Wrong Case, Wrong Reasoning, Right Principle

Late last week, the state of Kansas officially joined Sebelius v. Hobby Lobby Stores, Inc. by filing an amicus brief in support of the Hobby Lobby's effort to use the Religious Freedom Restoration Act to exempt itself from the requirement under the Affordable Care Act to provide contraception coverage as part of their employees' health insurance. Our state attorney general, Derek Schmidt, says that the lawsuit is entirely about "religious liberty" and is "as American as apple pie." I think he has the right idea--but the way he's expressing it, by joining the case which he has, gets that idea terribly wrong.

I've touched somewhat indirectly on my opposition to the contraception mandate which was included in the ACA via a mandate from the Department of Health and Human Services a couple of times before. To put it very briefly, it strikes me as both constitutionally invasive and frustratingly complicated, and hence something which just underlines the fundamental philosophical problems with both employer-based health insurance and the ACA itself in its attempt to work towards a fairer health care system in the context of that lousy arrangement, however defensible (and I do defend it!) the ACA may be in general. Hence, it's not a huge deal-breaking issue for me, a symptom rather than a cause. But of course it has become a issue upon which many are directly all their anti-ACA efforts (over 100 lawsuits have been filed), and thus not surprisingly, I've gotten strong push-back from friends who defend the act, challenging me over the arguably undeniable sexism or conservatism of my position. I've appreciated that push-back. Given my communitarian and democratic disposition, which in this case leads me to be generally supportive of collective expressions of culturally grounded dissent from certain broadly applicable laws, their arguments have made me think about whether defending organizations which seek religious exemptions--such as this one to the contraception mandate--aren't themselves doing real civic harm to the broader community. So, while laying out what I see as wrong with Attorney General Schmidt's decision, let's see if I can express some distinctions.

While there are dozens of particular differences to the many cases which have been filed against the government in regards to the contraception mandate, basically, as I see it, there are about three categories of complaints here:

1) For-profit businesses whose owners see the commercial activities they oversee as inextricably entwined with their own personal sense of religious duty or ministry, who see the public provisioning of contraception coverage for women as an evil in light of their own beliefs about the morality of birth control, and who thus believe that their religious liberty is threatened if they or any of their employees can be legally involved in any way whatsoever by the ACA with that provisioning. This is essentially the argument which the state of Kansas has joined by choosing to stand alongside Hobby Lobby when it gets its time before the Supreme Court this March.

2) Organizations (including some for-profit businesses, but mostly consisting of various religiously oriented non-profits and schools) who argue, on the basis of the same moral beliefs about contraception mentioned above, that the ACA entangles the mission of their organization in something they consider to be evil, and that they ought to be exempt from such entanglement. This is the position the University of Notre Dame and many other similar institutions.

3) Organizations (again, mostly religious non-profits, but including a few for-profit business entities) who argue, going beyond the issue of entanglement, that any state involvement in the provisioning of contraception coverage will implicate them, since even if they are allowed to excuse themselves from being involved in its provision to their employees, they will essentially be obliged to authorize some one else to do so for their employees, and that makes them complicit in the evil all the same. This is the position, as best I can figure out, being taken in the highly convoluted lawsuit filed by the Catholic charity, The Little Sisters of the Poor, among others.

In categories 2) and, to a lesser degree, 3), I continue think there is--despite the doubts pressed upon me by the challenges of others--an important principle that needs resolution here. The Religious Freedom Restoration Act was passed (thankfully) by Congress and signed into law by President Clinton in response to the SC's decision, Employment Division v. Smith, which --in my view, anyway--did real harm to the religious freedom which previous had been enjoyed (if not always consistently) by distinct religious individuals, bodies, and organizations. Smith--which was authored by conservative hero Antonin Scalia--made it very difficult for people and groups to make a case for their right, under the First Amendment, to be religiously exempt from, what he called, "neutral laws of general applicability."

Obviously there is a great deal of gray area here; religious liberty may be a "foundational freedom," as AG Schmidt puts it, but in a pluralistic society with both great religious diversity and guarantees of equal treatment, the opportunity for discrimination and harm posed by allowing too broad religious exemptions is very real as well. The position of the Little Sisters of the Poor strikes me as ultimately almost perverse (so if they sign a form which states that, rather than obeying a law, a third party will obey it on their behalf, it's the same as if they've embraced the law itself?), while Notre Dame, by contrast, has remained focused on the larger problem of their self-defined mission becoming "entangled" in principles they are doctrinally opposed to, and has in the meantime gone along with the government's proposed "accommodation" of religiously affiliated non-profits. If Kansas had aligned itself with Notre Dame's lawsuit, winding its way through district and appellate courts, I would have no complaint.

But no, Schmidt has committed our state to category 1), the Hobby Lobby lawsuit, which is simply a terrible move. Terrible because, to signal support for a commercial establishment's ability to operate independently of generally applicable, neutral laws, is to essentially sign on to a profoundly unequal reading of the First Amendment. Business and other for-profit corporations have significant social power in society; they are, after all, who most of us work for, and they supply most of what we need to live our lives. Broad religious exemptions granted to such entities thus puts them in a position to discriminate against individuals, which is absolute not what "religious freedom" ought to mean.

For example, if someone--in accordance with democratically determined, generally applicable laws--obtains a business license to run a commercial hotel, and then builds that hotel, and then puts a vacancy sign out, thus encouraging commercial traffic at their hotel, they cannot then say, to any otherwise law-abiding adult person who has the money to pay for an available room at that hotel, "no wait, you can't stay here, because I don't rent rooms to Jews." Civil rights legislation--driven by decisions like Heart of Atlanta v. U.S.--has made it clear that private business may be privately owned, but they, within certainly clearly defined limits, must adhere in their operations to public requirements. And, as multiple scholars have argued in anticipation of the Hobby Lobby case, unless you are talking about a small, closely-held, commercially limited, private corporation--which really doesn't describe a mega-store franchise like Hobby Lobby at all--religious beliefs should not be allowed to trump the ordinary commercial operations that every adult citizen should have equal access to.

My suspicion is that Hobby Lobby, and others, are actually more opposed to President Obama personally and the Affordable Care Act in general than this one particular element of it. But if they--and the state of Kansas--really are willing to die on this hill, let's be clear about something: contraception is legal in the United States. Hence, it may be uncomplicatedly considered as an element of health insurance packages, which in turn may be subject to democratic debate and, if appropriate legislation allows, public provisioning. I'm happy to defend, or at least seriously consider, religious exemptions which genuinely reflect the ministerial and cultural missions of non-profit and charitable organizations; I think that is important to a kind of civil religion worth having in the U.S. But to give an out to a general law for the sake of the religious conscience of owners of a business that is obviously obliged to (and economically ought to want to!) treat its male and female equally anyway? Famed federal court judge Learned Hand's quote is appropriate here: "The First Amendment gives no one the right to insist that in pursuit of their own interests others must conform their conduct to his own religious necessities." Derek Schmidt needs to learn that.