying big costs for doing this, as they could increase their profits by opening up shareholding. They’re also willing to pay enormous fines. That suggests to me that the best way to understand the Green family is as exercising their agency through their business in an intimate way, say, that Eric Schmitt at Google is not. And I can’t see how the act of incorporation is significant enough to override that.

      • DavidCheatham

        That suggests to me that the best way to understand the Green family is as exercising their agency through their business in an intimate way, say, that Eric Schmitt at Google is not. And I can’t see how the act of incorporation is significant enough to override that.

        So you’re asserting that closely held corporations should _not_ have limited liability?

        You can’t seriously stand there and assert that the owners _should not_ be liable for ‘exercise their agency’ when sued over corporate action, but that they are allowed to ‘exercise their agency’ WRT religion.

        • Kevin Vallier

          I don’t follow. Where does limited liability fit in?

          • DavidCheatham

            If a corporation merely exists to exert the will of their owners, why do they get limited liability _at all_?

          • martinbrock

            The particular regulation we’re discussing does not only prevent owners of a corporation from enacting their will. It also limits the ability of employees to enact their will by choosing to labor within a corporation reflecting their values.

            If you grant the state a monopoly of limiting liability, then you effectively grant it countless other powers as well. You may as easily argue that a state may compel corporations not to offer health insurance covering contraceptives, but you don’t address the merits of the policy this way.

          • Les Kyle Nearhood

            Very good point Martin. The will of “people” not just a corporation, is being replaced by the will of government.

          • martinbrock

            To encourage people to invest in risky business models.

          • Carolfb

            Corporations are artificial entities designed to limit the liability of the people who own them. You can’t sue the Greens in their individual capacity for wrongs committed by Hobby Lobby, except in very limited circumstances. The problem many folks have with this case is that the owners of the corporations want their cake and to eat it too: we are limited liability corporations should we harm anyone else AND we are “people” who can exercise religious rights. I don’t buy it. If you don’t want the not-very-stringent-in-light-of-the-significant-benefits responsibilities that come with being a corporation, then don’t incorporate.

          • martinbrock

            Limited liability encourages people to invest in risky business models by limiting the corporation’s liability to the value of corporate assets. A state with a monopoly of granting limited liability also has the power to associate limited liability with countless other policies, but this fact is not a argument in favor of any particular policy.

            That a state effectively exercises a monopoly of imposing a death penalty is not an argument for imposing a death penalty in particular circumstances either.

    • MARK_D_FRIEDMAN

      I know you offered this view tentatively, but I can’t see why “When making the leap from sole proprietorship or partnership to (even a closely-held) corporation, I (tentatively) think that an owner separates the firm from him-or-herself as a natural person.” An Orthodox Jew doing business as a sole proprietor will be mortally offended by a government mandate that he serve pork and shrimp in his cafeteria. Each of a hundred different Orthodox Jews doing business together as a closely-held corporation will be equally offended. I don’t get the supposed difference.

  • j r

    This is a lose-lose situation as far as I am concerned. The flip side to allowing for a robust sphere of religious exemptions from legally enforced social norms is that we are not allowing for exemptions based on non-religious forms of free thought and expression. It is unclear to me why we ought to privilege religious belief and practice over the beliefs and practices born of rational contemplation of a particular issue..

    Unfortunately, once we have gotten to the point where the government retains the ability to enforce a specific basket of healthcare goods and services as the minimum and consider anything below that floor to be a civil rights violation, the point is all but conceded.

    • Kevin Vallier

      In my book, I argue that we should upgrade respect for secular conscience to the level that respect for religious conscience already enjoys. So I don’t want my post to be construed as endorsing asymmetric treatment.

      • j r

        My comment wasn’t about your post, but glad to hear that you’re advocating for the upgrade on secular conscience.

        • Libertymike

          What about secular conscience as the predicate to exempt from taxation those who do not desire to finance the national security state?

          • Les Kyle Nearhood

            In the moral sphere, that may be correct. As a practical matter it would never fly.

          • Libertymike

            In the moral sphere, it is absolutely correct.

    • adrianratnapala

      These lose-lose situations come up because the law tries to forcibly restrict the kind of employment agreements people can make. The decision to provide a certain health care rather than (say) a higher salary is something that free people should be able to negotiate for themselves.

      Now if an employer offered “comprehensive insurance”, and then turned around and said “Oh but contraception is not included” — then there is a legitimate complaint. But as far as I know, that’s not what all this is about.

      • good_in_theory

        No business is required to offer healthcare. I presume the consequence of offering an in-kind benefit that doesn’t qualify as health care (per the feds) is that the in-kind benefit doesn’t get counted as health care (by the feds). Boo hoo.

        • adrianratnapala

          Ahh, so we are just talking about what makes the health care qualify for the tax rebate? Then that is much more reasonable, and if I were a judge I would just defer to the legislature.

          That said, the tax rebate shouldn’t exist in the first place.

          • good_in_theory

            Tax rebate and any other things that hinge on conforming to the standard – for ex individual tax penalties, I imagine.

        • Theresa Klein

          Well, they will pay a penalty if they don’t. Which is effectively fining someone for exercising a disfavored religious belief.

          Imagine imposing a tax on any restaurant that doesn’t serve pork.

    • adrianratnapala

      These lose-lose situations come up because the law tries to forcibly restrict the kind of employment agreements people can make. The decision to provide a certain health care rather than (say) a higher salary is something that free people should be able to negotiate for themselves.

      Now if an employer offered “comprehensive insurance”, and then turned around and said “Oh but contraception is not included” — then there is a legitimate complaint. But as far as I know, that’s not what all this is about.

  • Tyler Hower

    How will we make out the difference between racist or sexist or anti-gay conscience and mere racism or sexism or anti-gay feeling in practice, as opposed to theory?

    • martinbrock

      Do I need to make out the difference?

      • Tyler Hower

        I don’t think that you need to. But I think that it needs to be made out if it’s going to do the work that it is used for above. And, I’m not clear that it can be done in a principled and practical way.

  • Vern Imrich

    I’m surprised no one has pursed this angle: If legal incorporation is seen as a benefit granted to a person by the state in exchange for some loss of religious liberty (here, providing contraceptive coverage), how isn’t that the same as, for example, the state passing a law that lowers tax rates for anyone who agrees not to practice religion in some way. Clearly the latter would be seen as infringement of the establishment clause.

    In other words, we need not find that a corporation is a person. We need only establish that corporate law grants benefits to persons (e.g. limited legal liability via membership in a corporation). State granted legal benefits cannot be made contingent on restriction of religion, or else the state is using its power to restrict religion. Similarly the state cannot grant benefits to promote religion.

    • jtlevy

      “As a religious believer and a bearer of freedom of speech I have the right to denounce nonbelievers and tell them they’re going to hell. Access to public employment is a state benefit governed by the unconstitutional conditions doctrine. Access to public employment therefore cannot be conditioned on waiving one’s freedom of speech or freedom of religion. Therefore judges and DMV officials alike have the right to interrogate the people in front of them about their religious beliefs and denounce them if they believe wrongly.”

      It does not, in fact, follow.

      • Les Kyle Nearhood

        No, that is a big stretch, Religious belief is not being trampled by simply requiring government workers to themselves respect the religious rights of citizens.

        • good_in_theory

          Neither is religious belief being trampled by simply ensuring individuals the right to elect to use their health insurance for the purposes they desire.

          • martinbrock

            Individuals may elect to use their health insurance for the purposes they desire without the policy you defend here, so however little people preferring not to share the costs of contraception are trampled, trampling anyone to any extent for no reason, except the joy of dominating others, seems indefensible.

          • good_in_theory

            “trampling anyone to any extent for no reason, except the joy of dominating others, seems indefensible.”

            Well then Hobby Lobby ought to stop attempting to dominate the private decisions of its employees.

      • Vern Imrich

        Your example is a limit applicable to all religious practice evenly (a person’s right to practice a religion extends only up to another’s right to practice their own religion). It misses two key points:

        1. The condition applies equally to all religions. With this contraceptive mandate, the condition is applied to a specific sect or denomination (contraceptives that act after “the point of conception” to prevent the process from continuing). Imagine a tax credit for anyone who does not wear head covering.

        2. Are there alternative means that would achieve the same end without limiting religion? Here, the government can claim they are not targeting one denomination, but providing a public service. But if there are clear alternatives then mandating the most restrictive means would be invalid. Back to my prior example, if the public interest is prevention of head lice, if there are other ways to stop it than mandating no wearing of head coverings, then a head covering ban would be invalidated.

        Here, government can easily directly fund contraceptives – “Medicade for contraception” for example. They have the system in place already. Choosing to do this with a mandate on private business seems a direct needless targeting of those business owners. I can see Roberts going with that kind of narrow case-by-case logic.

  • good_in_theory

    If we really want to defend hobby lobby, we ought to allow them to prohibit any benefit they provide to anyone, or anything derivative of a benefit hobby lobby has provided, to be used for anything that has to do with abortion and contraception.

    Only then can the Greens keep their souls untouched by the vague penumbra of the possibility of someone to whom they have provided resources electing to do something of which the Greens disapprove.

    Or are we actually under the delusion that Hobby Lobby electing to pay an insurance company whose participants may elect to have said insurance company pay a doctor to do something the Greens don’t like infringes on the Greens’ religious liberty?

    Is anyone forcing the Greens to elect to use contraception? No? Well then, their religious liberty seems to be pretty intact. Why should they get to control how people use in-kind employment benefits any more than they get to control how people use wages?

    If they have a problem with not being able to hire strictly good upstanding Catholics (who mostly use “immoral” forms of contraception anyways), take it up with Title VII:

    It shall be an unlawful employment practice for an employer -

    (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin;

    • Kevin Vallier

      Would you apply this reasoning to churches? Can the feds force the Catholic Church to pay an insurance company to cover their employees with full knowledge that abortion is covered?

      • good_in_theory

        The Catholic Church is free to discriminate in its hiring practices on the basis of religious beliefs. Why isn’t that protection enough? They don’t need any special exemptions; they ought to be satisfied with trust in the moral convictions of their employees.

        • Kevin Vallier

          I’m really surprised by your response here, given other views you’ve expressed on the blog. You really think it’s legitimate for the government to force even *churches* to financially cooperate with what they regard as evil?

          • good_in_theory

            What I don’t see is any meaningful distinction between what churches are being asked to do *if* they decide to offer group health insurance, and what they are already doing.

            That is I don’t see a meaningful distinction between paying wages, which allow their recipient to elect to pursue abortion, and providing health care, which allows its recipients to elect to pursue abortion.

            Churches seem to me to already have the best moral prophylactic they could hope for in being free to discriminate in who they hire on the basis of religious belief. But that is almost beside the point, because even if churches did not have this power, and even if they were required to provide health insurance to their employees, the distinction between wages and ‘health-care as an in-kind benefit given in place of some portion of wages’ strikes me as without weight.

          • Sean II

            “…the distinction between wages and ‘health-care as an in-kind benefit given in place of some portion of wages’ strikes me as without weight…”

            It would be very hard for you to hold that position consistently. If the federal government started paying its employees with non-transferable Honey Baked Ham gift cards, provoking its Muslim and Jewish employees to complain of an attack on their conscience, somehow I think your vision would be cleared up pretty quick.

            The special thing about cash is precisely that it puts choice in the hand of its holder, and transfers choice completely when it passes from hand to hand.

            The special thing about non-cash benefits is precisely that they don’t do this.

            The special thing about mandatory non-cash benefits is precisely that they remove choice from the hands of both parties, employer and employee.

            Are you really having trouble with these very simple concepts?

          • Libertymike

            While we are on the subject of closely held corporations and the distinction, if any, between cash and non-cash benefits, perhaps another example shall suffice:
            The issuance of non-voting stock.
            Resort to the issuance of non-voting stock is made for various reasons, including intra-family succession planning and rewarding valuable employees. I routinely advise my clients who elect to incorporate to provide for both voting and non-voting common stock. Typically, the founder or founding owners of the corporation will issue just voting common stock to themselves and will only issue the non-voting common stock to either a family member who has become part of the business or to an employee who plays a critical, if not indispensable, role in the company’s success.
            The founding owners will typically issue the non-voting stock to the valuable employee as a means of retaining the services of the employee. Thus, the employee now becomes a stockholder of the corporation.
            However, the founders will still control the company as the employee or family member who now owns a piece of the rock does not have any voting power. Thus, while he may be allowed to attend the corporation’s stockholder meetings, he does not possess voting power.
            Thus, how does one analyze this reality in light of good in theory’s articulation above?
            Interestingly, although I generally agree with Sean II’s analysis, the IRS agrees with good in theory, at least with respect to the issue of stockholder dividend distributions for sub-chapter S corporations. For example, A and B, the founding stockholders of Social Justice is Delusional, Ltd., both own 50 shares of the corporation’s voting common stock. If A and B decide to issue 50 shares of non-voting common stock to C, the company must distribute 1/3 of its stockholder dividends to C.

          • good_in_theory

            In the analogy, they wouldn’t be giving hams, they’d be giving food stamps which can be used to purchase ham. If Imams asked for special food stamps that could not be used to buy pork, they would be just as ridiculous as the Catholic Church asking for health insurance that could not be used to service an abortion.

            ETA: Are you really having trouble with this very simple concept?

          • Sean II

            Nice try, but that won’t work.

            If you purchase a policy that covers X, it means you’ve already bought X (or, at least, X minus whatever out-of-pocket costs remain when X is redeemed). Likewise, if you buy a gift card to the Honey Baked Ham store, it means you’ve already bought the ham.

            The right to get an abortion (or in my example, pick up a ham) is something the employee has, and something the employer has paid for.

            If the Church is forced to buy its employees a policy that covers abortion, it means the Church is being forced to pay for abortion.

            Why bother pretending not to understand this? You had an almost-clever argument going there, but it didn’t work out. Happens to everyone. So what? Why don’t you just say “Fuck it. Religious freedom has its limits. I don’t deny that some people are forced to pay for things they abhor. I just don’t mind that very much.”

            Far more honest that way…

          • good_in_theory

            “If you purchase a policy that covers X, it means you’ve already bought X (or, at least, X minus whatever out-of-pocket costs remain when X is redeemed). Likewise, if you buy a gift card to the Honey Baked Ham store, it means you’ve already bought the ham.”

            This is absurd. If I buy a gift certificate to the honey baked ham store, the honey baked ham store has my money. I haven’t bought anything in particular. In fact, the HBH store sells turkey, beef, yams, salad, mustard, cranberries, chutney, tarts, cake, &etc.

            The HBH store elects to carry ham because individuals with money and gift cards elect to get ham, not because money and gift cards have the potential to be used to get ham. In fact, federal wage laws *require* Catholics to pay people in vouchers that enable the purchase of abortions. These are called “dollars” (or, to be specific to the statute, “cash or negotiable instrument payable at par”) Unfortunately, Catholics can’t just pay people in special Vatican Vouchers which are not redeemable for contraception.

            It remains the case that it would be as absurd for the Orthodox to demand special halal vouchers in a world where businesses had to pay out a portion of wages in food stamps as it is for Catholics to demand special health-care. If their employees elect to use their benefits for something of which the superstitious disapprove, this is no different from every other day of the week, when their employees use their benefits for something of which the superstitious disapprove.

            If one is worried about being contaminated by the choices others make with resources others elect to use as they wish, then foreswear mammon. The Greens are free to join the nearest Franciscan order.

          • TheTracker

            If you purchase a policy that covers X, it means you’ve already bought X. . .”

            Uh, no, it doesn’t remotely mean that. Try again.

          • Kurt H

            GIT is dead on target here. The church exemption was a negotiated compromise that the administration should never have conceded to. There is no valid reason why a religious employer can’t provide the same insurance as everyone else if they want their tax breaks.

          • TheTracker

            We all have to financially cooperate with what we regard as evil. Or do you not pay your taxes?

        • Theresa Klein

          The Catholic Church is, but Hobby Lobby isn’t. Hobby Lobby must comply with non-discrimination laws. So basically you have a series of laws that says: You MUST hire people who don’t share your religious beliefs. you MUST provide them with health insurance. That insurance MUST cover things that violate your religious faith.

          • good_in_theory

            I assume you’re responding to the less indented comment up above. Yes, Hobby Lobby must comply with non-discrimination laws.

            But then the question is about discrimination laws. Ought businesses be able to discriminate against their employees on the basis of religion? Or, alternatively, can you both prohibit religious discrimination in employment and give religious employers exemptions which allow them to discriminate among their employees on religious grounds?

            Health insurance remains the employees benefit, and each holder of health insurance is free to let their religious belief guide their use of said insurance. It remains the case that no individual can be forced to use health services they object to. Unfortunately, Hobby Lobby might not get to tell its employees how to use their insurance, any more than they can tell them how they are to use their wages.

          • TheTracker

            Yep, it’s almost like they are required to render unto the state the things which are the state’s.

            How unchristian! Or not.

    • Theresa Klein

      Or we could simply make it legal for them to discriminate against people who use contraception. Say, allow them to hire only Catholics, for instance.

      • good_in_theory

        Religious institutions can do this. But Hobby Lobby isn’t a religious institution. One could repeal the Civil Rights Act, but that seems unlikely.

  • stevenjohnson2

    “So here’s the key question: why is Hobby Lobby any different? Yes, they’re trying to make money, but why does that mean their religious liberty can be justifiably restricted?! I cannot see that having the aim of making a profit is sufficient reason to restrict a basic human right.”

    It is unjust that religious organizations and small businesses are exempted from paying any taxes or obeying all the laws. Limiting the injustice by including the large businesses may smack of the arbitrary but it’s not.. I think though the best way to limit the injustice would be to rectify the irrational exemptions. Increasing the exemptions merely makes the irrationality more pervasive. Also, Hobby Lobby is not a human being. Also, since the Green family desired the benefits of incorporations they willingly assigned their personal rights away and this is a red herring. Last, small businesses and religious organizations also wish to make a profit, and this is a really stinky red herring.

    “… can closely held corporations discriminate on the basis of race or gender or sexual orientation, like churches and non-profits?…my answer is yes, they can…
    So once more: why is a closely held for-profit corporation any different than a small business, a religious non-profit or a church? Why is seeking a profit on a large scale sufficient to restrict rights of religious conscience in cases where no significant burden is present?”

    Since churches and non-profits should not be able to discriminate in business contracts, this is a weak justification. But closely held corporations are different in that churches and non-profits are allegedly not engaged in business. If a legal fiction can give property owners extra rights, it can justly give church goers and non-profit managers extra rights too. Seeking a profit on a large scale means the burdens imposed are on a large scale. That is of course why distinguishing the large scale offenders is not wholly arbitrary in principle. It is of course difficult in practice. Perhaps contraception should not be provided through an employer system of insurance, but pregnancy is a major burden, no matter how much religious bigotry leads one to think it just desserts for sluts.

    • Kevin Vallier

      “Since churches and non-profits should not be able to discriminate in business contracts, this is a weak justification” So the feds can order the Catholic Church to ordain women?

      • stevenjohnson2

        How perfectly silly. Of course the Roman Catholic Church can refuse to ordain women. Equally, no, the Roman Catholic church should not be able to hire men only. Or for that matter, women only, for different positions. But every congregant is free to press monetary compensation into the priest’s hand. Every congregant is free to not listen to women preachers as well. It is not an undue burden on religious observance to expect that the believers will arrange their affairs without special benefits in business contracts.

        • martinbrock

          I don’t see the distinction you’re making here. Why ordained priests but not other positions? Other positions includes bishops? Nuns? The Pope? Alter boys? If the Church wants to exclude women from a position, they only need to limit the position to priests? Can they create a new category priests?

          • Kevin Vallier

            I’m with Martin, though perhaps I’m still being perfectly silly.

          • stevenjohnson2

            The distinction? There’s a difference between exercising a supernatural power and being paid to provide services. There is no justification for exempting any employer from laws against discrimination. Saying that a church can justly refuse to hire a gay organist or a black secretary or a janitor with a limp privileges religious conscience in exactly the same way that permitting malpractice in education or psychological counseling does. It may be done but it is morally wrong and it is an insult to human dignity in the name of a hypocritical definition of freedom.

            But, believing that an ordained priest has supernatural powers really is a matter of religious conscience. The Roman Catholic Church as well as every other church is entirely within its rights to ordain whomever it wants. What it nor any other church should be able to expect is that the state should treat this as an employment contract. A contract in which on party provides imaginary services is not a contract.

            For the state to pretend so is an endorsement of each church that receives this, which is an egregious violation of religious conscience. And we all know that in practice the assignment of this privilege will itself be discriminatory. How not? All this nonsense is a covert system of state support for private sects.

            Since there is no justification for treating an ordained priest as contracted by his church to provide services to the congregation, the state should either forbid hiring persons for this reason, or exercise the normal legal controls over this activity.

            In the first case, congregants who only believe a male priest can successfully turn bread into flesh etc. can still pay the priest in a personal interaction. The state cannot save everyone from folly, therefore has no obligation to exercise inhuman efforts in a vain attempt. I thought this was pretty obvious. I suspect it’s just hard to accept because on some level it’s obvious that state support of religious privileges are essential.

            In the second case, the implicit objection seems to be that following the law imposes an undue burden. I think the burden of proof is on those who assert this.

          • martinbrock

            A gay organist can also refuse to play the organ in a homophobic church or to support the church otherwise. Why would a gay organist want to play the organ in a homophobic church? Isn’t a gay organist better off in a church that isn’t dominated by homophobes? Compelling this church to hire a gay organist doesn’t protect the organist from all sorts of subtle discrimination that no state can hope to police.

            The state should forbid Catholic churches from paying priests? Individual members of a church may pay a priest, but they may not pool their resources and pay a priest from the pool? If the priest sweeps floors, may the church pay him?

          • stevenjohnson2

            Answering the questions, in order, starting with the second paragraph: First, a gay organists may need a job to live.

            Second, starving isn’t better off, however uncomfortable it is to know part of the audience for your entertainment looks down on your private life.

            Third, no gay organist is legally compelled to work for people who dislike them. How allowing churches the right to ignore discrimination laws leads to this problem is a mystery. The purpose in compelling a church, which advertised for an organist to hire a qualified organist is, basically fairness and decency. Admittedly these are not monetary value and property rights.

            Finishing with the last paragraph, again in order: No, the state should not enforce contracts with priests, on several grounds. These arrangements have no more legal validity than gambling agreements, or at least shouldn’t.

            No, because pooling means an unincorporated association is engaged in contracting for services but will not abide by the laws against discrimination. In practice, churches will claim they are contracting not just for supernatural service but real services, such as counseling and preaching (entertainment.) In that regard they could easily pool resources and hire someone, pursuant to following the law.

            Yes, provided the church does not discriminate in hiring janitors, or in their pay. The priest/janitor could provide his supernatural services for free, and get paid for sweeping. Other arrangements would be made for counseling and preaching.

            At this point, I think you’re playing obtuse looking for some sort of irrelevant gotcha. Let me ask you about a serious injustice fostered by the discriminatory privileges wrongly assigned to churches. Should courts uphold a person who successfully sued a Roman Catholic priest for malpractice in psychological counseling? I have a vague notion that people have tried to do this, but while it is right and proper by my standards, wouldn’t it be a violation of religious rights by your standards?

          • martinbrock

            A gay organist need not entertain homophobes to live. He may instead entertain people who are not homophobes. A gay organist entertaining non-homophobes is not starving, and a would be gay organist who doesn’t find a job as an organist may avoid starvation through other employment. The choice between starving gay organists and the statutory imposition you advocate is a false choice.

            If a state threatens to harm homophobes for discriminating, homophobes may pretend not to be homophobes, to avoid suspicion and create plausible deniability. Under the circumstances, a gay organist wishing to avoid a homophobic employer is at a disadvantage, because employers do not inform him of their homophobia.

            If the church explicitly advertises for a straight organist, you may object to the church’s sense of fairness and decency and join a church advertising otherwise. Why is that a problem?

            If the general population is so homophobic that non-homophobic congregations can hardly exist, then I don’t expect a majoritarian state to forbid discrimination. I rather expect a majoritarian state to require discrimination under the circumstances. Then refusing to employ gay organists might be a condition of limited liability. Right? This circumstance doesn’t seem unrealistic at all, considering that homosexuality has been criminal in my lifetime.

            On the other hand, if the population is not generally homophobic, gay organists may find employment entertaining non-homophobes. Maybe every would be gay organist doesn’t find a job as an organist, but no conceivable system can guarantee a job as an organist to everyone who wants one.

          • Les Kyle Nearhood

            Your arguments only resolve to me that the government should not compel anyone to hire anybody for any reason.
            That you want to limit religious liberty only compounds the limitation upon other liberty you espouse.

          • stevenjohnson2

            And this is the kind of thing that keeps strengthening my conviction that in the mouths of libertarian, “freedom” is a euphemism for privilege. Surreptitious defense of inequality, exclusion and inequity by a false name is an intellectual perversion.

          • Les Kyle Nearhood

            Except the burden of proof is upon you to reveal to me how governments have actually removed inequity, exclusion, and inequality without causing a world of unintended consequences. I know that leftists disagree with libertarians, duh, but you have not shown me that your faith in government, in this case, will lead to better outcomes than allowing people freedom. All I see is that in the name of some vague constituency, (who has not stepped forward) government wishes to compound rules and burdens they have already placed upon business with more rules and burdens.

          • good_in_theory

            Special interest groups running around for special exemptions is what compounds rules and burdens.

          • Kurt H

            Similarly, why would a black person want to work for a racist? I guess that about wraps it up for the Civil RIghts Act. Suck it up, and find a new job non-white Americans!

            Perhaps some things shouldn’t even be up for negotiation in an employee contract. By failing to act, the state facilitates racism, sexism, etc.

    • John

      “Congress shall make no law”. Doesn’t say anything about only in regards to people.

  • http://socioproctology.blogspot.co.uk/ windwheel

    ‘I still don’t think the need for cancer treatment would override the right of religious conscience, as religious freedom is a basic liberty and a human right.’ Cool. So Christian Scientists, or adherents of any other Religion which denies the efficacy of Western Medicine, get to opt out. If they get higher retained profit as a result then they can buy out Public Corporations and turn them into ‘closely held’ private companies.

    One other question, why stop at contraception? There are a lot of medical procedures and treatments which impact on quality of life but which aren’t necessary to protect it. You may answer, ‘that is irrelevant. There is no well founded objection on purely religions grounds to such treatments’. However, Religious objections to contraception arose at least partly because Religious orders were in the highly lucrative business of selling unwanted babies.

    • Kurt H

      Are *any* purely religious objections to medical treatments “well-founded”? By definition, any such objection stems from subjective supernatural belief rather than documented research. It’s completely reasonable for the state to define what constitutes valid health insurance, if it is going to offer a tax break for companies that provide it. It seems like the state would *have* to create such a definition at least to some extent.

      If Hobby Lobby doesn’t like the government’s definition they can opt out and pay the fine. But, this isn’t about principle — it’s about money and power. They want the money afforded by the tax break AND the power to impose costs on employees they deem “immoral.”

      • http://socioproctology.blogspot.co.uk/ windwheel

        I quite agree.
        No doubt there is some very subtle point which Kevin is making that escapes me, but the common sense of the situation is that it is the elected Govt. of the land which gets to say what constitutes minimal acceptable medical coverage.
        One motivation for Religious objections to medical treatment is that Science weakens our Faith in Divine Providence. A secular version of this is that Science insists we make our home in this world whereas the human condition is essentially ‘ontologically dysphoric’ and Man can only fulfill himself by protesting the senselessness and ugliness of all he sees around him. If he dies prematurely, due to lack of medical care, so much the better. Earth is Hell, and he is well out of it.
        Since Religion gains more money and power when Scientific Medicine is not available- also anti abortion laws mean that they get more babies to sell- there is going to be a material incentive for it to oppose all sorts of things. Indeed, Religion is always going to try to make itself an ‘obligatory passage point’ in any Public Decision making process by making absurd claims about the sanctity of the soul and its own superior compassion.

  • John

    This is a double overstep by government. There is, in fact, zero authority to tell Hobby Lobby what it must do for its employees. So arguing about whether they can tell them buy birth control for their employees is pretty silly.

    It may be effective to go after the little details, but it’s hardly a principle stand. It practically gives that the Feds have the authority to do all but that, when it has zero authority over any thing like it.

    • DavidCheatham

      I agree. The Federal government should not be allowed to tell any corporations what to do.

      In fact, to keep from infringing on _anyone’s_ religious freedoms, the Federal government should just dissolve Hobby Lobby into thin air. The corporation should be put into conservation, and corporate assets should be sold and distributed to the owners. *POOF* Now ‘it’ can’t be made to do anything ‘it’ doesn’t ‘want’.

      It is hilariously delusional when libertarians start trying to assert that governments have no right to tell _corporations_ what to do. You know, corporations, those _fictional_ people that the government lets people create and then pretends really exist?

      Also, how dare J.K. Rowling enslave the characters of the Harry Potter books like that? Do they not have any rights?

      • John

        First of all, government doesn’t have any “rights”, it has powers granted by the people through its constitution. You can read the 10th Amendment for a short summation.

        Secondly, there is no delegated power over how businesses operate in the US, except indirectly over commerce that crosses state lines.

        Corporations aren’t people, they are “legal persons”, a term that has been around for hundreds of years, incorporated by states. This power wasn’t delegated to the federal government. The federal government also has no power to dissolve them.

        Please read a book.

        • DavidCheatham

          First of all, government doesn’t have any “rights”, it has powers granted by the people through its constitution. You can read the 10th Amendment for a short summation.

          Bzzzt, wrong.

          right – noun: a moral or legal entitlement to have or obtain something or to act in a certain way

          I.e., ‘The government, through the power granted by 16th amendment, has _the right_ to tax income.’

          That use is an _entirely correct_ use of the word ‘right’. All uses of the word ‘right’ in a political discussion do not mean ‘constitutional rights granted to people’.

          ‘A right’ is simply any power to compel some other entity to behave in a certain way. (Or, alternately, it can refer to the fact they should have such power, even if they can’t exercise it.)

          Secondly, there is no delegated power over how businesses operate in the US, except indirectly over commerce that crosses state lines.

          I’m pretty certain I said I agreed with that. The Federal government should not regulate Hobby Lobby at all.

          Instead, due to their lack of complying with the voluntary suggestions that they give health care to their employees that the government passed, they should be dissolved as a corporation and all pieces handed back to their owners.

          You’re about to insist that the US government does not have that power. This argument, as I pointed out, is completely absurd. The US government created laws giving them existence in the first place. What the government made, it can unmake.

          Granted, whatever state they’re in also gave them existence, and I guess they can keep existing under that…which is going to be incredibly odd and confusing for them after the US government dissolves them in Federal court, and attempts to tax the income of them as personal income, and refuses to let them have legal liability in Federal court…but there you go.

          • John

            No, the government has permissions and powers to infringe rights, but not the right to do so. An “entitlement” isn’t really a right because it’s subject to the whim of the day, whereas true, natural rights are not.

            Further, the government has no power to dissolve it. The states incorporate, not the federal government. Further, a corporation is just a legal convention, like marriage. You could dissolve a marriage and the couple would simply make a different arrangement.

            Your last paragraph simply explains why it is foolish to allow the federal government to assume powers and responsibilities that it doesn’t have.

          • DavidCheatham

            No, the government has permissions and powers to infringe rights, but not the right to do so.

            I didn’t say anything about ‘infringing’ rights. You’re rather begging the question. In fact, you’re begging it in a rather irrelevant way, trying to make something _you yourself_ made into a semantic discussion back into the original discussion.

            You have two choices here. _Either_ you agree I’m correct with the use of the word ‘right’, and drop your rather silly semantic argument and we can move on to actually discussion whether or not it does have the right to do what it’s doing in this specific instance.

            _Or_ you argue that I am using that word wrong, that it can’t be used that way, and stop trying to prove that what the government is doing _here_ is not allowed. Because whether or not it is allowed has no bearing on whether the word itself is correctly used. Stating I’m _wrong_ about the government being allowed to do it does not even slightly prove that ‘right’ is an incorrect word to describe things it _is_ allowed to do.

            I will not argue with someone who says that A cannot mean B, and _at the same time_, that I am wrong because A is not B in this specific instance. Now, I could be wrong about both, but I flatly refuse to be in an argument of both things at once, because, like you _just_ did, the people I am arguing with will conflate the two. You either get a semantic discussion, or you get a political discussion.

            Here is a question for you: Does the Federal government have the right to enter treaties with other countries?
            Yes or no.

            If ‘no’, please continue the semantic discussion. (Or feel free to be just leave, because I’ve already demonstrated the dictionary, and indeed common usage, agree with me, so I have very little to say there, but whatever.)

            If ‘yes’, we can move on to the actual discussion of whether or not the government has the right to do what I described _in this specific instance_.

            An “entitlement” isn’t really a right because it’s subject to the whim of the day, whereas true, natural rights are not.
            Wow, it’s a _literal_ ‘no true scotsman’.

            I find it astonishing you think I said the phrase ‘natural rights’. I’m pretty damn certain I didn’t. Natural rights is a way to talk about rights that human beings inherently have, and _obviously_ I wouldn’t have used that phrase to refer to _government rights_.

            Hey, while we’re here, how about you list some of the non-natural rights?

          • John

            Neither A nor B. I’m arguing that it is misleading or poor usage, not that it is 100% incorrect. It just imparts more power than exists. Different legislators could simply change it.

            However, the right to life the right to the pursuit of happiness, the right to seek privacy, the right to the fruits of your labor, the right of movement, speech, etc are immutable and so shouldn’t be mixed up with the government power to do things as those are simply arbitrary.

            Universality and permanency are key attributes of a genuine right.

          • martinbrock

            The United State does what it does, but people might associate and act collectively without a state license. If Hobby Lobby declares all of its employees “independent contractors”, can it then avoid the requirement to provide health insurance covering contraceptives, or does a Federal court then declare Hobby Lobby’s declaration a ruse and compel the owners to provide the insurance anyway?

            In other words, are people free to associate as they choose, eschewing any benefits of particular, standard terms of association constructed by the state, or does the state monopolize terms of association by forbidding other terms?

            I couldn’t care less what you label “right” or “just” or “proper” or “noble” here. These semantic issues have nothing to do with my question. I suppose subjects of the United State are not free to associate as they choose, and I don’t suppose that the state helps anyone by forcibly constraining terms of association among its subjects.

          • DavidCheatham

            In other words, are people free to associate as they choose, eschewing any benefits of particular, standard terms of association constructed by the state, or does the state monopolize terms of association by forbidding other terms?

            The second. But that’s already obviously the case in almost every possibly way.

            It is possible to assert that this should _not_ be true, that there should be no such thing as minimum wage or right to work laws or non-discrimination laws, and employers should be free to create whatever sort of interaction they wish with their employees. But that is clearly some other universe than the one we live in.

            If Hobby Lobby declares all of its employees “independent contractors”, can it then avoid the requirement to provide health insurance covering contraceptives, or does a Federal court then declare Hobby Lobby’s declaration a ruse and compel the owners to provide the insurance anyway
            The _owners_ of Hobby Lobby aren’t being compelled to provide insurance. Hobby Lobby _the person_ is being compelled to provide insurance. (Technically, it is being compelled to purchase insurance from a insurance provider. It doesn’t ‘provide’ insurance.)
            If the owners are really hell-bent on ‘not paying for contraception’, I don’t understand why the company don’t just ask their CFO to cut the check to the insurance company or something. I mean, shouldn’t he be doing that anyway? The owners do actually understand that corporate money is not _their_ money, right? (If not, has anyone looked at the taxes?) This doesn’t sound like one of those companies that is small enough that the only owners are the ones who write the checks.
            Seriously, it’s like half the political spectrum has entirely lost track of how corporations work.

          • good_in_theory

            Just to note this important point again: Hobby Lobby is not actually being compelled to purchase insurance. To be precise it is being prevented from passing a set of benefits off as health insurance for the purpose of meriting certain Federal standards, for both corporations and individuals. At worst, the Federal government is extending a set of privileges (health insurance tax incentives) in a way that discriminates against particular religious beliefs. But that claim relies on their actually being some sort of meaningful discrimination going on – which isn’t the case.

            The only people compelled to get insurance are individuals, and the only way individuals are being compelled with respect to abortion is that they must get a health insurance policy which allows them to elect to use abortion if they so desire.

            Being “compelled” to have an option you don’t like and probably won’t use (as if, given how often pro-lifers get abortions and Catholics use contraception) is a rather weak sauce variety of “compulsion”.

            Similarly, corporations, if they desire to elect to provide health insurance, are only compelled to get a health insurance policy which allows their employees to elect to use an abortion if they so desire.

            Being “compelled” to “preserve” a choice your employees would have regardless of whether or not you chose to give them health insurance and over which you have no control regardless is also a pretty weak sauce variety of compulsion.

          • martinbrock

            The second. But that’s already obviously the case in almost every possibly way.

            I agree, as a matter of fact, that states behave so and that the behavior is obvious. States obviously cage millions of people too, often for nothing more than possessing or selling a plant, but this fact is not an argument in favor of caging millions of people.

            Only one uni-verse exists by definition; however, a world without millions of people caged for all sorts of reasons offensive to me is certainly imaginary. I like to imagine it. Call me an abolitionist.

            The distinction between compelling a corporation and compelling its owners is not relevant to my point, so you may characterize the compulsion however you like. Everyone potentially involved in the forbidden association is forbidden from associating so, including shareholders, employees, vendors, consumers and others.

            None of these people may live as they choose. Their preferences are not respected, and simply tolerating their preferences does not prevent others with other preferences, including people who want to use contraceptives, from living as they prefer as well. I prefer a world in which people may live as they prefer, even if I don’t live in this world now.

          • good_in_theory

            Except their preferences are respected. They merely aren’t extended the privilege of classifying whatever in-kind benefit they offer as health insurance, for regulatory purposes. Employers aren’t required to offer their employees health insurance.

            The preference that is not respected is the preference of an individual to forego acquiring what the federal government classifies as health insurance. But no one is forced to elect to undergo any particular procedure their health insurance might cover.

          • Les Kyle Nearhood

            A distinction without a difference. What was allowed to be called insurance yesterday is suddenly forbidden because of a political calculation on the part of government.

          • good_in_theory

            What an empty complaint. The government defined what counts as conforming health insurance! This includes some things called health insurance and excludes others! Oh no! The university I attended years ago did this as well, because it required students to have health insurance, and had a set of standards for what counted. So what? This is a necessary consequence for any requirement to mean anything. You can call an apple-of-the-month club health insurance if you feel like it – that doesn’t mean others have to count it as health insurance.

          • martinbrock

            Particular employers are required to offer insurance or to pay a fine, and individuals are required to pay for elective procedures that they don’t want for themselves and don’t want to provide to others.

          • good_in_theory

            Hm, egg on my face. Last night I was looking at employer mandates and the site I consulted said specifically that no company was required to provide health insurance. It must have been out of date.

            But no, no one is forced to pay for elective procedures they don’t want or want to provide for others. If one wants to keep their money clear of sin, they best give up money. I wouldn’t be surprised if there is not a single Catholic who has not paid someone money who directly used that money for the purchase of contraception or an abortion.

          • martinbrock

            However you rationalize it, forcing people to associate on terms imposed by you is not necessary for you to associate on these terms. I’m not sure why people can’t live and let live, but they obviously can’t. You imagine that your imposition of pro-contraceptive policies is somehow more “just”, “right”, “proper”, “noble”, even “liberating”, but in reality, you’re as motivated by an instinctive need to dominate as someone seeking through a state to prohibit corporations from offering contraceptives as a fringe benefit to all employees.

          • good_in_theory

            But the question I’m interested in is not whether or not government policies do or do not enhance liberty, it’s whether the concerns expressed merit special exemption because the policy demands something of Catholics in excess of the (right or wrong) demands it makes upon everyone else.

          • martinbrock

            Permitting people who prefer not to use contraceptives or contribute to their use requires an “exemption” only if a state first imposes a requirement on everyone to contribute to their use. The general imposition is not necessary to entitle others to use contraceptives, so no exemption is necessary either. It’s an arbitrary construct rationalizing a state’s imposition of your will on others.

          • good_in_theory

            And hence no exemption is required, because the state isn’t requiring anyone to contribute to the use of contraceptives. People believing they are being required to do something doesn’t mean they actually are being required to do it.

          • adrianratnapala

            So when the state fines a business for not contributing to the use of contraceptives, that doesn’t count as the “state requiring anyone to” …?

          • martinbrock

            If I must purchase insurance from a pool that must cover contraceptive costs, I am required to contribute to the use of contraceptives. That the state must exempt Hobby Lobby from fines for failing to contribute to the costs implies to this requirement.

          • good_in_theory

            Paying people money pays into a pool that must cover contraceptive costs. Calling this “contribution” is elective sophistry.

          • martinbrock

            No. It’s not sophistry. It’s what the words commonly mean. If I pay into a fund financing a minister’s salary, everyone including the minister agrees that I contribute to his salary.

            Asserting that I do not contribute to the costs of contraception when I pay into a pool paying for these costs is sophistry. Find me any other context in which people use the word “contribute” as you do here.

          • good_in_theory

            It is sophistry to elect to highlight contribution in this context, when this context is identical to numerous other contexts where one fails to complain about contribution. Contribution is a weaselly word. I “contribute” to just about everything, by the mere fact that money circulates. What is sophistry is to *elect* to emphasize one’s “contributions” in some contexts but not others not others for no good reason.

            What’s being sought is a case for why the “contribution” Hobby Lobby is being asked to make is more serious than the contributions they already make without complain. What is being sought is what distinguishes the “contribution” engaged in here from other “contributions” that are completely innocuous.

            The claim is that the sort of contribution required here is more morally serious than the other contributions Hobby Lobby makes all the time without complaint. Hobby Lobby “contributes” to whatever decisions its employees elect to make on their private time by paying them. What distinguishes contribution to health insurance from this variety of contribution?

          • martinbrock

            In what context do I fail to highlight contribution?

            You don’t contribute to everything because money circulates in my way of thinking, and this usage of “contribution” is incredibly uncommon sophistry. People commonly distinguish your money from other money and say that you “contribute” to something when you spend your money on it. Once you’ve spent money, people say that it’s no longer your money, so any subsequent expenditure of the same money is not your contribution.

            If Hobby Lobby makes a contribution without complaint, I have no problem with that. Hobby Lobby’s preference for some contributions over others is the whole point here. That Hobby Lobby complains about the contribution we’re discussing and not about other contributions is precisely the distinction that bothers me.

            No. The claim is that Hobby Lobby decides how morally serious a particular contribution is to Hobby Lobby, and you don’t. That you think the contribution not morally serious is irrelevant.

            Again, a Hobby Lobby employee’s “contribution” is not Hobby Lobby’s contribution in common parlance. On the contrary, when Bob Cratchit calls Scrooge “the founder of the feast”, far from agreeing, Bob’s wife chastises him severely for confusing Scrooge’s contributions with his own.

          • good_in_theory

            The question is when Hobby Lobby elects to highlight its own contributions.

            My use of contribution is quite common. It is the basis behind all sorts of boycotts of people and industries which provide things people want while engaging in practices they find distasteful. Some people boycott Chick-Fil-A because they view giving them money as contributing to homophobia, even though buying chicken per se has nothing to do with homophobia.

            What bothers me is the notion that one’s sincerity of belief that they are being aggrieved is sufficient justification for acting as if they are actually being aggrieved. I made precisely this point when this same issue was doing the rounds with the Catholic Church. Sincerity and intensity of belief are not sufficient grounds for granting an exemption, if legal requirements are meant to actually require anything.

            Hobby Lobby’s employees contribute to health insurance by taking a part of their compensation as health-care. They then elect to contribute to abortion by making private decisions about their use of said health-care. Hobby Lobby merely contributes to its employees compensation. Any specific use of that compensation is on the employee, not Hobby Lobby.

      • good_in_theory

        Well, dissolving the corporation and turning into a sole proprietorship or general partnership doesn’t exactly free one from regulation. You’re as exposed to many regulations as if you were a corporation.

        But the basic fact of the matter remains that no business is required to provide health insurance as a benefit of employment. They are free to leave their employees to the individual exchanges.

        • DavidCheatham

          Well, dissolving the corporation and turning into a sole proprietorship or general partnership doesn’t exactly free one from regulation. You’re as exposed to many regulations as if you were a corporation.

          Not really.

          Strictly speaking, _everyone_ is, currently, a ‘sole proprietorship’. Every single person is subject to all laws of a sole proprietorship at all times.

          Of course, none of these laws are relevant unless you actually do the thing that triggers the laws. Employment laws are relevant unless you employ someone, various safety laws aren’t relevant unless you sell things, store laws aren’t relevant unless you have a place to sell out of, income laws are sorta always relevant, but not very important if you don’t have an income.
          This issue, being about employment, is indeed something that is not strictly an issue of corporations, and that should indeed be discussed.
          But my point here was that, as Hobby Lobby is a ‘person’ created by the government, it seems demonstrably absurd to argue it has any rights at all. It doesn’t even have the right to continue to _exist_.

          • good_in_theory

            I’m not sure why you started with not really, as your point is perfectly consistent with what I said. Sole proprietorships, partnerships, and corporations are all alike in that there exist a set of regulations which they may face contingent on their choice to behave in a particular way. There are many ways in which they are unlike, but the behavior-contingent regulation for some subset of regulations isn’t one

            As to Hobby Lobby’s rights, while it’s fine to say that state created entities exist at the whim of the state, I don’t think this means *how* they exist once created is entirely a matter of whimsy. The government may very well be restricted in how it treats the entities it creates, in line with restrictions on how it is able to exercise its powers.

  • DavidCheatham

    Notice that everyone accepts this reasoning when it applies to churches. You simply cannot force a pastor to pay for abortions for his secretary on the grounds cited. What’s more, most people agree that you simply cannot force a non-profit charity director of a Christian mission to pay for abortions for his secretary on the grounds cited.

    Everyone does not accept this reasoning. I don’t.

    In fact, that’s most of what got us into this nonsense in the first place.

    BTW, ‘a pastor’ isn’t paying for anything. A _corporation_ (the church) is paying _another_ corporation (an insurance company) to compensate _yet another_ corporation (a medical provider) for an abortion if one occurs.

    Which actually seems slightly _less_ direct as a corporation paying a natural citizen a salary, and that natural citizen purchasing an abortion from a corporation. You know, like what happens otherwise.

    Anyway, if a church, aka, a community of believers, wish to incorporation, they have to follow the rules that corporations have to follow, just like everyone else who incorporates an entity. Nobody made them do that.

    Hell, this doesn’t just include laws about health insurance. Corporations are barred from religious discrimination. That means they don’t even have the right to demand their pastor be the correct religion. They can make him _preach_ the correct religion, and even only hire someone who is credentialed in doing that, but they can’t refuse to hire him because he’s a member of another religion.
    Don’t like it? DON’T FORM A CORPORATION, you twits.

    No one has some sort of right to have corporations take any shape they want them to take. Likewise, no one actually _needs_ a corporation to do anything.(1)

    It seems kinda weird that libertarians have not figured out that the rather obvious problem here is not ‘government regulation’, it is the fact that all these entities deliberately put themselves _under_ government regulation by incorporating.
    Instead, you guys wander around promoting weird exceptions to government regulations, which rather obviously run quickly into complete absurdity.

    1) And, just as relevantly, even if they form a corporation, for example to make joint ownership of a building easier, no one is forcing that corporation to _hire_ people. Not hiring people would, rather obviously, make any employment laws completely irrelevant.

    • good_in_theory

      Well, as the law stands religious organizations aren’t barred from religious discrimination by title vii. They can favor their adherents. And it’s possible to discriminate on religious grounds if the reason for discrimination is integral to the job. I’m not sure why a corporation would hire a pastor, but there’s a ministerial exemption so they could probably be picky if they wanted to hire a Hobby Lobby chaplain or something.

      And in general under Title vii, employers with less than 15 employees can also be discriminatory in whatever way they please. So one can form a corporation and discriminate, things just change when the corporation becomes larger and relatively impersonal.

      • DavidCheatham

        Well, as the law stands religious organizations aren’t barred from religious discrimination by title vii. They can favor their adherents.

        I don’t think you understand where I was coming from. I know there are exceptions in the law. I was asserting those exceptions are _wrong_. They are creating a government establishment of religion.

        And it’s possible to discriminate on religious grounds if the reason for discrimination is integral to the job.

        …I’m not sure that entirely makes sense. It is, indeed, legal to discriminate for otherwise illegal reasons if such a thing is actually _needed_.

        I.e., just like a theatre company can refuse to hire a black Desdemona or a white Othello, because that is not what the role calls for, a Catholic church could, conceivably, refuse to hire a Baptist, because only an ordained Catholic priest can give confession. (And other stuff, whatever.)

        OTOH, I’m not entirely sure the government should be able to recognize a ‘need’ created by a religion like that. And I’m not sure how a Catholic church could demonstrate that need _without_ attempting to make a religious argument.

        I’m not sure why a corporation would hire a pastor, but there’s a ministerial exemption so they could probably be picky if they wanted to hire a Hobby Lobby chaplain or something.

        Erm, all churches have pastors (Or whatever), most of those positions are paid, and almost all churches are corporations. (Which, as I pointed out, is their own choice. So is, in fact, paying their pastor.)

        • good_in_theory

          “I know there are exceptions in the law. I was asserting those exceptions are _wrong_. They are creating a government establishment of religion.”

          Hmm, I’m not sure if you’re arguing against the exemptions to the civil rights act or the ad hoc exemptions to the ACA. I’m talking about the former. So do you think the religious and ministerial exemptions to the civil rights act ought to be removed?

          “OTOH, I’m not entirely sure the government should be able to recognize a ‘need’ created by a religion like that. And I’m not sure how a Catholic church could demonstrate that need _without_ attempting to make a religious argument.”

          So the question would then seem to me to be, “ought the Church be allowed to have needs grounded by religious reasons.”

          If there’s going to be law against religious discrimination in employment, I don’t see how you can avoid being incredibly anti-religious if you don’t exempt religious institutions from the law. Maybe that’s what you want, but that seems a bit extreme. I may not much like it, but religious people ought to be able to make a living advancing their religion, if they so desire.

          “Erm, all churches have pastors (Or whatever), most of those positions are paid, and almost all churches are corporations. (Which, as I pointed out, is their own choice. So is, in fact, paying their pastor.)”

          But the “corporation” part here doesn’t strike me as relevant. What’s relevant is the status of being a “religious organization” – e.g. being oriented towards ministry and proselytizing. To repeat, I guess, the question is whether there ought to be any religious exemption whatsoever.

          • DavidCheatham

            Hmm, I’m not sure if you’re arguing against the exemptions to the civil rights act or the ad hoc exemptions to the ACA. I’m talking about the former. So do you think the religious and ministerial exemptions to the civil rights act ought to be removed?

            I’m willing to be convinced that the exception for a religious leader is reasonable under the grounds that the position itself does seem to require someone of the correct religion.

            But that doesn’t mean a religious organization should be free to discriminate in hiring for _all_ positions. Which has something the courts have recently started sliding towards.

            I think religious organizations, if they want a position covered by an exception to the civil rights act, that position should be required to spend _at least_ half of their time ‘on the clock’ discussing the religion with others in some manner.

            You can’t do things like assert the pianist is covered under the exception, as recently was upheld by the courts. And almost no teachers at religious schools would count.

            So I’m okay with an exception there. I’m not okay with the _current_ exception, and especially not okay with how it is being expanded under the law.

          • DavidCheatham

            Oh, and I’d like to make it clear that I would only allow _religious_ discrimination. No other kind. Because only that is reasonable ‘necessary’.
            If some sort of racist church wants only a white preacher, that’s fine. They should feel free to invite him to preach. But they can’t _hire_ him.
            Of course, they may demand some sort of intolerance as part of their religion, so it seems unlikely that people of that religion would be any other race, so the only applicants they’re going to get will probably be white, so that’s almost moot.
            But if a just-as-credentialed and charismatic black man shows up who has joined a black-hating religion and he’s willing to stand up there and teach how black people are all children of Ham or whatever, he gets a fair crack at the job.

    • Kevin Vallier

      Wow. So you’re prepared to destroy religious exemptions entirely for any incorporated body?

      • DavidCheatham

        I’m not ‘prepared’ to do that, as I have no power to do that.
        However, in the sense I think you mean, _yes_, I do argue that there should be no exceptions to the non-discrimination laws for any corporation, regardless of whatever purpose they exist for.

        Please note this is only relevant to _employment_. (And obviously they shouldn’t be able to claim other exemptions to employment law like Hobby Lobby is trying to.) Corporations can have a religious _purpose_ if they want, I have no problem with that.

        And, as good_in_theory pointed out, there are exceptions to non-discrimination laws for _required_ traits. I.e., the entertainment industry can discriminate based on race, if the job cannot possibly be done by someone in a wheelchair they can discriminate based on handicap, etc.

        So it’s hypothetically possible that some sort of argument that actual religious leaders need to be of the correct religion, that such a thing is an actual job requirement. And I’d be willing to accept that rule codified into law. (Discrimination on other employee positions, OTOH, should not be allowed, nor should the dodge of attempting to claim that all employees provide ‘religious guidance’.)

        And _that’s it_. No exceptions from any other employment law. Churches can demand the guy they hire to preach be the correct religion. They can’t demand the secretary or janitor be it.

        And before you ask, this has almost no relevance on taxes. All non-profits are except from income tax (Duh) and all _charities_ have tax-exempt donations. That is perfectly fine.

        • Libertymike

          Why shouldn’t the church demand that the janitor or the secretary be the right religion? Should that decision be left to the church or to you and me? Is not the church in the better position to make this decision?
          In a free society, associational rights should trump anti-discrimination considerations.

  • Herb

    “why is a closely held for-profit corporation any different than a small
    business, a religious non-profit or a church?”

    The answer is baked into the question. Unfortunately, there is no way to go into the differences between a “closely held for-profit corporation” and a “religious non-proft” without being pedantic about it.

    Suffice it to say the differences exist, and they are not arbitrary.

    “Why is seeking a profit on
    a large scale sufficient to restrict rights of religious conscience in
    cases where no significant burden is present?”
    Actually, the scale isn’t “sufficient.” The corporate structure is. Despite being “closely held,” Hobby Lobby is still a corporation. In other words, Hobby Lobby is a “legally separate person” from the Green family. Are we to allow them to pick and choose when this separation suits them?

    No doubt the Greens are not prepared to be personally liable for slip and fall lawsuits in their stores, but we’re supposed to make room in the company for their personal religious beliefs?

    At any rate, it’s somewhat amusing to read libertarian defenses of Hobby Lobby, especially considering that absent our government’s controlled substances regime, they would have no mechanism (or legitimate reason) for involving themselves in their employees’ contraception.

    • DavidCheatham

      The answer is baked into the question. Unfortunately, there is no way to go into the differences between a “closely held for-profit corporation” and a “religious non-proft” without being pedantic about it.

      I find it vaguely strange that somehow all the middle ground doesn’t exist.

      There are plenty of closely-held non-profit charity organizations out there. Some museums, for example, there are like 5 directors on the board, the board is the entirety of the membership and you have to be invited on, and they’re all family or friends of the family.

      And _those organizations can’t discriminate on the basis of religion_.

      At any rate, it’s somewhat amusing to read libertarian defenses of Hobby Lobby, especially considering that absent our government’s controlled substances regime, they would have no mechanism (or legitimate reason) for involving themselves in their employees’ contraception.
      Absent our government, they literally would not exist at all.

  • http://www.anarchocapitalism.us/ Ethan Glover

    There’s no issue here. You can’t tell people what they can and can’t sell and you can’t tell insurance companies what they can and can’t sell.

    • good_in_theory

      But you can tell people what does or doesn’t meet your standards for qualifying for some benefit.

      • http://www.anarchocapitalism.us/ Ethan Glover

        I have no idea what you’re talking about.

        • good_in_theory

          Well I’m not entirely sure what you were talking about. Quite obviously one can tell someone what they can or can’t sell. The question is whether one can enforce such an order and whether they ought to. The government is somewhat effective at restricting what people can and can’t sell.

          What they have much more control over is deciding whether what someone sells meets some standard they set. Which is what they are doing. You can sell whatever kind of health services you want, within limits (euthanasia remains off the table, for example). But only some of those health services will qualify as health insurance for the purpose of federal penalties and benefits.

          • http://www.anarchocapitalism.us/ Ethan Glover

            If you don’t know what I’m talking about, try asking something specific instead of ranting about your own unrelated personal beliefs.

          • good_in_theory

            Well then what do you think you communicated by saying there’s no issue here because ‘you can’t tell people what to sell.’

            I interpreted this as begging the question that the issue in question involves telling people what to sell. It doesn’t do this. That’s not a matter of opinion, it’s a matter of fact. The law defines what sorts of things meet a standard. No one has to sell things to meet that standard.

          • http://www.anarchocapitalism.us/ Ethan Glover

            What issue in what question?

  • Xeno_of_Citium

    I believe Hobby Lobby is open to covering some birth control just not all the methods the ACA mandates. So as a practical matter the burdens on female employees is relatively slight.

    • martinbrock

      There is no burden on female employees, because 1) females need not work for Hobby Lobby, and 2) female employees of Hobby Lobby need not obtain insurance through an employer sponsored health insurance and 3) employees need not obtain contraceptives through a health insurance policy at all.

      Furthermore, an entitlement to contraceptives is not an entitlement of females specifically. All the talk of “protecting women” through this policy is an appeal to the emotions for political purposes.

    • good_in_theory

      But the burden on Hobby Lobby is even slighter, and Hobby Lobby must reasonably accommodate the religion of its employees so long as it does not impose an undue hardship on the conduct of the employer’s business. Further it has a duty not to discriminate among its employees on the basis of their religious beliefs, or lack thereof.

  • Jaylib

    There is no difference. The right to follow one’s conscience is not restricted to the four walls of the church — nor only to the religious.

    Of course the whole premise that the feds can force any organization or individual to buy anything — whether against conscience, business judgment, or personal preference — is itself lawless tyranny.i don’t give a flaming fart what Roberts said.

    Mass civil disobedience will get the point across.

  • mikewaz

    I can’t believe this is even a debate. Health insurance provided through an employer is nothing more than a form of compensation for an employee doing their job, just like a paycheck. It is my property. Period. If my boss tried to tell me that they’re a Muslim and that means I can’t spend a portion of my paycheck on non-Halal foods, I think even the least rights-respecting among us would call that ridiculous and almost tyrannical. So why would the most rights-respecting among us let my Christian boss tell me I can’t spend a portion of my paycheck on contraception?

    • martinbrock

      If your health insurance were your property, we wouldn’t be having this debate, because you would be choosing the coverage you wish to purchase and the insurance pool/mutual aid association you wish to join yourself.

      • mikewaz

        Can Hobby Lobby, meaning the corporation proper, take one of their employees’ health insurance plans and use it to pay for a physical? Can they use it to pay for cancer treatment? Can they use it to pay for open heart surgery? Of course they can’t! Apart from the fact that they can’t suffer from medical problems, the employee’s name is on the policy as the beneficiary. That clearly labels it as their property.

        And to answer your other question, if my employer tried to replace part of my paycheck with food coupons redeemable only for Halal foods and they didn’t change their mind after a conversation about how such a policy violates my rights, I would promptly lawyer up and sue the pants off of them for violating my property rights and my right to ethical independence.

        • Theresa Klein

          So you think it should be illegal for employers to compensate people with Halal food coupons? Or that it should be illegal to reduce your wages?

          If you don’t like how your employer chooses to compensate you, don’t work for them.

          • good_in_theory

            Well, it is illegal for employers to discriminate against their employees on the basis of their religious beliefs or the lack thereof. Paying people in scrip that can only be used for things of which you approve disparately favors people of one’s own religious beliefs against those who lack said beliefs.

          • Theresa Klein

            Okay, then it should be illegal to pay people in Berkshares.

          • good_in_theory

            Berkshares are easily convertible to dollars. There’s a fixed exchange rate, IIRC.

          • Theresa Klein

            So you could sell your Halal coupons to a Muslim.

            People convert foodstamps to dollars easily enough.

            Or just work out an arrangement with the Halal food store where you give them the coupons in exchange for cash.

        • martinbrock

          That a policy has a beneficiary does not imply that the policy is property of the beneficiary. I can own a life insurance policy with someone else as a beneficiary, and someone else can own a policy insuring my life with a third party as a beneficiary.

          I don’t know why you’d have any luck suing an employer for replacing part of your compensation with Halal food coupons, unless you have a contract saying that your monetary compensation can’t be cut or something. I’m assuming that you don’t.

    • Theresa Klein

      If you don’t like it, buy your insurance yourself. Nobody is forcing you to accept your employer’s “free” benefit.

      • Kurt H

        Sorry, but you are being forced. Given the tax breaks, the cost of employing you for (wages + insurance) is less than the cost of employing you for (wages + cash equivalent of insurance). Thus, taking a job without health insurance inherently means a pay cut. Personally, I don’t think we should link insurance to employer’s like this — but given that we do, I think its entirely reasonable to prevent employers from abusing the leverage this gives them over an employee’s personal life.

        • Theresa Klein

          The fact that it’s cheaper for you to get your insurance through an employer doesn’t mean you are being forced to purchase it that way.

          Otherwise, the penalty-tax would be unconstitutional.

          The correct thing to do is stop giving favorable tax treatment to employer-based insurance.

          • Kurt H

            Come on, don’t pretend you don’t understand the point. The state is responsible for the pay cut, just as much as it is “forcing” Hobby Lobby to pay for real insurance. Why is it more preferable to inconvenience employees of Hobby Lobby than it is to inconvenience the employer? Who has more power and whose ability to act as they see fit is impaired more? The answer is obvious. The cost of contraception to the employer is negligible by comparison to the cost to the employee.

            Now I do agree that we should stop giving the tax break for employer-based insurance. But that’s a separate issue. In the context of such a tax break, giving employers the power to give employees crappy insurance and putting the burden on employees to seek other employment is just plain cruel.

          • Theresa Klein

            Being forced to do something that violates your conscience is an “inconvenience” ?

            Being forced to do something that violates your conscience is “a negligible cost”?

            Compared to what? Spending $20/month to pay for it out of pocket?

          • Kurt H

            The employer pays for it either way (wages or insurance). One way gets them a tax break. Their “conscience” is violated regardless. The only difference is the cost. Hobby Lobby isn’t trying to preserve their morals, their trying to impose a cost on employees who don’t share their morals. Government should not facilitate that. The establishment clause trumps free exercise.

          • Theresa Klein

            You shouldn’t presume to tell other people how their religious beliefs ought to be interpreted.

            If they feel that paying for it directly violates their religious faith, but giving the employee money to spend as they wish does not, that’s their perogative.

            In any case, Hobby Lobby is not being offered the OPTION of paying their employees extra money to purchase birth control with (if they choose).

          • Kurt H

            You can have any beliefs you like, but laws should be based on actual impacts. If your beliefs lead you to hurt other people, I couldn’t care less how passionately you believe them.

            What if your religion believed hard work was good for young children? Does that mean you can form a company that violates child labor laws? That’s the absurd type of conclusion that results from religious belief being used to cancel laws. Religious liberty does not convert the legal system into an options menu.

          • Theresa Klein

            It is a very thin thread you are on when you say that not purchasing insurance coverage for contraception on behalf of others, so they can get a tax break on it “harms them”.

          • Kurt H

            I think you might be confused as to how the system works, otherwise you wouldn’t have made that comment. Simple version:

            An employer could pay $100 in wages, or they could pay $80 wages + $20 insurance. Assuming a tax rate of 20%, the employee gets $80 net in the first case and $64 + $20 of insurance in the second case. In order to give the employee the ability to BUY $20 insurance plus the $64, they would need $105 in wages. Thus, it is cheaper for the company to pay $80 + $20 insurance than it is to pay the equivalent wages. Companies that offer insurance can out-compete companies that don’t on the labor market. In other words, the tax incentive for providing insurance cuts the cost per worker by $5.

            So what Hobby Lobby is saying is that they want the government to cut their per worker costs for them AND they want to reserve the right to determine what counts as insurance. Why do you want to give Hobby Lobby that kind of power? Especially since, as pointed out numerous times, Hobby Lobby will pay for “immoral” medical care regardless of whether they pay wages or insurance. The only person whose situation actually changes is the worker who has to pay extra for certain kinds of medical care.

          • martinbrock

            If the employer pays either way, why does an employer impose anything on employees by paying them in cash rather than a health insurance policy with specified benefits? The establishment clause requires employers to pay employees in health insurance with benefits specified by statute? Does it require employers to pay employees in food coupons with a diet specified by statute? How about automobile coupons with automobile size and color specified by statute?

          • good_in_theory

            The statute doesn’t specify the benefits people actually receive, it specifies the benefits they have the option to receive – just as food stamps don’t specify a particular diet, but specify the options one has for one’s diet.

            When options become constrained so much that they become more or less a Hobson’s choice is something of a sorites issue.

          • Kurt H

            Do the math. The cash equivalent of health insurance is taxed, while the insurance isn’t. Thus, if the employer pays the employee the equivalent cost *to them* (which is how markets work) they will be underpaying the worker relative to giving them the insurance. The employer essentially docks the wages of employees who are not in compliance with the employer’s religion.

            Now if you want to argue that government incentives for particular types of employment benefits create all sorts of weird problems like this — I completely agree. But the matter under question is whether, GIVEN the tax incentive, that incentive can be used as a means for employers to control employees beyond things that are job-related.

            Also, your examples are inapplicable, since we’re not talking about the government mandating restricted options, but mandating the availability of options. The correct analogy would be a Jewish employer objecting to paying for food coupons that could be used to buy pork, while still wanting the tax break for paying some of the compensation in terms of food coupons. As soon as you frame the analogy correctly it becomes blatantly obvious who is abusing the law.

            I agree that the tax benefit for health insurance is dumb policy, but don’t make it worse by granting employers the power to define what constitutes a “valid” health care expense.

          • good_in_theory

            Well then the fact that it’s cheaper for Hobby Lobby to provide health insurance it morally disagrees with than it is to pay the penalties for not complying with the employer mandate doesn’t mean they’re being forced either.

          • Theresa Klein

            No, but then they are being taxed for exercising a disfavored religious belief.

  • martinbrock

    I sympathize with Kevin’s argument for personal moral sovereignty, but the best arguments against incorporating every conceivable cost associated with health into compulsory health insurance are more practical. Somehow, in this country, contraception and a reliable erection are essential rights, and expecting individuals to bear the cost directly is unthinkable, but food, clothing and shelter are a different matter. As a consequence, a corporatist, health care-industrial complex is incredibly wealthy and powerful, and health care costs are incredibly inflated.

    http://www.kcrw.com/news/programs/in/in130925singapores_4_percent

    • Les Kyle Nearhood

      Unfortunately we lost that argument a long time ago. For whatever reason, every and any thing possible is now being called a basic health care right.

  • DougIndeap

    The question whether corporations ought to be treated as individuals with a right to religious liberty has grabbed attention, but a preliminary question is whether the health care law actually forces employers—corporate or not–to act contrary to their consciences.

    Employers may comply with the law by choosing either of two options: (1) provide qualifying health insurance plans or (2) do not provide such plans and instead pay assessments to the government. Unless one supposes that the employers’ religions forbid payments of money to the government, the law does not compel them to act contrary to their beliefs.

    The second choice does not amount to “violating” the law and paying a “fine,” as some suppose. As the law “does not explicitly mandate an employer to offer employees acceptable health insurance” (http://www.ncsl.org/documents/health/EmployerPenalties.pdf), there is no such “mandate” to “violate.” Rather, the law affords employers two options, either of which is as lawful as the other.

    Nor are the assessments set so high that paying them would drive employers out of business, as some speculate. The law provides that if a “large employer” (i.e., one with at least 50 employees) chooses not to provide health insurance, it must pay assessments of $2,000 per year per employee after the first 30 employees. That is much less than an employer typically would pay for health insurance. Small employers would pay no assessments at all. Because of this potential saving and because the law affords individuals realistic opportunities to obtain insurance on their own, many employers are considering this option–for reasons entirely unrelated to religion. (http://online.wsj.com/article/SB10000872396390443437504577545770682810842.html)

    In recently issued commentary on the various options of employers, the National Catholic Bioethics Center acknowledges, albeit grudgingly, that the option of not providing health insurance and instead paying assessments is “morally sound.” While also considering this option “unfortunate” in that the insurance employees would find on their own would include coverage the Center deems objectionable, the Center concludes that the employers’ “moral connection” to that coverage would be “remote.” https://ncbcenter.org/document.doc?id=450&erid=194821

    Bottom line: Employers are not forced by the law to act contrary to their consciences. Rather, as recognized by even those who object to some aspects of the insurance the law makes available, the law affords employers with similar objections the morally sound option of not providing such insurance and paying assessments instead. Employers seeking exemption from the law aim not for religious liberty for themselves (they already have that), but rather for power over their employees.

    • Theresa Klein

      It would be a straight-forward violation of religious freedom to tax people for exercising a religious belief.

      • DougIndeap

        Law draws many lines and affords people many options and attaches various consequences to those lines and options. If someone crosses one or another line or chooses one or another option, claiming religious reasons, should he or she be able to avoid the otherwise legally prescribed consequences? If so, I foresee an upsurge of religiosity.

        • Theresa Klein

          Because everyone turned Quaker to get out of the draft?

  • Theresa Klein

    From a legal perspective …

    My opinion is that the fact that government mandates health insurance be provided by employers means they can’t also place conditions on the type of insurance that violate religious objections.

    In other words, the government can EITHER mandate that corporations provide health insurance to employees OR they can mandate that it cover contraception, but not both.

    Hobby Lobby could in theory escape from the contraception mandate by not buying insurance. But since the mandate is enforced through a tax penalty, this would be equivalent to taxing people for exercising disfavored religious beliefs. They could resolve this by carving out an exception to the employer mandate. Hobby Lobby could thus opt out of paying for health insurance, not pay a penalty, and thereby escape from the coverage mandate.

    • DougIndeap

      That is basically what the government has done in the accommodation it announced–that religious employers would be free to provide health plans with provisions to their liking (yay!) and not be required to pay the assessments otherwise required (yay!).

      Nonetheless, some continue to complain, fretting that somehow the services they dislike will get paid for and somehow they will be complicit in that. They argue that if insurers or employees pay for such services, those costs will somehow, someday be passed on to the employers in the form of demands for higher insurance premiums or higher wages. They evidently believe that when they spend a dollar and it thus becomes the property of others, they nonetheless should have some say in how others later spend that dollar. One can only wonder how it would work if all of us could tag “our” dollars this way and control their subsequent use.

      • Theresa Klein

        The government hasn’t given Hobby Lobby an exception from the employer mandate, or the contraceptive mandate.

        They have given certain religious *institutions* (not corporations) the opt-out of the contraceptive mandate. That doesn’t apply to Hobby Lobby, as a for-profit private business. They haven’t given anyone an opt-out from the employer mandate as far as I know.

        • DougIndeap

          You’re right, the scope of the accommodation would not reach Hobby Lobby (though even those who would be covered continue to complain).

          As for paying a penalty or assessment, two thoughts: 1. The assessment prescribed in the law is less than the average cost of employee health insurance, so employers choosing that option would actually save money over the other option–some “penalty.” 2. Besides, when the legislature provides exemptions or otherwise accommodates conscientious objectors, it need not offer them free passes. It may require them to pay or do something instead. For instance, in years past, we have not allowed conscientious objectors simply to skip military service for “free”; rather, we have required them to provide alternative service in noncombatant roles or useful civilian work.

    • good_in_theory

      There is no individual exemption to the contraception mandate, though. I’m not aware of any legal challenges to it. If they can do both w/r/t the individual mandate, why should it be any different for the corporate mandate?

      Of course, one could simply say they shouldn’t be able to do it with the individual mandate. But being required to have the option to do something of which you disapprove is not at all the same as being required to do something of which you disapprove.

      • Theresa Klein

        There are religious exemptions to the individual mandate.
        Not ones specific to objections to contraception, but there is a difference between being compelled to buy something FOR ONESELF that one has no intention of using (as bad as that is IMO), and being compelled to buy something FOR OTHERS that they may use, that one has moral objections to.

  • TracyW

    The whole line of thinking seems very odd to me. If you or certain family members have a job with health insurance, then it’s a violation of your rights to expect you to pay for your own contraception, but if you don’t, then c’est la vie?
    (Incidentally, in NZ when I was at university I paid for primary care including contraceptives out of pocket but the government covered hospital care).

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  • TheTracker

    It seems indicative of the overall shoddiness of the argument that the actual matter at issue — contraception — is quickly and unceremoniously abandoned in favor of an inflammatory and inaccurate comparison to abortion.

    “Setting out to make money should not disqualify anyone from religious liberty”

    Funding contraception does not restrict religious liberty, any more than a taxpayer-funded military restricts the liberty of pacifists. It shouldn’t be assumed that because society provides certain exceptions to certain laws as they apply to, say, churches, that those exceptions represent baseline religious liberty. That doesn’t follow.

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