You recall the recent Hobby Lobby case—more officially, Burwell v Hobby Lobby. Now that the initial clamor is over, we can take a second, deeper look at it.
The case arose because the Obama Administration, with a complicit Congress, pushed through the Affordable Care Act (a.k.a., Obamacare), demanding that employers provide insurance coverage. Health and Human Services issued a mandate interpreting coverage to include contraceptives, sterilization, and abortifacients.
Hobby Lobby, an Evangelical-owned company, was just one of the many businesses that challenged the law based upon the alleged protection provided it by the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercisethereof;…” In a 5-4 decision handed down on June 30, The Supreme Court sided with Hobby Lobby.
This decision has been heralded as a victory for religious liberty. But is it? And if so, what kind of a victory is it? We need to ask some deeper questions.
First, the notion that there is a right to employee healthcare. There is an assumption, at least by the administration and those sympathetic to its causes, that we have a right to healthcare provided by employers, a right that the government must protect—by force, if necessary. For example, Dawn Johnsen, a law professor and co-author of an amicus brief in the Hobby Lobby case, chastised the Court for “allowing employers’ religious objections essentially to trump women’s interest in their right to health insurance coverage for contraception…”
Set aside the question surrounding contraception for the moment. A more fundamental question is this: where did the notion that we have a right to health insurance coverage footed by the employer come from?
Before World War II, the notion that we had a moral right to healthcare provided by one’s employer would have been as strange as the notion today (at least I hope it’s still strange) that employees have a right to employer-provided smartphones or new cars or houses. During World War II, employer-provided healthcare originated as a bonus that companies used to attract employees in a war economy in which the labor supply was scarce.
What originated as a particular kind of perk, became an expected (but not universal) standard. A quite different result would have occurred if these companies had decided to provide, say, down payments for houses, or a clothing allowance, or free tuition at a local university for children, or any of a number of things that employees now pay for out of the money they earn. It just so happens that they chose insurance as the perk.
But now the expectation of getting a perk from employers, has morphed into a feeling of a moral right to that perk, and finally, into a moral right to demand any and all desired services from that perk.
This expectation, however adamant, would have remained merely a wish, if it had not been for the passage of Obamacare. With Obamacare, that expectation was made into a law, and thereby given all the force of a kind of recognized moral right protected by the government. Hence the claim that women have a right to have their contraceptives and abortifacients covered by employee-mandated insurance, and the government has a “compelling interest” in forcing businesses to comply with that right.
Since we seem today to claim an ever-expanding list of such “rights,” then employers will face an ever-expanding list of insurance demands that they must fulfill. On the short term, the obvious and more immediate implication is that, since women also have an already existing “right” to abortion, via Roe v Wade, then the government must impose the moral obligation upon businesses to provide it. Demanding the provision of abortifacients was a half-step in that direction.
With the HHS mandate, the Obama Administration is forcing businesses to foot the bill for its own secular liberal sexual and social agenda. That is precisely why Hobby Lobby (and other religious-based businesses) filed suit against the HHS mandate, seeking refuge behind the First Amendment’s Free Exercise Clause.
Hobby Lobby and others celebrated the Supreme Court ruling as a victory for religious freedom. But I think we should all examine this more closely, and see if it is actually a deeper sign of a greater crisis.
To begin with the obvious, the victory hung on a 5-4 split, one precarious vote away from swinging the other direction (and with a warning that future rulings in this area would be on a case by case basis).
But to dig deeper, the Supreme Court did not decide the case based upon the First Amendment itself. Rather, it asserted that the mandate violated the Religious Freedom Restoration Act (RFRA) of 1993, signed into law under President Clinton (which was itself based upon the so-called Free Exercise clause).
Enter the ambiguities. The RFRA was passed to protect certain American Indian tribes against encroachment on their sacred land by governmental projects, and to protect the use of peyote in their religious ceremonies against government anti-drug laws. The main “kick” in peyote is mescaline, a hallucinogenic drug with effects similar to LSD. Given that there is no definition of “religion” in the First Amendment, then RFRA implicitly allows for a limitless number of claims about what constitutes a religion and its free exercise.
Think not? In Cutter v. Wilkinson (2005) the Court unanimously affirmed the right of prisoners to have accommodated the practice of their “religion” in prison—in this particular case, two adherents of Asatru (a neo-pagan Nordic religion), a proponent of the white supremacist Church of Jesus Christ Christian, a Wiccan witch, and a Satanist.
The problem is that in Hobby Lobby and elsewhere Christians are using religious liberty undefined as a shield to protect themselves against government intrusions, but doing so strengthens the legal expansion of religious liberty to protect every possible belief imaginable, including the worship of Satan.
In the Hobby Lobby case, it is the corporation, as person, that is claiming protection against infractions against its religious liberty. But how long will it take—especially given the notion of a right to employer-provided healthcare—for employees to make the counter-claim that their religious liberty is being violated by not getting abortions or abortifacients, exemptions from drug-testing because they are Rastafarians, or who knows what a Wiccan or Satanist might claim.
This expansion of religion to include everything from Christianity to its darkest opposite, is historically paralleled by the expansion of rights to include every imaginable activity, especially those condemned as immoral by Christianity. That’s how we got the right to abortion, and the notion that we have a right to contraception and abortifacients as paid for by employers. Affirming undefined religious liberty would appear to be the easiest and most effective strategy for warding off intrusions like that perpetrated by the HHS, but it will end in the same quagmire as undefined rights.
What to do? We need to begin a very serious discussion about the nature and limits of religious liberty, and it won’t be an easy one. To understand the difficulties we face, we should start that conversation off with consideration of a kind of amusing paradox in the form of a recent post by the ACLU that stoutly defends the religious liberty of Muslims, citing at the top of their list of concerns: “bans on Sharia and International law”. One would think that the ACLU would see the obvious. Wherever Sharia Law is imposed, religious liberty disappears. And to add to the irony, one of the very next things that would disappear under Sharia Law would be…the ACLU.