Mandate Debate

On Tuesday the Supreme Court heard two cases regarding the contraception mandate in the Affordable Care Act. The interesting aspect of these cases is that the companies involved (Hobby Lobby being the more famous of the two) are for profit companies whose owners are committed Christians who believe that certain forms of contraception covered by the mandate are against their religious beliefs and that they should not be paying to provide them for their customers. (I think now is as good a time as any to point out the hypocrisy in the fact that Hobby Lobby was providing for the contraceptives they now are against and that their only problem really seems to be that the government is now obligating them to do what they were already doing.) Some commentators think that the government might lose the case, but I cannot support Hobby Lobby’s “religious freedom” claim, and I have both the legal and religious reasons why I think they’re wrong.

Unfortunately the only reason why a case like this is now plausible is because the Supreme Court has opened the door to this type of challenge with their decision in Citizens United. One of the first things that you learn in corporations law is the legal fiction that corporations are “people.” One of the main reasons why people create corporations is so that they as the owners/shareholders can be isolated from the corporation itself. But if corporations are people or individuals, then it begs the question of whether they have the same rights as the rest of real individuals. What Citizens United did was expand the notion of free speech rights for corporations. So the argument goes – If corporations can have First Amendment free speech rights, why can’t they have First Amendment free exercise of religion rights as well?

But it seems to me that the analogies don’t really line up. The good folks at Hobby Lobby (and any other for-profit corporation) can make at least a plausible argument that they need free speech rights. After all, things may occur in America where a corporation would need a voice in the political realm. Support for one candidate or another could have a significant effect on the ability of a corporation to conduct its business. But exactly what religious rights could a corporation have that would be akin to what Hobby Lobby is asking for? After all, I as a citizen do not have the free exercise right to burden other people’s healthcare. I’m not sure it makes sense to give that right to corporations just because they have employees.  Furthermore, while critics of this position would say that employees could just find another job, is this really the type of stratification we want as a society? Does this not amount to a de facto religiously discriminatory hiring practice? I think it comes dangerously close to being exactly that. Now if Hobby Lobby as a corporation wants to have free exercise rights, I’m actually all for that. If the Hobby Lobby Corporation doesn’t want to use contraception when it has sex that is well within their rights. What their employees do, however, is none of their business. 

The other aspect of this case that makes it a close case is the presence of the Religious Freedom Restoration Act, which governs activity by the federal government. When the federal government enacts a law, it must make sure that it does not substantially burden the free exercise right of any individual. If the Hobby Lobby Corporation is an individual for the purpose of free exercise rights, then this law would apply to them. We should note though, that the standard in this case is whether there is a substantial burden. It is a fallacy to argue that any religious burden is unjustified. I am willing to concede that Hobby Lobby and there shareholders’ religious freedom is being burdened. I just don’t think that the burden is enough to justify a religious exemption. In the hearing on Tuesday, some of the justices noted that it might be more cost effective to pay the fine for not providing insurance than it would be to provide insurance for their employees. Moreover, as Americans United has arguedin other cases, one of the main issues here is that the effect on the religious practice of the shareholders is so attenuated. It is primarily attenuated by the fact that the shareholders are protected by the legal fiction of Hobby Lobby as an “individual.” Finally, I think Hobby Lobby is confused as to what they are actually funding. Hobby Lobby is not funding birth control. What they are doing is giving their employees an insurance plan as part of the compensation package for the service their employees provide to the corporation. Those plans include an option for the employee to use birth control. It is then up to the employee to decide whether they will use birth control or not. This seems very similar to me to Hobby Lobby attempting to argue that they will deduct the cost of birth control from their employees salary so that the employee can’t buy birth control with the salary they are given. The health insurance does not belong to Hobby Lobby, it belongs to the employees.

In a recent interview, Harvard Law professor Mark Tushnet surmised that the Supreme Court’s holding in this case, if it rules in Hobby Lobby’s favor would be extremely narrow and would not include the avalanche of potential claims for-profit employers could then make. As much as I despise slippery slope arguments and would like to agree with him. I think Professor Tushnet is wrong here. If Hobby Lobby can remove contraception from employees’ health care, why can’t Jehovah’s Witnesses remove blood transfusions? Why can’t Hobby Lobby remove HIV/AIDS treatment for single/LGBT employees? There are a lot more examples like this and I refer you to this primerfrom the Center for American Progress. The examples they give are reasonable. I like to think of the unreasonable examples that could be based on race or age. The Court could certainly just say that this only applies to the contraception mandate in future cases, but I don’t know what the legal principle would be that the Court would use to distinguish between those future cases and the case we have now.

I want to return to the idea of the attenuated nature of Hobby Lobby’s free exercise claim because I think it also shed some light on why I think they’re wrong not only legally, but biblically. I’m not here to argue with them about whether the Bible outlaws the use of contraception or “abortifacients.” (I put abortifacients in quotes because I don’t think what they are calling abortifacients actually are such.) We can agree to disagree on that point. However, Hobby Lobby seriously misunderstands what exactly they’re doing here. Once again, they are not providing contraception. They are providing an option to have contraception, which the employee will then decide to either use or not use. At best they are providing an option to commit sin, not actually committing the sin themselves, or even co-signing on the decisions their employees will make. I seem to recall someone else who provides an option to sin without condoning it. That’s right – Jesus does! He provided all of with life, even though he knew we were all born in sin and shaped in iniquity (Ps. 51:5) He provides me with the means financially to survive although I will often use that money on things He does not want me to have, and in ways that He would not approve. How great it is to have a loving God who gives me the freedom to make my own decisions and gives me the tools to make the right ones instead of a God who tries to coerce me into His righteousness by burdening my decisions any way He can. Now if we can just get His followers to do the same.

Jason Hines is an attorney and doctoral student in Religion, Politics, and Society at the J.M. Dawson Institute of Church-State Studies at Baylor University. He blogs about religious liberty and other issues at http://thehinesight.blogspot.com.