Whether you have or have not been following the Hobby Lobby Supreme Court saga, you should read this article on SCOTUSblog. The author, Snead, presents the decision of the court in clear terms and also spells out some of the potential consequences for other cases down the road. First, Snead clarifies why a corporation might have religious freedom:
Faithful individuals do not lose the protections of RFRA [the Religious Freedom Restoration Act] simply because they seek to practice their faith with others through a closely held, for-profit business.
This understanding is often lost in the discussions “corporate personhood.” I find it very intuitive that in a nation where we are guaranteed the freedom of assembly, we do not lose other rights because of how and why we choose to assemble.
Snead also notes that the Court assumed the government's interest in providing cost-free contraceptives, but did not actually decide the question. Thus this question is still open for debate -- and may well be debated when the next round of questions make it up to the Supreme Court in their figurehead, the Little Sisters of the Poor.
The Hobby Lobby decision doesn't make it clear what the outcome will be for religious groups who reject the government’s attempt at an accommodation. I have to admit, I didn't really understand religious groups’ objections to the attempted compromise until I read an accurate description of it:
In the case of self-insured religious non-profits, the self-certification form serves (by operation of the federal rule) as a legally binding directive from the objecting employer to its third-party administrator (TPA) that it must serve as plan administrator for the provision of the objectionable services.
I knew that religious non-profits were being asked to sign a form; I thought it was going to HHS, who would act as an intermediary, not directly to the health care provider. Myths abound in this discussion, and I was glad to at last get some honest light.
Prof. Snead is awesome! I love him!
ReplyDeleteYou pick the best quotes Beth, because they really do highlight the issues. "simply because they seek to practice their faith with others". The issue with Hobby Lobby is that the others with whom the Greens' insist on practicing their faith (their customers and employees) do not wish to practice faith with the Greens. What do you call a person who insists on practicing their faith with others who do not wish to practice faith with them? And specifically when that occurs in the context of an employer/employee or business/customer relationship?
ReplyDeleteFreedom of assembly actually has nothing to do with any of this. Freedom of assembly is only about literal assembly, being physically in the same place. I think what you were going for is freedom of expressive association, which is different. A lot of people, even a lot of lawyers, mix those two up. And neither is the same as religious freedom, which is what Hobby Lobby is based on.
As for the form being a directive from the objecting employer to provide the contraceptives, if that were true, I agree it would be troubling. But it isn't. It is nothing more than a statement of the objecting organization's beliefs. The directive comes from the government. And no court or legislature has ever understood religious freedom so broadly as to allow a religious objector to prevent the government from giving a directive to a third party. That would be like requiring the government to call off world war 2 just because the Quakers objected. Not that completely unprecedented interpretations of religious freedom seem to be a problem for the Supreme Court these days . . .
But let me see if I can pin you down on this: if the government actually offered an accommodation that used HHS as an intermediary, but still required TPAs and insurance companies to provide coverage of FDA-approved contraceptives to employees of objecting religious organizations, as the Supreme Court has currently ordered for Little Sisters of the Poor, would that be good enough? Would adding another level of paperwork, in which a government agency functions as a glorified router, really be acceptable to you? And to the Bishops? Or would we still be having exactly the same debate?
I just constructed a beautiful reply... and the interwebz ate it. I promise I will get back to you soon!
DeleteTake two. This is not worded very well, but I want to make sure I get it to you. I'm going to address your points separately:
Delete1) In America, we have a vast array of choices in the marketplace of employer/employee relationships and business/customer relationships. And this is a fantastic thing. There are companies for whom I would not work and whom I will not patronize due to their business practices/moral stances. Even if they offered the most competitive wages/prices. And there are groups with whose religious views I disagree, but whose practices I respect enough to still support.
2) I know this case is not a freedom of assembly case -- so I grant you the legal win here. However, I hold by the analogy. The freedom to be in one place together holds a lot less meaning if by getting together you lose the right to speak, write, publish, worship, create, act, etc.
3) I spent a lot of time trying to find the actual text of what HHS is asking of religious employers and came up with nothing -- though just now I realized I may have been Googling wrong, so I'm going to try again. The best explanation I found was actually in this USCCB response to HHS: http://www.usccb.org/about/general-counsel/rulemaking/upload/2013-NPRM-Comments-3-20-final.pdf. This issue is addressed in Section IV (p. 16), but the whole thing is worth a read -- much more in depth than any news coverage, regardless of bias. From what I understand, the basis of Snead's claim is that employers are being asked to submit a form that functions as "an instrument under which the plan is operated" to the insurance company (quote from EBSA Form 700). But the USCCB lays out fairly clearly how the insurance plan for which the employer pays, combined with this form still is the mechanism by which contraception is provided.
4) Let me clarify two important points: A) "I don't understand..." means that I do not have all the pertinent information regarding an issue and so I am confused. It does not mean "I disagree." If I disagree with something, then I do understand, but have reached the conclusion that said thing is wrong. B) I do not speak for the Catholic bishops. The bishops and many people who work for/advise them know so much more than I do on every aspect of this question. That being said, I would venture to say, based on the USCCB response above, that even the government acted as a clear intermediary, so that there was no communication between the employer and the insurance provider about contraception, there would still be problems with the distinction between "houses of worship" and other religious institutions. Which is more Catholic -- a group of nuns running a Catholic bookstore with a Eucharistic chapel or a Catholic parish? It is absurd even to ask that question. So I think (this is a tentative statement) that we would be having a debate still, just not "exactly the same debate."
(1) What you see as "fantastic", I see as ugly and disastrous. As I understand it, one of the basic ideals of the American business world, and one of the essential premises of a functioning marketplace, is that products (and in an analogous way employment contracts) are bought and sold based on nothing other than the quality of the product and the price. That is what allows a firm that makes a better product at a lesser price to sell their product and be profitable. And that allows everyone to get the best products at the best prices possible. And that is the essence of what a marketplace is. Any time a customer is selecting a business or an employee is selecting an employer (or vice versa) based on their ethical views about the business/employer/employee, that is a failure of the market.
DeleteMore than that, it is a failure of a core ideal of equality and religious liberty. The logical implication of your “fantastic” world is that sometimes someone will receive a lesser quality product or pay a greater price because they don't share the ethical/religious views of a potential business transaction partner. And that should never ever happen in a free society. That is somebody being treated as a lesser participant in the marketplace, and a lesser citizen of society, because of their religious views. That violates the core of at least my ideal of religious equality.
And that is one of the most important places for government to step in and correct the situation. These ideals about equal participation in society and the marketplace, and needing a well functioning marketplace, as I understand it, is the entire theoretical basis of most of our statutory civil rights laws, including the Civil Rights Act of 1965 (prohibiting racial and religious discrimination in restaurants, hotels, and movie theaters, and racial, religious, and sex discrimination in employment). I don't mean to be confrontational here, I mean this as a serious question that I would like to hear your thoughts on, but if we are to allow people to impose their moral standards on those they engage in economic transactions with, and people make decisions about who to transact with on that basis, then what was the point of civil rights legislation that applies to private businesses? Why shouldn't we have let businesses select customers and employees (or terms of employment contracts like wages) on the basis of race and sex and religion, and then let customers and employees decide which businesses to shop at and apply to based on those businesses discriminatory practices?
(2) I think I agree that the right to assemble in one place can't be premised on surrendering some other fundamental right, though Hobby Lobby is too big to ever assemble in one place, so I still don't see the relevance. I think what you're trying to get at is the right to form an organization, which if anything would be freedom of association which is part of the free speech clause, not freedom of assembly.
(3) The document you linked to is interesting, but it has some pretty big flaws in it. The first part (through the second to last paragraph on page 18) talks as though the money businesses pay to insurers is somehow still the businesses money, like businesses were simply depositing money into a bank account or trust fund to be spent on employees medical bills. And that's just not what insurance is. Insurance is a product, and like any other product, when the business pays for it, that money belongs to the insurance company that sold the insurance, for the insurance company to do with as it pleases. What the business is buying is simply a promise by the insurance company to pay employees medical bills as they arise. That's it. There is no money that the insurance company holds that is for the employees if a particular business, there is just the insurance companies bank account in which the insurance companies own money is stored. So all this talk of how the accounting works is just nonsense. And oddly enough, a couple of paragraphs later, it distinguishes an employee using their salary to pay for contraceptives on the basis that that salary isn't earmarked for anything. But payments to an insurance company work exactly the same way, they are not earmarked for anything.
DeleteThere is another idea here that I don't even know how to understand as a serious proposition, and that is the idea that an employees rights are somehow infringed by being offered contraception by the insurance company. I don't understand how anyone's rights can be infringed simply by being offered anything. If the employee doesn't want contraceptives, she can simply decline the offer, and is no worse off for it having been made. So that just makes no sense at all.
As to the fundamental issue of whether the directive comes from the employer or the government, I think it becomes very clear when you think about what happens when an insurance company disobeys the directive. If you give me a directive, and I disobey it, the person who comes after me for that is you. That's what it means for you to give me a directive, that you will do something unpleasant to me if I fail to comply. And that's not how the letter employers send to insurance companies works. If an employer sends the letter saying they object, and the insurance company just chooses not to provide the separate contraception plans anyway, the objecting employer doesn't have to do anything. It is the government that potentially comes after the insurance company in that scenario. And that means that in practice, as well as in writing, the directive is coming from the government, not the objecting employers.
(4) And here you've led exactly to the point I was trying to make. If catholics (you, or the bishops, or whomever, and I realize that you don't speak for them) say that it would be better to do X on this issue, and then we do X, and we still have complaints and lawsuits from Catholics about it, liberals are going to feel deceived and betrayed, and rightly so. You remember how pissed a lot of liberals, including some of the liberal justices, were when the male catholic justices said one day that Hobby Lobby was entitled to an exemption because the treatment of religious nonprofits was better, and then turns around a couple of days later and said that the treatment of religious nonprofits might not be ok either? Same thing. If you complaint that we're not doing X, and then we do X, it's not fair for you to then complain that we are doing X and not Y.
DeleteIn this case, the document you linked to seems to suggest pretty strongly that there is literally no way for the government to require insurance companies to provide contraception coverage that would be satisfactory to the Catholic church. It seems that the objection coming from the Catholic church is really an objection to the provision of contraception coverage to employees of catholics, period, full stop. And if that is the case, then it is unfair and deceptive for the Catholic church to complain about the particular administrative mechanism for doing that, as though other possible mechanisms would be ok. It seems that what we have here is a direct contradiction between the Catholic church's desire that employees of catholics not be provided with contraception, and the government's desire that those very same employees be provided with contraception. And if that is what the conflict is, then for the Catholic church to be a respectable participant in the dialogue, that is what they need to be talking about, that is the battle they need to be waging, that is the ground they need to make their stand on, not these irrelevant points about who is sending paperwork to who.