Part of America is relieved. Part of America is incensed. So basically it’s status quo. The nine wise ones have decided and, as a Christian, I’m relieved. In First Things Robert George sums up why most Christians are relieved:
As [Richard John ] Neuhaus tirelessly insisted, our religious lives cannot be restricted to what we do in our homes before meals or on our knees at bedtime, or to our prayers and liturgies in churches, synagogues, mosques, and temples. Religious faith motivates, or can motivate, our convictions and actions in the exercise of our rights and responsibilities as citizens, in our philanthropic and charitable activities, and in the conduct of our businesses and professions.
And that’s where the apologetic begins. Mention Neuhaus’ idea of Christian conduct to most people apoplectic about Hobby Lobby and you will likely get something like this from king of the interwebz, George Takei:
Hobby Lobby is not a church. It’s a business – and a big one at that. Businesses must and should be required to comply with neutrally crafted laws of general applicability. Your boss should not have a say over your healthcare. Once the law starts permitting exceptions based on “sincerely held religious beliefs” there’s no end to the mischief and discrimination that will ensue. Indeed, this is the same logic that certain restaurants and hotels have been trying to deploy to allow proprietors to refuse service to gay couples. We are a nation that respects religious beliefs, but also the right not to have those beliefs imposed upon you by others. Our personal beliefs stop at the end of our noses, and your [sic] should therefore keep it out of other people’s business – and bedrooms.
I think Takei’s comments speak out of anger not sober reflection and to put it mildly, they are ridiculously simplistic. I expect better from the witty Takei than to simply float upon the angst-ridden ocean of faux outrage. His call for a boycott as a result is irresponsible and, dare I say it, vengeful. (Yep, I went there.)
However it also neatly sums up the main points of the outrage narrative that will no doubt transform into gleeful election fund-raising. (Yep, I went there too.)
So let me be apologist and defend The Supremes and the Greens.
Hobby Lobby is not a church. It’s a business – and a big one at that.
The implication here is that Churches get exemptions for religious beliefs but religious people who own businesses don’t. Once Christians (or Muslims or whatever) decide to open their doors to the public there rights to not be involved in things that violate their religious beliefs must simply be surrendered. As a justice in the Elaine Photography Case said, “It’s the price of citizenship.” That’s it. People believe differently than you do. You can’t decide what services you will provide for them because you disagree with them. This justice goes on to say, religious people are free. They are free to worship and believe whatever they want. They are just not free to conduct themselves in the marketplace in any way they choose because:
. . . That compromise is part of the glue that holds us together as a nation, the tolerance that lubricates the varied moving parts of us as a people. That sense of respect we owe others, whether or not we believe as they do, illuminates this country, setting it apart from the discord that afflicts much of the rest of the world.
Thus toleration is broadened from non-interference in one’s actions to requiring religious people to be complicit in the beliefs of others. In essence it requires religious people to simply act like non-religious people in public. It is as if commerce is secular a game and if you enter the game you must play by the rules. Which rules exactly? The rules of free enterprise where people are welcome to vote with their feet if they don’t like something? The rules of business law which the Supreme Court just upheld? Or some quasi-mystical state version in-between? By the way, before the Affordable Healthcare Act, this was not a problem. At the risk of going all school-yard: Hey, you guys started it.
In dealing apologetically with this sort of objection I suggest an analogy as a way of showing the slight absurdity of this sort of separation of church and market. What if I as a bacon-loving meat eater secure employment at a vegan restaurant where no animal products are used in the making of the food. The grill, the pots, the pans etc. are all free of all animal products and proudly so. Suppose every other employee is allowed, even encouraged, to prepare their fresh vegan lunch in the kitchen. I want to prepare my ham sandwich wrapped in bacon fried in cheese-curds. Is it reasonable for the owner to deny this privilege? Is it reasonable for manager to kindly ask me to respect the sanctity of the kitchen and the vegan beliefs and eat somewhere else? It would of course be different if by some bizarre coincidence I have to eat meat and there is no where else to prepare my meal. But that’s the point. The Religious Freedom Restoration Act (RFRA) is a very narrow sort of law with specific conditions. Listen to Robert George summarize the conditions for exemption from generally applicable laws like Obamacare:
. . . provides for conduct exemptions to laws of general applicability where such laws substantially burden religious practice or belief, unless the government can meet the high burden of demonstrating that a legal imposition is supported by a compelling governmental interest-the highest standard known to our law-and represents the least restrictive means of protecting or advancing that interest.
“Least restrictive means” is key here. The reason the Court sided with Hobby Lobby is that the four abortaficients it wanted exemption from paying for can be achieved by other means without Hobby Lobby being directly complicit. Most are quite inexpensive. The Affordable Healthcare Act already has provision for providing those drugs for employees of religious non-profits why should it be any different just because Hobby Lobby makes a profit? Unless of course the underlying source of disgust from Takei is that if you are religious you shouldn’t seek a profit. Profit is bad? Or at least what one perceives as too much profit is bad. I could be wrong but I think I detect a little jab at capitalism: “Hobby Lobby is a business–a big one at that.”
“Once the law starts permitting exceptions based on “sincerely held religious beliefs” there’s no end to the mischief and discrimination that will ensue.”
This is the slippery slope argument. Its funny that a slippery-slope argument is always fallacious only when the other guy is using it. Slippery slopes are not always fallacious but they can be without merit. Justice Ginsberg (she’s the one with the doily) writes a dissent in this case that is essentially one long slippery-slope argument.
“Would the exemption…extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations[?]…Not much help there for the lower courts bound by today’s decision.
Far be it from me to question Justice Ginsberg, but it seems to me that The Roberts court has not given businesses carte blanche to manufacture their consciences. Furthermore, one doesn’t have to worry too much about businesses suddenly getting religion so as to exempt themselves from certain provisions of the Affordable Care act for at least three reasons. First, its not profitable, and corporations are all about the profit are they? (he said with a smidgeon of sarcasm since Hobby Lobby seems to be the exception that proves the rule). Ginsberg may be right that the logic of the Hobby Lobby decision can extend to any for-profit company but I doubt the economics will. There is little economic gain that could come from large corporations suddenly getting religion. Second, vaccinations, anesthesia, pills coated in gelatin all sound like things the state has a compelling interest in making sure continue. The distinction between anesthesia and contraception is pretty stark don’t you think? Here’s one last reason I think the slippery slope worries are overblown: They weren’t really a problem before the Affordable Healthcare Act. The RFRA was passed in 1993. In those 21 years, we have not seen a rash of companies trying to get exemptions for everything from vaccinations to gel-caps. When the Affordable Care Act went into effect, it presented new guidelines for insurance companies that triggered the request for exemption by Hobby Lobby and the Little Sisters of the Poor. As Robert George points out, for the whole of history before the ACA, companies didn’t have to provide coverage for contraception and yet there was no corporate Taliban.
For the whole of history, before Obamacare was signed into law only four years ago, no company in the United States was required to provide coverage for these products. So the Obama administration is hardly in a position to say that the provision of abortion drugs or devices, or coverage including them, constitutes a compelling governmental interest. Indeed, one wonders how the government’s attorneys could make that claim with a straight face.
So to sum up our talking points into some challenging questions:
1) Religious faith is more than private religious worship isn’t it?
2) What are these rules of the market you speak of?
3) No slippery slope because
a) corporations follow profit incentive don’t they?
b) no slippery slope before 2010 so why after?
Next week I’ll deal with some less rational objections like the court is patriarchal and should stay out of our bedrooms. I would especially like to hear from you, dear reader, if you think my analogy with the vegan restaurant is off-base and if you have a better one. I’m really still working on that one.