July 1, 2014

Religious freedom

I started to write a post on religious freedom yesterday morning.  In that instance, I was referring to this example from Huntsville, Alabama, where locals suddenly realized that the right to have openly religious prayers start their city council meetings might also include people praying who weren't Christian.  Religious liberty for me, but not for you.

As I have noted before, I think this is one of the least understood freedoms in American history.  Skewed because Christians mistakenly held priority status (and not all Christians, just certain versions depending on the region) in the public square.  That has led many to cry "persecution" when that priority status changed to being just "one of the religious influences."  Hence the hue and cry about the Ten Commandments.

But yesterday, we learned that religious liberty applies also to corporations.  Evidently (and I missed this in Sunday School), corporations can be Christian.  I am not sure how that happens, of course.  Most traditions have an idea of how someone declares their faith, and many want that to be public and even followed by baptism.  I have no idea how a corporation becomes a Christian.  Perhaps through a press release.

The dust has not settled on the SCOTUS ruling on the Hobby Lobby case.  For one thing, there is a possibility that this ruling does not mean that HL employees don't get contraceptives--but that the contraceptive coverage might come directly from the government.  Kennedy suggested that there was, in fact, a state interest in providing contraceptives, but that the corporation should not be required to do so.  So what does that mean?  One of my friends noted that the government is unlikely to want to provide Plan B to women--we can only imagine the outcry from conservatives on this one.

But regardless of that outcome--we have a really weird ruling.  The court was explicit that this didn't apply to other religious objections (blood transfusions, vaccines, doctors), but as many have noted, there doesn't seem to be a clear reason as to why those other religiously held objections are not valid.  Why did the court decide that this particular corporation's particular religious objection to this particular healthcare issue was worthy of court sanction?

I think we are seeing the violent gasps of conservative Christians seeing their power and privilege fade away.  I am unsure how this will unfold, of course, but I do think that the law of unintended consequences might play a big role here.


leighton said...

I agree that this is a terrible outcome. I have to admit that I find Kennedy's argument persuasive that the least intrusive way of handling the birth control issue within the constraints of RFRA 1993 is to have the government fund it, rather than require employers to fund it. I am not at all impressed by RFRA - I appreciate that the point was to curtail federal land grabs from Native American tribes, but it strikes me as overly and unnecessarily broad. I wonder if it would have passed unanimously if legislators had known that 21 years later, it would have granted religious freedoms to corporations.

Noah Smith said...

I think what really pisses me off and is so, I dunno, inconsistent about this decision is that the root of the court case has nothing at all whatsoever to do with religious ideology. It has everything to do with a conservative not liking Obama. This was never a court case about religion and belief.

steves said...

A corporation is a legal fiction. This isn't anything new and I really don't understand why people continue to have difficulty understanding what this means.

I have only skimmed the decision and will admit that free exercise jurisprudence isn't an area of law that I can claim any kind of expertise. From the uproar on both sides, it is clear that most people either haven't read the decision or haven't bothered to look at the RFRA or any of the other cases. The best write up I have seen so far is from Eugene Volokh for the Washington Post. Regardless of what you think should happen, this decision was likely the most appropriate given what the law says.

Streak said...

Can always count on Steve to call me ignorant. Thanks, buddy.

leighton said...

I don't believe this sentence from Volokh is true or fair: "[W]hen a law requires such a corporation to do something that its owners believe to be religiously forbidden, it burdens the religious freedom of those real owners, and not just of the fictional corporation itself."

There is no law requiring a business owner to continue owning a business. If a business owner believes it would be wrong to follow the law, their clear and simple choices are to comply with the law or violate the law, just the same as everyone else. By incorporating, the fact that they run a business has granted them the unjust (though not illegal, now) license to pick and choose which federal laws they will abide by. Thus, corporations have been granted new religious freedoms.

Streak said...

My bad. Steve called us all ignorant. And Eugene Volock is evidently the gold standard. Any legal expert who disagrees is also ignorant on the law.

Streak said...

Knowing I will be an idiot for daring to find this a bad ruling, I am still wondering how the corporation defines its religious beliefs. This applies to "closely held" which includes many of the largest corporations in America. Some of those are held by families, and others are not. Does a majority of those holding the stock have to believe a certain thing? What if one of the stock holders sells his to another distant relative who is a goddamn liberal hippie? Would that change the court's ruling about this particular corporation?

I know I am dumb, but I also think there is a compelling state interest to make sure that contraceptives are available. Not only for those women who require them for non-sexual needs, but just the simple compelling state interest in not having unwanted pregnancies.

leighton said...

I think it was a "good" ruling in the narrow sense of complying with existing legislation, though of course not "good" in any meaningful ethical or social contract sense. I think most legislation that defends religious freedom encroaches on the freedom of everyone else.

Definitely agree there is compelling state interest in making sure birth control is readily available, but it's hard to argue there's a compelling state interest in forcing corporations to pay for it when the government really ought to be doing it. But you know my bias toward single-payer healthcare.

Frustrating, and a nasty situation all around.

leighton said...

I too am confused about the reasoning for restricting this to closely-held corporations (not that I mind that the damage is at least partly mitigated). I need to learn more about corporate law for any of this to make sense to me, I think.

steves said...

Can you show me where I called you or anyone else ignorant? My comment was more directed at people that have continued to say stupid shit like, "oh corporations are now people and suppose they will be able to vote" or, "I suppose corporations will now be allowed to get married." You have said more than once that people are entitled to their own opinions, but not their own facts. This is one of those times.

Leighton, I agree that corporations shouldn't be allowed to ignore some laws, but I get the impression that the RFRA allows the result in this case, as opposed to them just being allowed to opt out of any law.

A closely held corporation differs from other corporations and are typically owned by a few people or just one person. I think the Court is drawing a distinction between these and corporations that are run by a rotating board of directors. I agree that if one of the owners is a dirty, drum circle, hippie, they would have a hard time making the religious argument. I also think that this may open the door to all sorts of litigation.

I don't know what kind of insurance y'all have, but I have worked in a variety of places that denied certain types of coverages (e.g. some medications and some procedures). Frankly, I think this is a good argument for universal health care and removing the employer from the equation.

Streak said...

"This isn't anything new and I really don't understand why people continue to have difficulty understanding what this means."

"From the uproar on both sides, it is clear that most people either haven't read the decision or haven't bothered to look at the RFRA or any of the other cases."

You are correct. You didn't use the word "ignorant."

Streak said...

I am certainly in agreement that single payer is preferable. But I am looking at a world where Republicans believe that the ACA is Hitleresque, and we don't even want to imagine what they think of "socialized medicine."

I will certainly concede that this might be an unintended consequence of RFRA, but am still not sure there isn't room for intelligent debate about the idea that a corporation can have religious beliefs.