1) The government must provide religious accommodations to for-profit companies
Corporations aren’t people, but they are owned by people, and the religious beliefs of those people must be protected regardless of how those people choose to incorporate their businesses. The court ruled today that the accommodations provided to non-profit religious organizations by the Religious Freedom Restoration Act also apply to for-profit companies.
“[W]e hold that a federal regulation’s restriction on the activities of a for-profit closely held corporation must comply with [the Religious Freedom Restoration Act,” Alito wrote in the majority decision.
It’s a big win for religious liberty and against the belief that your faith no longer matters once you decide to open a business.
Just as notable is what the Supreme Court’s ruling did not do. Women who work for the plaintiffs, Hobby Lobby, remain able to use their employer-provided insurance coverage to finance the most popular forms of contraception. They remain free to use their wages to finance the ones Hobby Lobby will not cover. They remain free to find other jobs, too, if they want employer-provided insurance coverage that includes the abortifacients to which Hobby Lobby objects. Congress remains free to enact a new law that requires employers to cover abortifacients and contraceptives and explicitly rules out any RFRA exemptions. It remains free, for that matter, to repeal RFRA altogether.
The ruling does not even make it clear whether the Little Sisters of the Poor will, in the end, remain free from the requirement that they authorize another party to provide contraceptive coverage. That question will be answered in a different case. The Court’s ruling today, in short, is an extremely limited one. It does not even restore the full scope of freedom employers had in these matters as recently as 2012. Nobody then, you may recall, was agitated over the fact that throughout the entire course of American history up to that point, their supposed “rights” to free contraceptive coverage from employers had been continuously violated.
It can be safely predicted that any change in birth rates and rates of contraceptive use based on this ruling will be undetectable. All that has changed is that employers are a little freer to refuse to engage in conduct they consider religiously objectionable. That this increase in freedom makes some people so very upset tells us more about them than about the Court’s ruling.
The Supreme Court had already granted all kinds of other special rights and powers to corporations — including “corporate personhood” or the right for businesses to be treated as people under the law. And because corporations are people, the Court has ruled that corporate spending to influence elections is equivalent to speech and cannot be infringed. At a time when economic inequality is reaching record highs and support for big business is at an all time low, the Supreme Court has consistently seen fit to confer more and more power and privilege to already powerful and privileged corporations. At a time when we should be putting more checks and balances in place for corporate America, the Supreme Court is loosening the reigns.
Moreover, this case is a perversion of religious freedom. Our values of religious freedom and tolerance were meant to protect individuals in our nation from the tyranny of government and business. Recall that in the earliest days of American history, it was not only the King of England but the powerful East India Company out from under the mutual thumb of which American colonists were trying to crawl. Moreover, as I have written previously, freedom of religion explicitly includes not only the freedom to practice one’s religion but to be free from the imposition of someone else’s religion. The owners of Hobby Lobby and Conestoga Wood cannot be allowed to impose their religious beliefs on their employees.
[The reaction is] instructive because it demonstrates the extent to which the Left is emotionally and ideologically committed to the power of the regulatory state. For some time, the Left has been selling the public and the courts on the notion that somehow the act of forming a corporation and opening for business operates as an effective waiver of your most basic liberties, including free speech, free exercise of religion, and virtually the entire panoply of property rights. In effect, your business is not “your” business at all, but instead all aspects of its operations exist at the whim of the state, and if the state wants to draft you into its child-killing abortion crusade — or wants to muzzle you during political campaigns – then you best salute and fall in line…
The desire to make money does not act as a waiver of constitutional or statutory rights, nor is it morally suspect, but it certainly is indispensable to a system of free enterprise that all too many on the Left view as the enemy of “social justice.” As one of my colleagues at the ACLJ stated (full disclosure: We filed seven lawsuits against the mandate, filed an amicus brief in the Hobby Lobby case, have two mandate cases before the Supreme Court now, and have filed more than a dozen amicus briefs against the mandate nationwide), “If anything rivals the Left’s passion on the abortion issue, it’s their commitment to the regulatory state.”
When a case combines elements of both issues, for the Left a loss is cataclysmic. And if much of your public “argument” depends on creating a sense of cultural inevitability, then a dramatic halt to the latest leap forward of the allegedly unstoppable sexual revolution and regulatory state is a cause for leftist weeping indeed.
All signs Monday pointed to the fact that Democrats would rather stage a political fight over the issue than quickly resolve it for the affected women. Both the Democratic Party and the White House Twitter accounts spend much of the day rallying people to outrage on social media over the decision. “It’s time that five men on the Supreme Court stop deciding what happens to women,” tweeted Senate Majority Leader Harry Reid.
Legal observers say it would not be difficult for the Obama Administration to resolve the situation unilaterally. The Department of Health and Human Services has already taken unilateral executive action to ensure that women employed by religious nonprofits get contraception coverage in cases where the employer declines to pay. “There was nothing in the statute that specifically allowed them to create the exemption for non-profit organizations so I don’t see why they couldn’t extend that to for-profit corporations,” said Timothy Jost, a law professor at Washington and Lee University and an expert on the Affordable Care Act’s regulations. “I don’t know why they couldn’t do it themselves.”
The communications director for EMILY’s List said the ruling will motivate women to cast ballots come November.
“Ninety-nine percent of women of women aged 15-44 have used birth control – this should not be controversial,” Jess McIntosh told CNN. “But conservatives in every branch of government are determined to undermine our ability to make our medical decisions on our own – just like men do. Women have decided every election in recent memory. Women were watching today, and it will absolutely be a motivating factor in November.”
Some conservative women rejected the notion that the ruling will motive female voters to support Democratic candidates come November.
Concerned Women for America, a socially conservative group, said that it preserved “religious liberty for everyone, including the women represented by the other side.”
Alison Howard, the group’s communications director, said the ruling would motivate women in a different way: “This is so affirming to those women who believe in freedom and that’s bigger than those who believe that taxpayers should fund abortion inducing drugs and contraceptives.”
2. “President Obama believes that women should make personal health care decisions for themselves, rather than their bosses deciding for them.”
Agreed, but there was nothing in the Supreme Court’s decision that took the decision away from women and gave it to their employer. Women are still free to obtain contraceptives.
Hobby Lobby wasn’t telling its employees that they couldn’t seek those contraceptives, just that the company wouldn’t pay for them through its health insurance.
That’s not the bosses deciding women’s health care decisions, that’s the bosses deciding not to cover something that wasn’t previously a required health care service.
There is one way that House Republicans can stay a step ahead, however. That is following the lead of Gov. Bobby Jindal, R-La., and more recently, Rep. Cory Gardner, R-Colo. (who is now running for U.S. Senate). That is, they should support a bill to allow oral contraceptives to be purchased over the counter…
Philosophically, it’s consistent with limited government principles. It removes unnecessary government regulations and increases choice.
It doesn’t impose new burdens on businesses or religious institutions, nor does it require an increase in government health care spending.
And politically, it would also be beneficial to Republicans. It would make it a lot more difficult for Democrats to portray the GOP as being only interested in obstructing Democrats rather than supporting their own ideas, and harder to accuse Republicans of being broadly against access to birth control.
The obvious solution to this dilemma is to take health insurance away from employers altogether. In a very, very limited way, the Obama administration has already done that by arranging for separate contraception coverage, via third party insurers, for churches and other truly religious organizations that object to such coverage. In principle, it could do the same here. And, over the long run, it’s easy enough to imagine a world in which employers were truly out of the health insurance business altogether—a world in which all people got health insurance directly from the government or tightly regulated insurers.
But the people and groups who oppose government’s providing insurance directly tend to be the same people who object to the contraception mandate. That’s not a coincidence. While I don’t doubt the religious objections to birth control are sincere, I do think they are masking another belief conservatives bring to this debate: As a general rule, conservatives don’t think government should be compelling them to pay for other people’s medical expenses. Voluntary insurance arrangements are fine, they say. But government shouldn’t be making them pay for other people—or for services they might not like, want, or use.
The Hobby Lobby case raises a whole bunch of important and complicated questions—about religious freedom, the definition of corporations, and so on. But fundamentally this is also a case about the responsibility each of us has for the well-being of our fellow man—and, yes, for our fellow woman.
JONATHAN TURLEY: It’s a huge blow to the Obama administration. You know, this has been an awful ten days. They were previously found to be in violation of the Fourth Amendment and privacy. Then they were found to be in violation of the separation of powers, and now they have been found to be in violation of the First Amendment and the religion clauses. I mean, you just don’t want to get out of bed after a week like that.