Hobby Lobby: Constitutional Paper Mache…
Posted July 4, 2014on:
Happy 4th of July Widdershins. I hope your day and weekend is filled with egg tossing, sack races, cookouts, and oohing and aahing over fireworks commemorating the uniqueness of the American experiment. Here in the “valley of the Widdershins,” today I can offer nothing more patriotic than laying bare the most recent blemish upon an American ideal — the Hobby Lobby decision.
It’s funny how the mind works. When new information is introduced, there is no way to tell where that information will take your mind. That was the situation Monday morning last when I sat awaiting the Supreme Court opinion in the Hobby Lobby case.
When the decision was announced my mind didn’t focus on what the decision held. My thoughts didn’t focus on the constitutional insult of bestowing religious protection upon for-profit corporations nor did they focus on the raw ugliness of favoring the powerful over the powerless. It didn‘t even occur to me to focus on how we got to the point of relitigating contraception — an issue thought to be settled since the 1960s.
No, what occurred to me when I heard that Justice Alito had authored the Hobby Lobby decision was the art he had selected to decorate his chambers while he was on the Third Circuit Court of Appeals. His personal chambers were festooned with all matter of Amish folk art. The thing that struck me about that art was its flatness, its one-dimensionalism, and its utter lack of depth. When the findings of the Hobby Lobby opinion began to set in, my mind’s wandering to his decorating choices was strangely appropriate since art always seems to mirror the admirer.
Admittedly I am no art connoisseur and since there is only so much you can say about painted umbrella stands that began their lives as butter churns, I will leave the art review to others. What I would like to talk about today are those things upon which I didn’t immediately focus last Monday.
The holding in the Hobby Lobby case was fairly forthcoming. It was couched as a statutory interpretation case focusing on the Religious Freedom Restoration Act. RFRA was championed by Ted Kennedy and passed the Senate 97-0 as a remedy to the 1990 Supreme Court case of Employment Division of Oregon v. Smith, where two Native Americans were fired from their jobs due to testing positive after ingesting peyote as part of a traditional religious service.
The main thrust of RFRA was, “government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” In applying RFRA to the Hobby Lobby set of facts, the Court held:
- RFRA was written to protect individuals’ religious freedoms and under RFRA, corporations count as people thereby their religious freedoms also get protection.
- The ACA requirement to cover contraception violated RFRA because the ACA mandated that businesses “engage in conduct that seriously violates their sincere religious belief that life begins at conception.”
- If the federal government wanted to increase access to birth control, the Court thinks government could do it in ways that didn’t violate religious freedom, like directly distributing contraceptives.
The Court also attempted to limit those who might benefit from this finding, saying that only “closely held” corporations can be protected under RFRA. Since about 90 percent of companies are closely-held and they employ about 52% of the workforce, this is a distinction without a real difference.
That is what the decision held, now let’s turn to the intellectual folly of bestowing religious freedom protection on for-profit corporations and the ethical revulsion associated with favoring the powerful few over the powerless many.
In writing the opinion, the first obstacle Justice Alito had to overcome were the words of former Justice John Paul Stevens, who had written, ”corporations have no consciences, no beliefs, no feelings, no thoughts, no desires.“ In fact, RFRA referred only to a “person’s” exercise of religion — there was no mention of corporations. Admitting this, Alito opined “artificial persons” are often excluded from the definition of personhood so he went outside the RFRA and reverted to the generalized “Dictionary Act” definition of “person” which included corporations (more on the significance of this later).
After this leaky logical hole was plugged, there were myriad others with which to contend. What about the religious beliefs forbidding blood transfusions, vaccines or psychiatric care? Without any legal test, justification or precedent, Alito summarily declared, “they don’t qualify for this exception.” Why? Because he says so.
Presently, there are over seventy cases with ACA issues rolling toward the Supreme Court. Of those seventy, fifty-one have to do with religion-based challenges to contraception issues. Alito’s cursory edict of “because I say so” is not likely to hold under the onslaught of fifty-plus factual situations.
Another leaky hole just slightly smaller than the state of Montana: What is “sincere religious belief”? Again, not a hint of a clue in this decision — no legal test, no legal precedent. The reason is pretty simple. How do you objectively measure a religious belief premised on a patently false understanding of medicine and science? That is what is at issue here, the belief held by the Green family is untrue according to medical science, but undoubtedly they are “serious” about their baseless belief.
I would submit this is one of the largest hidden pitfalls of the Hobby Lobby case from the standpoint of organized religion and their believers. This case was sold by groups of “prophets of profit” as an abortion case. Why? Because it is easy to tap into the emotions associated with the issue and most importantly, it is easy to turn on the fundraising taps.
Without a legal test or any guidance, the Hobby Lobby decision allows the barometer for one’s sincerity of religious belief to be at the whim and circumstance of those sitting on the Supreme Court. This is a dangerous precedent. For the first time in our history, a person’s religious belief is to be measured by the fiat of the subjective judgment of those then sitting on the Court. Simply put, by a majority vote, the Supreme Court can decide a person’s or denomination’s sincerity in the depth of their religious conviction and whether or not it deserves some special dispensation.
In this particular case, the lack of inquiry as to the depth of the Green’s conviction was extraordinarily convenient. Prior to being telephoned by the Becket Fund for Religious Liberty, Hobby Lobby’s insurance offered the exact same contraception coverage they came to find so religiously objectionable. To paraphrase: The Green family’s religious conversion was not on the road to Damascus, but over Verizon wireless and conveyed via a sermon by the corporation’s general counsel.
Another point causing general agita is that this decision protects the rights of the powerful at the expense of the rights of the powerless. Hobby Lobby’s revenue is over $3.0 Billion a year and it is closely-held corporation (another point unaddressed and undefined in the opinion). The annual cost of these types of contraceptives equates to a month’s salary for their minimum wage workers. The inequity here is staggering — creating a previously unrecognized religious right for five members of the Green family at the expense of over thirteen-thousand Hobby Lobby employees and untold millions more.
This case will open the floodgates of every manner of religious exemption. Companies will ask for exemptions from employment law because they will want to discriminate. Companies will want to alter their health insurance to eliminate vaccinations or transfusions. Companies will want to again raise the payment of taxes for such things as wars, drones, and cruise missiles. The floodgates have been thrown open, the Court should expect to be inundated.
Those are just some of the highlights of the problems with creating a right of religious freedom in a for-profit corporation, but let’s turn to “how can this happen?” How can we be at the point of relitigating an issue that was settled over fifty years ago? This is the particularly insidious part. This is the anger-making part. This is the pitchfork and torch part. This is also the most difficult part to simplify, but I’ll try.
Beginning in the 1980s, there was a small band of legal outliers who began championing a theory of constitutional interpretation known as “originalism”. It isn’t quite “strict construction” or “textualism,” though it dabbles in both for convenience of reaching outcomes. In terms of 1980s legal thought, the people who dabbled in “originalism” were about as mainstream as the Unibomber.
“Original intent” has a powerful political potency since it can be easily spouted by every half-witted politician and their dog, but in terms of intellectual scrutiny it fails miserably. Unfortunately, Justices Scalia, Thomas, and yes, Alito subscribe to this theory. Alito describes himself as an ardent adherent to originalism.
The Hobby Lobby case is a perfect example of how woefully inadequate originalism is. Even Scalia, the most well-known adherent, calls himself only a half-hearted originalist in his book, Reading Law. (Judge Posner of the Seventh Circuit, a long-time critic of Justice Scalia eviscerates Reading Law, the Heller decision, and originalism in an article entitled, “The Incoherence of Antonin Scalia” here.)
Originalism is allegedly a means of interpreting the Constitution by discerning the objective meaning of the words used at the time of enactment and then applying that meaning to a current case or controversy. The same holds true for statutory interpretation. If the statute is old, you use an old dictionary to discern the then contemporaneous meaning of the words used.
It is at this point the rotten underpinnings of originalism give way. Even though someone such as Scalia or Alito will claim to divine the original intent, ultimately, it is they who determine what that original intent was in order to contemporaneously apply it.
Let me say this another way: None of the Framers of the Constitution were immortals or even run-of-the-mill vampires. Their indelible intent died with them. Scalia and Alito would have you believe that by divining the meaning of the words by their generally accepted definitional usage at the time, you can discover their intent and apply it to modern situations, but they are the ones determining both the meaning and intent.
An example would be helpful here. Remember Employment Division of Oregon v. Smith I mentioned above about the two Native Americans fired from their jobs for ingesting peyote during a religious ceremony. Here’s a quote from the case:
Precisely because ‘we are a cosmopolitan nation made up of people of almost every conceivable religious preference’ and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order. Such a rule would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.
Twenty-four years later, the same Scalia joins an Alito opinion doing exactly what he warns about in Employment Division v. Smith, the creation of a religious test for the avoidance of a generally applicable law. A religious test without legal precedent or formula. A religious test where the Supreme Court decides who is and who isn’t sincerely religious. Without fear of contradiction, that is 180 degrees from the Framers’ original intent.
In short, originalism is a means to an end — a method of dressing up a conclusion with a plausible explanation of how a judge miraculously arrived there. It is a way to disguise an outcome with the wear and tear of an imaginary intellectual journey. If described in Vogue, it would have “the vibe of a constitutionally distressed look.”
Example one — Hobby Lobby. No mention of corporations in RFRA, that’s okay, Alito went to the Dictionary Act to supplant RFRA with a new definition that included corporations. No legal test for future cases, that’s okay, it is what we say it is. No discernible context for determining “sincere religious beliefs”, that’s okay, we will know it when we see it. The outrageous inequity of favoring the powerful over the powerless, that’s okay, let the government pay for contraceptives. If the government doesn’t pay, that’s just the price of religious freedom for five opulently rich gazillionaires based upon a medical fairy tale.
The Bill of Rights has always been seen as a shield for individual rights against the potential of an overreaching government — until recently. Over the last ten years or so, the Bill of Rights has been used as a spear and thereby, turned into an offensive legal weapon as a means to an end.
Groups like the Becket Fund, that have failed to politically achieve their goals of intolerance have changed tactics by turning the Bill of Rights into a weapon of the privileged few against the guaranteed protections of the many. This is wrong. This is dangerous. Correction of this legal distortion will be long in coming since the wheels of justice grind at an intolerably slow pace.
Just as I learned in Alito’s chambers, folk art can be pleasant. It can be eye-catching and attractive on its face, but if you are looking for depth or nuance, it leaves you lacking. The same can be said of the Hobby Lobby decision — while it is an attractive decision to some on its face, they and we will crave more depth, more truth, and greater intellectual integrity — what’s more, we deserve it. Constitutional paper mache doesn’t stand the test of time.
This is an open thread.
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