“I’m not a. . . ” Jon Stewart recently did a montage of statements from politicians in which they declared repeatedly what they are not. “I’m not a legal scholar, but. . . ” I’m not a professional chef, but. . . ” “I’m not a climate scientist, but. . . .” It was a funny bit. Obviously, the point of saying “I’m not a. . .” is to insist, against all evidence, that a person nonetheless has something cogent to say on a subject in which s/he isn’t actually expert, with the amusing subsequent possibility of idiocy resulting. “I’m not a rocket scientist, but it seems to me that if we’re going to send astronauts to the sun, we should probably go at night.” That kind of thing.
Well, I’m not a legal scholar, but. . . ” I’m a playwright, with a Ph.D. in history. Uh, make that ‘theatre history.’ I’m not an attorney, a law student, a legal scholar. I’m a guy who writes dramatic entertainments, for fun and for profit. And I’m a guy who likes reading court decisions. I read Scotusblog.com for kicks. I like Supreme Court decisions basically because I like the logic of them, and I dig the prose. They’re not written in legalese, really. The language is accessible. So with all those caveats and disclaimers, understand that I probably don’t know what I’m talking about. But the recent Supreme Court decision in Burwell v. Hobby Lobby is really amazing.
First of all, let’s admit this: as big, for-profit corporations go, Hobby Lobby is one of the good guys. They don’t sell cocaine. They don’t sell missiles. They don’t sell smallpox diseased blankets. They sell crafts supplies. Check out their website. They have knickknacks you can use to spruce up your backyard patio. Cool stuff. And they treat their employees fairly. They pay double minimum wage for full-time new hires. They give lots of money to charity (well, Liberty and Oral Roberts Universities). They close the doors of their stores at 8, instead of 9, to give employees more of a family life. They close on Sundays. On a moral continuum from ‘contemptible’ to ‘Christ-like’, with the Tijuana drug cartel way over there on the left, and the American Red Cross on the right, Hobby Lobby’s over there towards the right, next door, but to the left of, Costco. Way to the right of, like, Walmart.
But now, because of Obamacare (shudder) (ironically), they have to provide health care for their employees, something they were already kind of doing. They’re run by the Green family; their CEO is David Green. And he’s a very religious guy. And he objected to paying to provide some kinds of birth control for his employees.
There are 20 different birth control medications approved by the FDA. 4 of them, including morning after pills and IUDs, constitute, in the opinion of some Christian traditions, de facto abortions. If ‘personhood’ begins at conception, then birth control methods that terminate post-conception zygotes would be, I suppose, sort of abortion-y. Those are the methods to which Green objected.
Here’s the logical chain of his objection, best I can ascertain it. The Religious Freedom Restoration Act of 1993 restricts the government from “substantially burdening a person’s exercise of religion.” The ACA (Affordable Care Act–Obamacare) required employers to provide birth control, and allowed the Department of Health and Human Services to define what, specifically, that meant. They declared that all 20 birth control options approved by the FDA were covered. Religious non-profit organizations, however, who objected to contraception mandates, were exempted. Hobby Lobby is a for-profit corporation mostly owned by one family, and run by members of that family. So Hobby Lobby can claim that it is a religiously oriented for-profit corporation, and that it should receive a similar exemption to the ones non-profits receive.
So that’s the first issue: can a for-profit corporation define itself as a person with religious objections to, well, anything? I wouldn’t have thought so. Who owns a corporation? Shareholders, officers, employees? Presumably a big variety of religious opinions are included within the ranks of ‘owners.’ This would be particularly true of a publicly traded company. But Hobby Lobby is not publicly traded. It’s owned by a small number of people, nearly all of them from one family, all of them religious. To quote Justice Alito (writing for the majority):
Finally, HHS contends that Congress could not have wanted RFRA to apply to for-profit corporations because of the difficulty of ascertaining the “beliefs” of large,publicly traded corporations, but HHS has not pointed to any example of a publicly traded corporation asserting RFRA rights, and numerous practical restraints would likely prevent that from occurring.
The belief of the Greens implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is immoral for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another. It is not for the Court to say that the religious beliefs of the plaintiffs are mistaken or unreasonable.
This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandate for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs. Nor does it provide a shield for employers who might cloak illegal discrimination as a religious practice.