Sunday, July 6, 2014

Sheath Your Pitchforks, Repackage Your Confetti: Reflections on the Burwell vs. Hobby Lobby Ruling

             Edit: Apologies for the bad quote formatting, not sure how to fix it.

             Yes, I'm a little late to the party.  Most people are sick of hearing about Hobby Lobby.  Most people are probably ready to move on from the case to the media's new divisive attention-grabber.  But there are advantages to waiting a week or so before writing a piece on something like this.  I know, not very popular in today's "I want it now!" culture, but a better way nonetheless.
               So, if you haven't moved on yet, I recommend that you sheath your pitchforks or repackage your confetti (depending on what side you're on) because the recent Supreme court ruling isn't a landmark decision or a groundbreaking event.  It maintains the status quo rather nicely and will barely affect either women's health or religious freedom at all.
               Let's examine the evidence. 

               1.  Alito's opinion implied that the First Amendment was not broad enough to support Hobby Lobby's claim.  In attempting to interpret the Religious Freedom Restoration Act (RFRA), the law on which the Supreme Court based the ruling, Alito attempted to distinguish its scope from that of the First Amendment by citing a case in which two Native Americans, fired from their jobs for ingesting Peyote (a drug considered a sacrament of sorts in their religion) sought unemployment benefits but were denied because of the criminality of their drug use.  The Supreme Court ruled against the plaintiffs, claiming that "neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest."  In other words, as long as the law doesn't specifically target religion, it should be upheld even in cases where it infringes on religious exercise.  Apparently, to the Supreme Court then and now (for Alito confirms this previous ruling), the decree "Congress shall make no law...prohibiting the free exercise [of religion]" now means that congress can prohibit the free exercise of religion as much as they want as long as the law is generally applicable and doesn't target religion specifically.  This twisting of the founders' words and assault on our rights is an absolute abomination.

               2.  The Supreme Court, instead, upholds RFRA, which, although intended to curb the government in its running roughshod over the terms of the First Amendment, still remains more narrow and restrictive than the true meaning of the First Amendment, which the court refuses to acknowledge.  RFRA states thus, quoted and framed in Alito's opinion:

              "Government shall not substantially burden a person's exercise of religion even if the burden               results from a rule of general applicability."  If the Government substantially burdens a                         person's exercise of religion, under the Act that person is entitled to an exemption from the                 rule unless the Government "demonstrates that application of the burden to the person - (1)                 is in furtherance of a compelling governmental interest; and (2) is the least restrictive means               of furthering that compelling governmental interest.            

               On the surface, RFRA seems to be a good law.  But, unfortunately, there remains that pesky little term, "compelling governmental interest."  Of course, that phrase is never defined, which leaves the door wide open for any interpretation.  Is a "compelling governmental interest" the need to protect people from being murdered and raped?  Is it the enforcement of tax laws?  Of any law?  The wording is so broadly construed that practically any federal or state mandate, however petty or obscure, could be declared a "compelling governmental interest" and used to burden a person's exercise of religion.
               3.  The court merely assumes that forcing a business to purchase insurance for its employees that furnishes contraceptives is a "compelling governmental interest."  This is so absurd that it should require no refutation, but since liberals and radical feminists will certainly claim that contraceptive care is a human right, let it be noted that to establish anything as a human right is to exert an obligation upon every human being.  The right to life, liberty, and property (as Locke codified), for example, does not merely concern the government's obligation to protect its citizens (since each right has as its corollary an obligation, and each obligation a right) but also each human being's responsibility to refrain from harming their neighbor's person, infringing upon his freedom, damaging his property.  Similarly, to claim an inalienable right to contraceptive care is also to impose upon every other human being the obligation to furnish that care.  This is the essential principle behind the liberal argument; Hobby Lobby (or the government) is merely the specific agent carrying out that obligation on behalf of the rest of humanity.  I invite any objectors to support this line of argument by clear reason and not by emotional appeal.  I do not think it can be done, for it is not reasonable.  And before I am accused of misogyny, I would like to point out that I would say the same for men's reproductive care and, frankly, all health care, excepting that necessary to save a life or to treat a debilitating condition.  I am quite willing to admit that the right to life may include a right to life-saving health care, but I refuse to grant anyone the right to live without physical pain, or the right to have sex whenever they please, or the right to live in as much physical comfort as possible.  All this does not even touch upon the abortion issue tied up in this ruling (which I will not deal with here since the issue and the medical debate surrounding it is beyond the scope of this essay).

               4.  The court only upholds Hobby Lobby's claim because there is a "less restrictive" means of furnishing the "compelling governmental interest" of free emergency contraception.  This "less restrictive" method is to force the insurance companies to provide the four objectionable contraceptives free of charge to employees of the plaintiffs.  Although this option does not burden the exercise of religion, it remains restrictive and unjust in that it still coerces insurance companies into giving contraceptives away under the assumption that women are entitled to the four methods under question.
               These four points should be sufficient to demonstrate the true nature of this ruling.  Certainly, it is a small victory for religious freedom, but not for liberty in general, for it merely passes the buck from one company to another.  Since the court assumes that the government has a compelling interest in forcing corporations to pay for contraceptives, someone must pay if Hobby Lobby will not.  Conservatives and libertarians should hardly celebrate this ruling, for it maintains the liberal status quo of entitlement and government coercion.  Similarly, liberals have nothing to be worried about with regard to the ruling, for although it exempts conscientious objectors from the mandate, it gives their opinions no weight in the end of the matter, for it still recognizes the claim of entitlement to the contraceptives in question, in essence excusing the dissenters of their scruples and shoving the responsibility off to someone else in order to appease weak consciences.
               Thus, as it all turns out, not much is different after the Hobby Lobby ruling.  Women still get free IUDs and Plan B/Ella drugs, the government still affirms the claim to entitlement to contraceptives, the state still forces private corporations to buy things, and the Supreme Court still refuses to acknowledge our freedoms under the first amendment.  Hobby Lobby's victory is good, but the alternative proposed by the court is not.  The ruling is a small victory for religious freedom, but will barely make a dent in the status quo.  Statism is still very much alive and well.  Neither confetti nor pitchforks will be necessary; rather, let us put our hands to the plow, for there is much more work to do.

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