Monday, June 30, 2014

Burwell v. Hobby Lobby

It seems strange to identify the cause of morality with the interests of a profit-making corporation. That this should actually be the case as a result of the government's ideologically driven contraception mandate is itself certainly a sign of the times - of our morally confused and conflicted, topsy-turvy times. 

I have not had time to read in its entirety today's Supreme Court opinion in Burwell v. Hobby Lobby, nor in any case am I qualified to analyze it as a constitutional lawyer would. I write, rather, as an ordinary citizen, with a strong personal commitment to - and obvious investment in - religious freedom. At issue in this case was the applicability of the 1993 Religious Freedom Restoration Act (RFRA), which was, I believe, itself a response to Justice Scalia's 1990 decision in Employment Division v. Smith, which held that accommodating religious beliefs was not obligatory in the case of "a neutral law of general applicability." In response, RFRA provided that "Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability." Faithful to RFRA, the Court today ruled that specifically such closely held corporations as Hobby Lobby (and Conestoga Wood Specialities, party to the other case also decided today, Conestoga Wood Specialties Corp vs. Burwell) may not be forced to violate their owners' religious beliefs by providing the contraception coverage mandated by ACA. 

The decision is limited to companies such as family-owned Hobby Lobby, which are "closely held," i.e., those defined by the IRS as having half their stock owned by 5 or fewer individuals. So this is not an expansive claim that large, impersonal corporations, e.g., General Motors, are also persons capable of religious beliefs.

Corporate involvement notwithstanding, this is certainly a laudable victory for religious freedom. That said, it remains, as I have repeatedly written here, a win in an unnecessary war. There was no need to tarnish the necessary and laudable provision of near universal access to health insurance with a demand that employers be forced to become instruments for the furtherance of a certain secularist ideology. 

It is also unfortunate that the terms of the debate have been framed almost exclusively in terms of religious liberty as a kind of opt-out from what would otherwise be generally applicable. That alone speaks volumes about where and how fast our society has moved. Providing protection for religious freedom in the form of exemptions from generally applicable laws may be a necessary self-defense for religious people in a rapidly secularizing society, but it effectively enshrines the secularist ideology as the normative one for society in general. (and, of course, it leaves un-debated the specific social policy question of the desirability of society's promotion of radical "reproductive rights.")

All of which once again points to the fundamentally flawed way in which we have gone about fixing access to health care. It was perhaps inevitable, given our polarized and dysfunctional politics, but it remains a problematic flaw nonetheless. I refer, of course, to the preservation of private insurance as the medium for providing citizens' access to health care, instead of the obvious and much more efficient alternative of a single-payer, government-run plan ("Medicare for all"). In that case, of course, the issue would never arise of compelling employers to pay for morally problematic procedures. 

Of course, a contentious political debate would likely have ensued in Congress and in the nation about whether to include contraception in taxpayer-funded health insurance (not unlike the earlier debates about the famous "Hyde Amendment" regarding abortion coverage). Instead of emphasizing justifiable exceptions to generally applicable laws, that would be a larger debate well worth having. 

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