Let’s get the obvious out of the way – the biggest mistake in the ruling of Burwell v. Hobby Lobby is the sudden and inexplicable leap that corporations1 can form and hold religious beliefs. I suppose that seen through the vastly expanded lens of corporate personhood in the past decade this makes a sort of twisted sense, but to me, it seems prima fascia absurd.
Firstly, the Court asserts in their ruling that the Burwell decision is limited, then offers no reason why, exactly, it’s limited. The unsurpringly-all-Catholic majority stated that the decision only applied to the birth control mandate and only to closely held corporations. Simply stating that the decision is “limited” and offering no rationale for why it is is legally meaningless. There are (currently) 100 cases regarding birth control, and they don’t all involve closely-held corporations. It’s also very likely that they’ll win. Further, since the Burwell win, several other cases have been filed. Any lower court which examines these will look at the Burwell decision and rightly conclude that it’s not “limited” in any meaningful way. Evangelical Christians are kicking this door wide, wide open, and there is only glimmer of possible hope: hope that Congress will repeal the law that the decision is based on, the awful Religious Freedom Restoration Act (RFRA).
Around 150 years ago, the Supreme Court ruled that religion does not allow one to exempt one’s self from the law, in Reynolds v. United States. Because duh. Allowing religion to trump the law in a country where one is free to define what religion means to his or herself would make “religious belief superior to the law of the land, and in effect… permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.”.
150 years ago, this was unimaginable. A most extreme example would be practicing a religion that required human sacrifice – would any reasonable person assert that the law outlawing outright murder bow to such a belief? Surely not. But in the wake of the Burwell decision, the law bows to sincerely-held religious beliefs.
Just what constitutes a “sincerely-held” belief? Just about anything! Justice Alito pointed out that “no one has disputed the sincerity of [the company owners’] religious beliefs.” In fact, this is very difficult to do in practice. Sincerity can be challenged, but rarely is (unless you’re a prisoner) and sustained even more rarely. The reason is clear: the challenger would have to demonstrate a state of mind (extremely difficult) or brazen hypocrisy, and it’s easy to simply tweak the wording of one’s “belief” to get around the challenge. How brazen? Consider this: Hobby Lobby offered the same coverage at issue in the lawsuit, then dropped it right before bringing the suit – and it wasn’t challenged on “sincerity” grounds means that they’d probably have to march around with “We do not sincerely hold our beliefs” literally plastered on their foreheads before anyone would seriously consider a “sincerity” objection.
Speaking of hypocrisy, here’s the causal chain that the SCOTUS accepted as the reasoning behind Hobby Lobby’s sincerely-held beliefs being violated:
A believes that Drug X violates A’s religion
A owns a distinct legal entity, Company H
Company H buys a health insurance plan for its employees, as required
H employs Person B
Dr. C, B’s doctor, recommends and prescribes X for B
B personally chooses to take X
The insurance plan pays for X
Therefore, A’s religion is violated
One might wonder how a private citizen exercising her choice in consultation with her doctor would not render this causal chain broken, especially considering the Supreme Court’s repeated stance on school vouchers. They have repeatedly upheld sending public money to private (almost always exclusively religious) schools because they allow “individuals to exercise genuine choice among options public and private, secular and religious. The program is therefore a program of true private choice.”. Oh really? For the Court, the fact that the parents are choosing, privately, to send their children to religious schools cuts off any Constitutional issue with parents sending public funds to churches. But a woman deciding – in private – with her doctor and with funds from an insurance company isn’t enough to block Hobby Lobby’s hypocritical and pious objections? Are you fucking kidding me? Anyway, if the Greens truly cared about following Jesus, they wouldn’t be operating a for-profit company. (Don’t mention context.)
But that’s not even the worst part. The worst part comes down to the very reason the drugs in question are Bad Thing from the perspective of Hobby Lobby in the first place: their belief that the drugs cause abortions. (Medically, an abortifacient.) From the case:
The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients. If the owners comply with the HHS mandate, they believe they will be facilitating abortions…
“According to their religious beliefs…” That’s right, religious belief (as long as its sincerely-held!) can force scientific fact to be subservient to it. The Court has decided that the science-based fact that the drugs in question are NOT abortifacients can be ignored for convenience. An abortifacient is, medically speaking, a drug that will cause a miscarriage.
Physicians for Reproductive Health, the American College of Obstetricians and Gynecologists, the Association of Reproductive Health Professionals, the American Society for Reproductive Medicine, the Society for Adolescent Health and Medicine, the American Medical Women’s Association, the National Association of Nurse Practitioners in Women’s Health, the Association of Forensic Nurses, and others all signed a brief addressing the salient question: are the drugs that Hobby Lobby objects to abortifacients? Let us allow the group to answer this question for us:
Science says: no, these drugs are not abortifacients. Science spoke. You can disagree with that “opinion” all you want, but you aren’t qualified to. But that didn’t stop the five Catholic men on the Supreme Court from ignoring reality. That reality being:“The scientific evidence confirms that the FDA-approved forms of emergency contraception are not abortifacients.”. So if you think, as Catholics do, that every sperm is sacred, and that birth control like condoms and IUDs are abortifacients, that now legally trumps…science. Great.
The vast implications for this should be terrifying. Suppose ACME Coal Burners, Inc holds that their sincerely-held belief is that carbon dioxide is not a pollutant. Fabulous for them, since now they can exempt themselves from, oh, I don’t know – all of the Clean Air Act?
This, of course, allows ACME Coal Burners to save money by ignoring regulations that require them to be careful about what sorts of chemicals they release into the atmosphere, dump into the water supply, and puff into our collective lungs. The price of their electricity can now be cheaper, and their prices can be lower than their competitors. Now every company has to do this to stay competitive. Is this a world you want to live in?
This is not a great leap I’m making here. Petrochemical companies are already notorious for thumbing their noses at industry regulations, either by throwing unimaginable sums of money at lobbying, outright ignoring the regulations and happily paying fines that are little more than slaps on their proverbial wrists, and resisting cleaning up their resultant messes. Looking at you here, BP. It will not take long for companies to realize they can simply get out of following the law Because Religion. Care to imagine which industry offers the greatest nightmare scenario? The pharmaceutical industry? Insurance companies? Automobile makers? Who needs food safety when the companies producing food convert to Christianity and decide that since the Bible has nothing to say about cleanliness in food preparation, they shouldn’t, either? Don’t want to appoint any women to managerial positions? 2nd Timothy has some great news for you. Don’t want to serve Black people at your establishment? You sincerely believe that the descendants of Canaan are cursed, and you may now refuse to serve them. (Genesis 9:25). What if the owners of Amalgamated Industrial Widgets are fundamentalist Muslims, and hence require that all women that work there wear a full burqa? Think Evangelicals would be crowing about a win for “religious liberty”?
The concept of a corporate veil and the separation of church and state exist for very good reasons: it is in everyone’s best interests that they are there. The Evangelicals trumpeting the Burwell decision as a win for them are being short-sighted – they’re happy because it’s their religion, but it could just as easily be someone else’s religion. And that’s the point – we live in a pluralistic society. That’s reality. Not everyone has your beliefs. And when we allow the veils between religion and the state to be compromised by allowing religion to pass through the corporate veil, we do ourselves a huge disservice. Tomorrow, it won’t be your religion. Tomorrow, it will be the Hated Other, and you’ll be Shit Out Of Luck. Religious liberty should not – can not – allow you to tell other people what to do. Your liberty – like mine – is not absolute. Not even in the United States, where we so value our religious liberty.
Exit, stage left
Sparks
1: Yes, I’m aware that the ruling, currently, only applies to so-called closely-held corporations, which is basically meaningless as far as expansion of the decision is concerned. Closely-held corporations are about 90% of American corporations.