Diary

Revisiting Hobby Lobby

Other than perhaps the Citizens United decision, no other recent Supreme Court opinion so upsets the Left than the Hobby Lobby decision.  A year later, we are still hearing the rants.  One can expect that the Democratic minority in the House and/or Senate will attempt some legislative “fix to this injustice.”  Don’t hold your breath!  To understand the stupidity of the Left’s argument, we need to step back and look at the decision for what it is.

The decision was based on the Religious Freedom Restoration Act (RFRA).  That law was in response to a 1990 Supreme Court decision- Employment Division of Oregon vs. Smith.  That case, decided 6-3, ruled that Smith’s discharge from employment for peyote use was justified even though the peyote use was part of a religious practice.  In effect, they abandoned strict scrutiny when it came to facially neutral laws that impinged on religious practices.  In 1993, freshman congressman Chuck Schumer introduced the RFRA which was passed by a unanimous House and 97-3 in the Senate and was signed into law by Clinton.  In subsequent litigation, the law was ruled unconstitutional if applied to states, but not actions by the federal government.  As a result, many states have passed their own, almost identical laws.

Under Obamacare, certain contraceptives are listed as mandated coverage under the law.  There are over twenty in all.  In Hobby Lobby, the employer objected to only four which they believed were abortificents, not contraceptives, and as such, violated their religious beliefs.  No one at any stage of the litigation doubted the religious beliefs of Hobby Lobby’s owners.

There is nothing in the Supreme Court’s decision that should have elicited the responses on the Left among feminists and others.  Within Obamacare itself, non-profit organizations are afforded an exemption from the contraception mandate altogether- all the listed drugs and devices, not just the four Hobby Lobby objected to.  This assertion that employers are denying women access to contraception is the most absurd argument in their arsenal.  Furthermore, the government could step in and provide payment for coverage of such drugs.  That would seem the best course of action if Congress wanted to take up this issue.  Who pays for the cost, not access to certain contraception, is what was decided in this case.  

And the Left laid the groundwork for their post-decision rants as soon as the case was argued.  There were the absurd accusations that if contraception could be exempted from employer-based health care coverage on religious grounds then other medical procedures, like blood transfusions, would soon follow suit.  There were the predictions that gays would be discriminated against in employment on religious opposition to homosexuality.  This latter charge came from the feminist-LGBT axis on the Left.

It is probably why Justice Alito took great pains to anticipate these accusations and he addressed them head on in his decision.  He specifically stated that the decision was narrowly tailored to the subject at hand and there would not be this spill-over effect into other areas.  As for the concerns of the LGBT community, Alito specifically stated that the decision does not “provide a shield for employers who might cloak illegal discrimination as a religious practice.”  Naturally, an employer can attempt to do just that- refuse to hire a homosexual because they are a closely-held for-profit corporation whose owners object to homosexuality on religious grounds.  Realistically, such a case would never survive in the lower courts and should they appeal to the Supreme Court, Alito’s words- which act as a disclaimer here- would deny review and the employer would lose.

Hence, all that remains is the Left’s assertion that corporations are not “persons” and because they aren’t they can never be afforded constitutional rights.  Since 1871, the Supreme Court has on numerous occasions asserted exactly the opposite- that corporations are to be treated as naturalized persons.  It is why the government cannot shut down a company because of speech.  It is why individual shareholders cannot be sued for product liability claims.  Justice William Brennan- a lion of the Left- reiterated these facts in many decisions.

Because a corporation is for-profit in no way assumes that they surrender their constitutional or statutory rights at the door.  The New York Times is a for-profit corporation, for example, and no one on the Left is asserting they have no free speech rights.  This is a concept, rooted in American statutory and common law, that the Left will never accept or wrap their small minds around.  Corporations are for legal purposes and unless specifically stated otherwise considered persons and therefore subject to the constitutional and statutory protections that would apply to an individual person.  It is even codified in Federal law in the Dictionary Act.

Finally, there is the assertion that workers should have a right to contraceptive coverage in their employer-provided health care benefits.  The employee-employer relationship is one voluntarily entered into by both parties.  An employee knows the compensation and benefits package (if offered) and can accept or reject it.  If they reject it, they can find employment elsewhere.  But to come in and claim a right to contraceptive coverage is like saying one has a right not to wear the assigned uniform, or they have a right to an office with a view.  With the case of Hobby Lobby and Conestoga Wood, the argument was even more facetious since it involved abortificents, not contraceptives per se.

While people like Hillary Clinton, Warren and the female scare mongers like Amanda Marcotte howl about a bad decision, perhaps they should look at the facts before opening their mouths.