The real fight over the Hobby Lobby case

posted at 9:01 am on November 29, 2013 by Jazz Shaw

Now that the Supreme Court has agreed to take on the Hobby Lobby case (though they may still duck out of the biggest questions) it seems as if interested parties on both sides are rushing to define what it all means before the first word of the eventual decision is written. As with many such high profile cases, this really has very little to do with the published corporate policies of one particular employer and what will show up in their workers’ benefits handbook next year. This is a case which, if a full, unambiguous decision is rendered, will be dredged up as precedent for years to come in cases across the nation. But we can’t seem to agree on what it is that’s being decided.

For a very liberal reading of the “deeper meaning” of it all, the New York Times helpfully provides the opinion of Linda Greenhouse. As you might guess, I think this misses the point by about as large a margin as one could imagine.

The religious-based challenges that have flooded the federal courts from coast to coast – more than 70 of them, of which the Supreme Court agreed on Tuesday to hear two – aren’t about the day-in, day-out stuff of jurisprudence under the First Amendment’s Free Exercise Clause: Sabbath observance, employment rights, tax exemptions. They are about sex.

As such, the cases open a new front in an old war. I don’t mean the overblown “war on religion” that some Catholic leaders have accused the Obama administration of waging. Nor do I mean the “war on women” that was such an effective charge last year against a bevy of egregiously foot-in-mouth Republican politicians.

I mean that this is the culture war redux – a war not on religion or on women but on modernity.

All culture wars are that, of course: the old culture in a goal-line stance against a new way of organizing society, a new culture struggling to be born. Usually, that’s pretty obvious. This time, somehow, it seems less so, maybe because the battle is being fought in the complex language of law, namely a 20-year-old law called the Religious Freedom Restoration Act.

In her essay, Greenhouse seeks to quickly poo poo the idea that this is part of some grand War on Women or War on Religion, and then goes on to proclaim it to be exactly that, only in different words. But all of this seems to miss the mark.

Ed normally tackles the religious liberties side of these cases here, but the Hobby Lobby question seems to go much deeper than that. While it’s become somewhat toxic to keep invoking the Citizens United decision, one part of this case really does go back to the question of whether or not corporations are “people.” My consistent answer to that question is to say poppycock. A corporation is a stack of legal documents, buildings, property and equipment. But it’s equally true that the leadership of a corporation is most assuredly comprised of people (or one person in the case of some small businesses) who must make decisions and then live with the results, both in terms of the fortunes of their company and the peace of their souls.

Should the government be able to force a business owner to conduct their affairs in a way which doesn’t comport with their beliefs – religious or otherwise – with the only other option being to not engage in business? There may be exceptions to the rule, particularly when it comes to minimum safety standards, but it would seem that the default answer would be no. This is particularly true when we’re discussing offering a “benefit” to employees which is readily obtainable elsewhere.

But this leads us to what I think should be the real debate at the heart of this case. The question I would like to hear the SCOTUS justices ask the participants in this case is as follows: “Do you believe that the government has the power to tell employers how many days of paid vacation they have to offer their employees?

Employers offer a collection of things to prospective applicants for job openings which the HR department collectively refers to as a compensation package. This goes far beyond the wages offered, covering items such as vacation, sick time, casual Fridays, employer contributions to 401K plans and, yes, health care options. Different companies offer different packages, and as you would expect, those who offer the best collection of benefits will attract the most and the best applicants. The employer must balance the costs of all this against their bottom line.

Conversely, an employer who offers virtually nothing but the bare minimum wage will attract only those who can’t find a position anywhere else. They may show up for work most of the time, but they will hardly be motivated to excel and further the company’s goals, generally keeping an eye on the clock and the door, hoping for a chance to bolt to a better situation. Such a company is unlikely to do well. It’s the invisible hand of the market at work yet again. So the real question I’m asking is not if the employer has the religious freedom to single out certain items of health care which they will or will not offer, but rather if they have the freedom to decide which – if any – benefits they offer the employee of any kind and to live with the consequences of those decisions. If the Hobby Lobby case actually settles anything, I’d hope it would be that question rather than the religious liberty debate which dominates the headlines.

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