A Question of Law

Judicial decisions too frequently get bogged down in precedent and rationalization and then miss the major, common sense and what should be controlling facts and reasoning. Some decisions remind me of a line from an old rock ’n’ roll song (“You talk too much, you worry me to death”). It is not always possible, but to the extent it is, we need “bright line” or “black letter law” decisions, particularly involving constitutional rights. We will have a much more cohesive, cooperative, and viable society if the great majority understands what those rights are and where the boundaries lie. We have far too many people running around yelling about “their” First Amendment rights or infringement of “their” freedoms when they in fact have little understanding of the origins and history of such rights, much less the subsequent case law.

If there is to be a “wall of separation” between church and state it must be respected equally, and stringently, by all sides. For example, I may support stronger gun control requirements, but I also recognize that such requirements do not and cannot extend as far as I might like. There is not, and if the Constitution can survive, will never be, a requirement that any church will be required to sanctify a particular marriage. Not only is that an interference with the freedom of religion—it is an interference with freedom of contract and freedom of association.

The basis of the First Amendment was the Founders’ knowledge (and they were virtually all educated, “enlightened” individuals) of the religious history of the sixteenth to late eighteenth centuries in both Europe and in America, which was marked by two principal things: (1) the broadening of religious and philosophical beliefs among Eurocentric peoples, and (2) the persecutions and travesties committed by some of one religious persuasion against others with a different persuasion. These ranged from discrimination and denial of certain rights and privileges against some to burnings at the stake and “witch trials.”

The Founders intended there be complete individual freedom of conscience. They expected to achieve it by providing that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech….” In other words, Congress (and the states, by subsequent Court decision) cannot do anything to favor or disfavor one religion or another. One hopes most people understand that much.

Thus, there is nothing that allows the Congress to outlaw what most people would consider bigoted beliefs, so long as they are not imposed or forced on others. Individuals are free to harbor hate and animus against others—as long as it is kept to themselves. It does, however, allow a government to outlaw attempts by one group or person to infringe on another’s beliefs, and its free exercise, or attempt to impose their beliefs on others, such as burning crosses on a lawn or, in this case, denying individuals their right to use birth control or seek an abortion.

The defect in Hobby Lobby is that it permits individuals or an organization of one belief to impose their beliefs on others who happen to be their employees. Corporate status is an irrelevant “red herring.” Corporations, for profit or otherwise, and associations do not have consciences. Rather, they “think” and “act” as their officers, shareholders or members direct. Thus, Hobby Lobby has no more right to impose what are the beliefs of its shareholders upon its employees than does a sole proprietor employer. It is perfectly fine for those owners to refrain from using certain forms of birth control. It is impermissible for any “employer” of any form to interfere with an employee’s right to use any means of medical care. It is solely for the employee’s conscience and something they may have to square in the hereafter.

The notion that an employer may have a religious belief that it is a sin to indirectly enable an employee to make that decision is utter nonsense. I do not question that some may hold that belief, but I do question the good faith. But that isn’t the issue here.

This issue has been visited many times before. For example, Quakers and the many others who oppose war as a religious or moral principle are not exempt from paying income tax, or that portion that would go to support the Department of Defense (and related agencies). Similarly, a Christian Scientist (and many others) may refuse medical treatment and rely on prayer. That is an exercise of their freedom of conscience (although perhaps not in the wisest way). However, they are not allowed to withhold needed treatment from their children no matter how strongly they may hold their belief. In the first instance, the principle is that there are limits on how far one may refuse to participate in social or governmental obligations, notwithstanding religious belief. In the second, there are limits on the imposition of one’s beliefs on another. Both principles apply in Hobby Lobby.

The government has prescribed broadly what constitutes legitimate medical care and what is to be made available under insurance policies provided by employers with a certain number of employees. The obligation of Hobby Lobby is to provide that insurance coverage, and not something it would choose to design. There is no requirement that an owner personally use such medical services. It is for each employee to determine which services and benefits to use. This is no different than deciding to visit (or not) a park that one’s taxes may support, to place their children in a publicly financed school or not. Indeed, it is not the business of the employer to know, and is an invasion of medical privacy if it seeks to find out. For that reason I see no justification for religious organization exemptions—if a nun wants birth control pills, whether for hormonal balance or because of “secret conduct,” that is her business and for her conscience to bring the matter up in the confessional. Birth control may be a sin in the eyes of Catholic officialdom—it clearly is not in the eyes of the large majority of professed Catholics. It is up to each, as an individual, to reconcile conscience with church doctrine.

There is also the matter of disparate wages. While the costs involved may not be great, the exclusion of certain benefits generally available in such policies is a de facto wage cut. The fact that the employee is free to purchase such products individually is no answer. It is money to be spent on something to which the employee is otherwise entitled required by the employer’s religious belief or whim. Even paying additional salary is no answer, because the employees lose the benefit of insurance purchasing power. There is no logical difference here than claiming one need not pay one’s employees because they might spend the money on something that offends the employer’s religious beliefs.

So Hobby Lobby, at bottom, is poorly reasoned, violates the constitutional and legislative rights of employees, and leaves far more questions than answers.

Article Author: C.F. Vulliet

C.F. Vulliet is an attorney who focuses largely on constitutional law, having cases in the appellate courts as he wrote this. He is a longtime reader and supporter of Liberty. He writes from Sunriver, Oregon.