Tuesday, July 01, 2014

Cheer up, it could be worse!

Because:  why not?

No.  Burwell v. Hobby Lobby did not shift the tectonic plates of America, nor shatter the foundations of religion.

Get some perspective, people.

The court noted that there are ways to provide contraceptive coverage that allow employers to protect their delicate monies (it's money that matters!) from the corruption of buying such a sinful thing as certain contraceptive products (Hobby Lobby didn't object to contraceptives in general, just to four its owners completely misunderstand.  But hey, that's religious belief!  Right?  That sound you hear is Aquinas, spinning in his grave....).

It does privilege certain religious beliefs above others; and that's the problem with the ruling.  But it doesn't, by itself, "hurt" religious believers, especially Christians who might, for a variety of reasons, be critical of the ruling (I agree with the statement at TP that a "business" cannot be "Christian," any more than a nation can.  It's a pity Alito was not a student of Reinhold Niebuhr, I suppose.)

And as long as I'm picking on reactions to this holding, Eric Posner is just dead wrong.  Justice Ginsburg's dissent is a better response to him than anything I can write, though, so I'll leave Posner at that.  He misreads the dissent so badly I suspect he got the Cliff Notes version of it, rather than read the original.

This is, in the end, a bad interpretation of a bad statute.  It can be fixed, provided we get a Congress ready, willing, and able to do so.  All that needs to be done is to clarify the definition of "person" in RFRA.  Of course, as of today Congress isn't even ready, willing, and able to respond to the crisis along our Mexican border, so I hold no hope at all they will respond to this, except to cheer it in their ignorance.

Besides, consider the holding and the dicta quoted from Alito's opinion in the post below.  Corporations enjoy the legal fiction of not being their owners, for tax as well as liability purposes.  "Pierce" that "corporate veil," as the lawyers say, and the owners are suddenly liable for what that corporation has done.  This often happens with closely held corporations, never with publicly owned ones (or almost never).  But this opinion says closely-held corporations aren't corporations at all, but the owners.  And if that opinion can be applied to publicly held corporations (and why not, the dissent says?  Because Alito says you shouldn't?), then corporations cease to exist.

There will probably be a great deal more to this opinion than Alito and the majority meant there to be.  If you doubt it, consider how many courts have used Scalia's dissent to hold that there is no justification for states to refuse to recognize same-sex marriages.

So, be careful what you ask for.  As things now stand, Hobby Lobby no longer exists as a corporation; it is so identified, by this opinion, with the personal interests of its owners that it might as well be a partnership.  It is dubious how many closely held corporations, like Dell or Whole Foods or Koch Industries, are going to identify with the religious beliefs, if any, of their owners; but it is clear from this opinion that any distinction between the owners and their corporation, is an easily erasable one, if not entirely non-existent now.

And that may be the real impact of this decision.


  1. I hope you will forgive me for using your blog for a personal sound-off to add to the general cacophony on this ruling.

    What's interesting to me is that this ruling is being treated as a Culture-war-When-life-begins-War-on-women issue rather than as a national-healthcare issue.

    As I see things, there was a significant majority some few years ago--no consensus, of course--that something needed to be done about healthcare insurance. I bring up my own circumstances because they were typical of the concerns of middle class people like myself. In the course of my own family's "troubles" a few years back (you know them, I need not detail them) I received two bills, for ten days of medical services, amounting to a hundred and fifty thousand dollars. Happily I was employed and insured at the time. Had I not been, I would have been broke, bankrupt, could conceivably have had all my non-exempt property seized, lost my house, and would have had to send my kids to college on 100% borrowed money. It was the nightmare of the middle class--not the poor.

    So President Obama, to his great credit, puts together a kind of Rube Goldberg scheme that, with all its faults, gets through congress and greatly expands coverage to include practically everyone.

    But in this country we remain, for whatever reason, unable to do much in the way of compromise. Most people tend to agree that we middle class people who work and raise kids and pay taxes ought not to see everything go down the tubes when an unexpected medical disaster hits. Not everyone, but I think there is probably a limited consensus around that, even among moderate Republicans.

    But then we have all these "culture war" issues that are pretty much permanently decisive. And when those issues came into the health care scheme, suddenly there could be no compromises. So for the progressives, women's health equality became paramount. For the traditionalists, the government was suddenly mandating matters that were morally beyond the pale. An example of the effect of that was what happened to the US Catholic bishops. They have been publicly calling for some form of universal healthcare for almost a century. But suddenly the actual law had a "poison pill" they couldn't swallow, and they lamentably went into opposition. The upshot was that the rather considerable opinion in favor of universal health coverage got scrambled up into these perennial, insoluble peripheral issues, exacerbated by our bitter, take-no-prisoners political culture.

    I've always felt that these more intractable problems could have been isolated out of the larger healthcare issue with a little compromise, with conscience clauses and opt-outs, and payments-in-lieu-of. I think a healthy political system could have produced such a thing. But ours couldn't.

    So--to the issue at hand--I am far from sure that the Court's decision was right, but I think it will be good for universal healthcare in the long run, because it basically imposes a compromise, an exception, judicially, that we were unable to manage politically. I understand that, for a rather small number of employees, getting coverage for the relatively small cost of contraceptives will become more difficult. I would image the administration is already at work on a work-around. But over time I would hope that these small adjustments will increase the acceptability of the system overall. A flexible structure will be less liable, I think, to a reactionary onslaught than a rigid one. For all the crowing about victory and laments about defeat, I think the whole system is stronger as a result of small concessions to admittedly minority moral and religious concerns. I wish we could have managed this politically. But in some ways it's a miracle that Obama was able to do what he could do. But doing it judicially will do, if that's they way we have to.

  2. Rick--

    I don't disagree with you. I am curious, though: if Obama tries to effect Kennedy's solution (as well he might, especially since the Court has now said their opinion applies to all forms of contraception, not just four), will that effort run afoul of the Hyde Amendment?

    What then?

    And can I refuse to pay taxes because I refuse to support the military? My reasons are very well founded in religious principles, but I think we settled that question a long time ago. I can't refuse without consequence.

    OTOH, what if I refuse to pay corporate taxes as the owner of a closely held corporation? Now can I?

    I understand the moral issue you are raising, but I'm thinking of the legal issues. Because this is precisely why Niebuhr argued that societies, nations, cannot be "religious" (Christian or otherwise). There are too many competing interests involved to impose one rule on everyone, or, as Scalia argued in Smith, a separate rule for each and every one of us.

  3. Well, I've always thought Smith Scalia's worst. Of course it scuttled my budding peyote religion resurgence (not that I was a prospective member). But the prohibition on abridging freedom of religion, aside from needing constant re-adjustment, I still think a good one for society, and I think Scalia's solution just effected a repeal (so long as all are abridged equally), and, if there's one thing the first amendment doesn't do, it's to privilege equality of treatment over letting the hundred flowers of religion bloom. In that sense it's an archaic provision; but I like it.

  4. Well, it's a curious balance: do we allow all laws to be abrogated in the name of religion, or just some? And on what basis, if the latter? Personally I'd be happy to see peyote legalized, but if it isn't I can't use it without consequence.

    As I say, can I refuse to pay taxes because it supports war? I can do the Thoreau thing, but can I do it without even one night in jail?

  5. So for the progressives, women's health equality became paramount.

    ??? For progressives equal access to healthcare for everyone is paramount. Women are people. How can you possibly construe this as some sort of extreme or biased position?

    And no compromise? First of all, the ACA was an enormous compromise, keeping insurance tied to private markets rather than a public risk pool, among a 100 other ways. And if you are talking the religious angle why the hell should I have to compromise my health care because of someone else's really just beliefs that don't apply to me?

    Let's clear up a few misconceptions:

    1. Contraceptives are used to treat almost 50 different diseases and conditions. Women who cannot afford it out-of-pocket will be denied medical treatment because of this ruling.

    2. An IUD costs about one months worth of salary from low wage worker. It isn't inexpensive.

    3. The Obama administration already offered a workaround for Catholic institutions by offering to pay for contraceptives. The American Catholic Church bishops rejected the workaround.

    4. An employer has no right to tell him employee how to spend their wages. Health benefits are wages. Or were until this disastrous ruling.

    The country is being held hostage by Catholic traditionalists and their political bedfellows of convenience and people are dying over it because the influence of the church is preventing expansion of access to healthcare over these issues. You said it yourself: the Catholic Bishops would rather see people die from lack of access to healthcare coverage then let American citizens exercise their right to birth control.

    As a result, reactionary Catholics are cheering this ruling because they feel like they are giving Obama and the modern world a big raspberry and their cherished tribal beliefs won the day. If this ruling, however, had been a Muslim corporation winning a case allowing them to deny employees health benefits for alcoholism or trichinosis or sexually transmitted diseases or refusing to provide health care for non-Muslims altogether, the same reactionary Catholics would be outraged and screaming about sharia law. Don't kid yourself, you would be too.

    Your inability to function in a modern and religiously plural democracy is killing us - when it isn't impoverishing us.

  6. "Catholics would be outraged and screaming about sharia law. Don't kid yourself, you would be too."

    I tend not to do a lot of screaming.

  7. Well, rick, maybe if your hand were being cut off. O_x

    I was going to respond, and then trex said everything I wanted to, better than I could. The solution the optimists are saying will work is PRECISELY the one that the Little Sisters of the Poor (is that the right{wing} order?) is suing over. Alito's say-so that this judgment won't be extended means bupkus when it IS extended, and bosses say "So sue us! I dare ya!"

    I can sense, via my skin crawling, a boss's "strongly held religious conviction" against the minimum wage, as I type... [And don't get me started on Queer Little Me, as Catholic schools are ALREADY doing to my marrying-kind. Alito pointed DIDN'T mention gender or sexual orientation discrimination protection in his stipulated (supposed) carve-out. I'm sure there's a gay Hobby Lobby employee or 3, and even in states that have their own ENDA, they could well be next on those oh-so-religious Green family's chopping block...]

  8. I don't disagree with the worst case scenarios, but if any of those come to pass (and even the Court's declaration that it's opinion applies to ALL forms of contraception, not just the four objected to by the owners of Hobby Lobby, may be enough for what I'm expecting), it will trigger at least a revision of RFRA.

    As I said, this is a RFRA case, and the Court's opinion rests on "person" (the word in the statute) including for-profit closely held corporations. All Congress has to do is make clear (perhaps simply by adding the word "natural," but perhaps with a bit more) that "person" in the statute DOES NOT include corporations, and this problem goes away.

    I think the real issues in this case is the fealty of this Court to corporations, not any supposed fealty to religious sentiments or concerns. But I almost welcome a "worst-case scenario" that extends Burwell far beyond where it stands now; it would guarantee it's swift reversal by Congress.

  9. I think a review of the history of religious-rights cases shows them to be narrowly applied. Yoder's recognition of the exemption of the Amish from mandatory attendance at high school, for example, didn't initiate any sort of retreat from public secondary education.

    One of the things that interests me in this debate is the way that the literal application of the provisions of the first amendment have become so controversial. It doesn't seem at all a concern to many that a government command burdens conscience. Those people are bad, or hypocrites, or they just hate other people. But none of those things have, in the past, disabled a fundamental constitutional right. I understand arguing about the reach of such rights, and the difficulty of balancing them against other rights. One need only read the string of cases in any constitutional law textbook to grasp the difficulties involved. But it seems to me that there is another attitude emerging in some of this debate, that a growing contempt for religion is mirrored by an attitude that religious convictions themselves, being illusory, are inherently trivial and ought not to have any real countervailing weight. I add that I don't think that that's the attitude of our host, or trex, or JCF. But I would imagine that the "approval rating" of the first amendment, if measured, would probably be at an all-time low right now.

    The elephant in the room again is elective abortion. Many think it healthcare. Many think it murder. Many aren't sure. If the construction of a viable universal healthcare system is dependent on a social consensus on that issue, there will be no viable universal healthcare system. I still think we have to find a way to patch around it.

  10. I tend not to do a lot of screaming.

    Yes, I suppose I, too, might try and weakly deflect the issue in the face of an argument I couldn't rebut. Because any examination of a counter-example is going to arrive at one of two conclusions:

    1) this decision prejudices conservative religious beliefs - specifically Catholic and Evangelical beliefs - over other religious beliefs (such as my own, for instance) - in which case it is on its face an illicit decision, or:

    2) this decision isn't prejudiced towards any particular religious beliefs, in which case the door is wide open for cases such as Muslim employers denying health care to non-Muslim employees, Evangelic employers denying benefits to atheists, indigenous, or heathen employees, et al.

    There's no place to go from there except to hope that no others whose religious view you don't share ever get access to the same rights. In others, you need to hope that this decision is narrowly applied and that everything forgets that it is a gift from conservative Christians to conservative Christians.

    I think a review of the history of religious-rights cases shows them to be narrowly applied

    That would be a compelling argument if the same nine immortal justices sat on the court decade after decade issuing the same wise rulings. Unfortunately we are burdened with a radical Court and have no way to foresee what future courts might do with this. Legal "mission creep" is the rule, not the exception when it comes to legal precedent.

    And once again, it ignores the prejudice of this ruling.

    But it seems to me that there is another attitude emerging in some of this debate, that a growing contempt for religion is mirrored by an attitude that religious convictions themselves, being illusory, are inherently trivial and ought not to have any real countervailing weight.

    This is nothing but fear and projection. In a nation where a candidate cannot get elected dogcatcher without mentioning God and, indeed, can get elected MERELY by mouthing Christian ideals while having not the least fitness for office, there is certainly no growing contempt for religion. Quite the opposite. This feeling is nothing but the projection of your psyche. Why is it that American Christians who have a church on every corner, a million of their own radio and television stations, and a politician in every pot feel always act as if they are bloody martyrs?

    Hint: it's because the existence of a pluralistic society in which ANY other people don't believe the same way drives them nuts.

    If it were true that our society was contemptuous of religion it wouldn't change the meaningfulness or truth of your beliefs to you in the least. To worry about this kind of thing is indicative of insecurity and ego problems. Religion is meant to be a yoke on the individual not a hammer for us to beat others about the head with in order to satisfy our insecurities. I couldn't give a damn about what other people think about my personal religious beliefs and never have, nor am I trying to foist them on others through legal or other means.

  11. "this decision prejudices conservative religious beliefs - specifically Catholic and Evangelical beliefs - over other religious beliefs"

    This decision deals with an evangelical belief because the legal command was to an evangelical who brought the legal challenge. The legal standard, such as it is, has no particularity regarding the content of the belief. I think it is fair to say that the antiquity of a religious stance gives it a certain presumptive religious status. Timothy Leary would have had a better chance arguing that marijuana was a religious sacrament if Augustine and John Damascene had said the same thing. But aside from what's basically a matter of proof, I don't see that the progressive religious conscience is held here to be any less worthy of the constitutional protection than the traditional.

    Your other alternative posits a gutting of healthcare based on excessive deference to other religious traditions. It's possible, and if, on a case by case basis, that becomes a problem, this case may not have much of a shelf life. Very few Jews in this country keep kosher, but if, in an effort to promote the pork industry, the government required all institutions serving meals to include pork, synagogues would rightly balk. I understand that compliance with the alcohol ban by Muslims is fairly loose, as is the ban on caffeine among Mormons. But both would have good objections if some salutory regulation required them to promote them.

    Generally I think our politics are crazy, and our courts too much follow our politics, but I also think the craziness of the courts tends to be self-correcting. This isn't even a constitutional ruling--it's subject to many hedges and exceptions. And these questions regarding the beginnning of life, and the protection due to human life at its earliest stage, are not extreme hypotheicals; they've been roiling our political life ever since Roe v. Wade purported to decide them once and for all.

    My own hope is that this pushes us toward a single payer system. Our host rmj (happy belated birthday, by the way), keeps bringing up objections to paying taxes that pay for unjust war. There the law is clear: no dice. A single payer system would be similarly exempt. But I am perhaps being utopian about this country in my lifetime.

    On whether I'm projecting in sensing a growing sense of contempt for religion--maybe. It's probably caused by spending a little too much time with internet comments. But it's not just that. And I can't give you chapter and verse. But the sense I get from many mainstream publications and web sources--I subscribe to the New York Times and regularly read Slate and Salon--is a sort of incredulity that religious convictions that buck secular trends should be treated with anything but ridicule. It's not so much popular opinion as that of the professional classes. Religion is still a fairly dominent force in our society. But, where I work, the janitors and secretaries and technicians and engineers tend to go to church. The lawyers don't.

    And this has nothing to do with persecution. There's no persecution of Christians in the United States. To complain of a violation of the free exercise clause is not to claim persecution; but it's the right of any citizen. By the same token, I will not be happy that someone ridicules what I consider sacred. But that's not persecution; it's just bad manners. As I ought not to ridicule atheists.

  12. I left a tart response to a comment at Salon, a bloviation about how pastors "sway" their congregations into thinking thoughts they would not otherwise think.

    It was such a stupid, mindless, ignorant statement, and went on so long in its idiocy, I couldn't stand it. Congregations are made up of like minded people, and they call pastors who are also of like mind. A congregation and pastor who don't agree on many subjects are soon parted.

    The ridiculous basis of the argument was that everyone would be "reasonable," i.e., think like the commenter, if not for those meddling priests.

    What balderdash.

    And yet you are right; it does me no good to ridicule atheists; much as I want to.