Nanosteps

In a nanostep for freedom, the Supreme Court this morning protected a small number of Americans from being forced by Congress to buy contraception insurance that they do not want. In a somewhat larger step backward, that small number of Americans were not chosen randomly, but instead were selected according to the religious beliefs of their employers. Whether this bodes well for future progress remains to be considered.

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47 Responses to “Nanosteps”


  1. 1 1 khodge

    The president keeps issuing exemptions to the law and that doesn’t seem to have caused any damage. Dozens of big cuts don’t do anything perhaps one small cut will open the way to innumerable small cuts with a cumulative effect. Under the present administration, nothing else can be done.

  2. 2 2 David Wallin

    I’m thinking of forming a religion where the basic tenant is that we believe we should be able to do (or not be required to do) anything that is prohibited to (required from) all but those with “the right” religious beliefs.

  3. 3 3 RJ

    Your blogging skills are weak. What gives?

  4. 4 4 Harold

    I presume this is Hobby Lobby? Of the justices who dissented “Ginsburg also categorically rejected the notion that corporations, even closely-held ones, should be able to exercise religious freedoms: “The exercise of religion is characteristic of natural persons, not artificial legal entities,” she wrote.”
    This seems a reasonable point.

    I would have thought that “lobby” in the name of the company referred to “a room providing a space out of which one or more other rooms or corridors lead, typically one near the entrance of a public building.” But maybe it actually meant the other meaning :”seek to influence (a legislator) on an issue.”

    I have not heard the term “closely held firms” before.

    It seems the reasoning is that “the government has failed to show that the mandate is the least restrictive means of advancing its interest in guaranteeing cost-free access to birth control,” Because “the federal government could choose to pay for contraception coverage, removing the companies from the equation.”

    Yet they also say that this would not apply to anything other than the contraception mandate. Would not the same reasoning apply to anything?

  5. 5 5 Alan Gunn

    My guess is that this bodes ill for future progress. Most of the religious people I know are all in favor of having the government limit people’s freedoms in all kinds of ways, so long as they get exemptions from the limits that bother them.

    However, it’s also the case that Hobby Lobby is a trivial case, despite all the heated rhetoric. For one thing, it’s an interpretation of a Federal statute, which Congress is free to change if it doesn’t like the outcome. Also, if Hobby Lobby had been organized as a partnership or a sole proprietorship, rather than as a closely held corporation, there would have been little or no doubt that it was entitled to the exemption. The case simply holds that the form of organization doesn’t make a difference, which seems obvious to me. The ruling quite plainly does not apply to publicly held companies.

  6. 6 6 Ken B

    @5 Alan Gunn
    Normally I don’t think simple, accurate comments need to be singled out for praise, but with the tsunami of bullshit flooding the internet on this issue, I want to praise this one.

  7. 7 7 Ken B

    @harold 4.
    Not really. The majority addressed this exact issue. Here a law professor states it well. http://althouse.blogspot.com/2014/07/the-difference-between-requiring.html

  8. 8 8 Ken B

    @2 David Wallin
    I can think of several religions which have beaten you to the punch. However as comments 5 and 7 elucidate, this won’t, under this ruling, give you the licence you seek. :)

  9. 9 9 iceman

    Probably wishful thinking but at this point I’ll embrace *any* recognition of individual rights, and hope that as the silliness of presuming to discern “sincerity” becomes apparent, the slope gets quite slippery indeed. E.g. what of ‘non-denominational’ moral objections? As has been noted here before, the 1st amendment appears to be one area that retains sufficient resonance to re-affirm some semblance of limits; maybe someday the court will address the issue of whether the ‘93 statute was necessary.

    I couldn’t access Ken B’s link for the legal sophistry, so I’ll just say to Harold’s question that having the govt directly help people to gain access to healthcare in general would certainly have been a more honest and transparent approach.

  10. 10 10 Alan Gunn

    @ iceman:

    The statute was necessary (assuming you think religion-based exemptions from laws are a good thing) because the Court ruled in Employment Division v. Smith that the First Amendment does not give people a right to be exempt from the application of laws because they have a religious objection to obeying it. The Hobby Lobby case has nothing to do with the First Amendment.

    Personally, I’m not fond of religious exemptions. If religious people get out of the obligation to buy health insurance because it covers particular contraceptives, why shouldn’t I get out of it because it covers quackery like chiropractic “medicine” and acupuncture? My objection is based on science, which ought to count as much as “I think this is what God wants me to do,” shouldn’t it? Congress, however, disagreed, almost unanimously, and so did President Clinton, who signed the bill.

    This country got along fine for centuries without a general religious exemption, because we had enough freedom so that the question hardly ever arose. Today, the government has taken it upon itself to regulate all sorts of details about our lives, so it’s becoming common for the law and one’s religious obligations to clash. Just as it’s becoming common for the law and rational thought to clash, but Congress isn’t about to create an exemption for rational objections. Perhaps if there were no religions exemptions, religious people would be fonder of freedom generally than they tend to be.

  11. 11 11 iceman

    Thanks. I too wish exemptions weren’t necessary – but as you describe, they’re in response to an eroding notion of freedom of association, so I don’t get why you say this has nothing to do with the 1st Amendment. We can easily think of laws that are necessary and proper and so for which exemptions are neither possible nor appropriate. Your other objections are good extensions of the principle that I hope causes us to slide down the slope with increased speed, as we more fully appreciate the problematic nature of an “obligation” to buy something (= less transparent re-distribution). I do like your last sentence quite a bit.

    BTW I’ve never bought this idea that if someone starts / owns / runs a business they forfeit the ability to carry through their values to a huge part of their life just because the word “corporate” is invoked. Again the freedom of association issue seems obvious.

  12. 12 12 Alan Gunn

    @iceman (11):

    The case has nothing to do with the First Amendment because the only issue was whether RFRA, a Federal statute, gave Hobby Lobby the exemption it wanted. It has been settled ever since Employment Division v. Smith that the First Amendment doesn’t give them that exemption.

    Perhaps the saddest thing about this whole episode is that people (of all persuasions) are screaming about it as if it were a major blow for or against [insert cause here]. It was about how particular statutory language should be construed. Courts are not supposed to decide issues like that by settling on the best policy. Justice Scalia, who wrote the Court’s opinion in Smith, would not have voted to give Hobby Lobby this exemption if the issue had been whether it was entitled to it under the First Amendment, but he did think they were entitled to it under the law that Congress enacted. Many of those complaining about the decision really don’t like the law in question. They should write their Congressman. Hillary Clinton, of all people, is objecting loudly to the decision. Yet her husband signed the bill into law, Did she complain then?

  13. 13 13 Neil

    Employer provided health insurance is COMPENSATION, thus it is the property of the employee not the employer. Neither the employer nor the government should determine how it is to be used. There is no First Amendment issue. SCOTUS is brain dead.

  14. 14 14 Harold

    #7. OK, I see it does not apply to anything, but would it not apply to any business, not only closely held ones? Also not only contraception, but all health insurance? Governments the world over provide direct health care without interfering in businesses, other than taxing them.

  15. 15 15 Alex

    How are they being FORCED to buy contraception insurance? Isn’t it just a tax to opt out of the insurance package? I mean you’re forced to pay taxes, but many people ARE opting out of the insurance.

  16. 16 16 Harold

    #15. From the judgement: “(b) HHS’s contraceptive mandate substantially burdens the exercise of religion. Pp. 31–38.

    (1) It requires the Hahns and Greens to engage in conduct that seriously violates their sincere religious belief that life begins at conception. If they and their companies refuse to provide contraceptive coverage, they face severe economic consequences: about $475 million per year for Hobby Lobby…”
    The fines imposed are considered serious burdens and thus within the scope of The Religious Freedom Restoration Act of 1993 (RFRA). This prohibits the “Government [from] substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability”

  17. 17 17 Roger

    The term “forced by Congress” is incorrect, as the ACA did not have a contraceptive mandate. That was invented by the Obama administration. It is more accurate to say that the court sided with Congress, and against Obama.

  18. 18 18 Ken B

    @12: Exactly.

    @13: Exactly wrong. Read 12 to see why.

    @14: The statute talks about “substantial burden” on persons. The burden on me can vary depending on the nature of my stake in the company. If I own Ford stock then I own such a small amount of Ford, and can easily divest. If I am the sole owner of a B&B then the burden on me is more direct, more onerous, and harder to evade. The burden is clearly more substantial in the second case.

    @15: Forced isn’t the issue. Substantial burden is. That’s what the FRFA says. Harold’s citation in 16 answers you.

  19. 19 19 Harold

    I have read a bit more today. I can now see why there are limits, but one limit I don’t see is for things like vaccinations. If a company thought vaccinations were immoral, I see nothing in the ruling to produce a different decision from this one. Also, the only methods of contraception disputed were ones that may have a post -fertilisation effect. What is there in the ruling that would be different if a company thought all forms of contraception were immoral? Would we have had the same result if Hobby Lobby were Catholic and refused to pay for all contraception? The issue seemed to be whether the company believed the actions were moral, and the court will not rule on whether they actually are moral.

  20. 20 20 Ken B

    @19
    No. It is not the company. It is the owners. This is why it matters what the relation of the persons to the company is. This is why the ruling was about the burden on the plaintiffs. This is fundamental.

    Now if *I* as the owner of my B&B have a religious objection to paying for vaccinations then yes it is probable that I am exempt under FRFA from paying for it. (Not a slam dunk because there can be a compelling government interest in vaccinations, but probably because the law requires the least onerous burden to achieve the end, and the government can easily pay for the vaccines, I would likely win.)
    FRFA does not require your religious belief be true or sensible or admirable or kind-hearted.

  21. 21 21 Ken B

    The high court in France upheld the ban on face veils. It was challenged on religious grounds.
    I wonder how many who lament the religious exception upheld in Hobby Lobby lament also that there was not one upheld in France.

  22. 22 22 iceman

    12 – Understood. But I would venture a guess that RFRA was in response to the Court’s “failure” to uphold First Amendment rights (kinda like some states clarified eminent domain protections after the Court’s abdication in Kelo). So where does all this leave us with respect to freedom of association, does it for some reason cease to apply as soon as commercial transactions are involved? None of this feels very “settled”, or settling, to me.

    20 – not true or sensible etc., just that your view be somehow deemed as “sincerely” held right? This is the laughably loose thread that I hope gets tugged on early and often.

    21 – Did the French government claim a compelling interest in the veils?

  23. 23 23 Ken B

    @22 re 20
    http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/06/30/the-religious-freedom-restoration-act-and-complicity-in-sin/

    Re 21 Implicitly they must have. Whether French law uses that phrase doesn’t matter I think.

    Re 12 i don’t get what you are asking. FRFA was passed when the USSC rejected a broad class of claimed religious exceptions under A1.

  24. 24 24 Harold

    #20 – I was using “the company” in the context of closely held companies. The ruling says that companies are people too! You as an owner of a B and B are not quite in the same position as running Hobbby Lobby with thousands of employees.

    The ruling states “Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.”

    The court accepted that the mandate served a compelling state interest, so it is not the relative importance of immunisations vs contraception that would be questioned. So whilst the immunisation case must not “necessarily fail”, there is actually no grounds for it to succeed if the Govt could provide direct funding. Similarly blood transfusions, gelatin coated pills, insulin from pigs etc etc. As long as the Govt could pay and the person / company sincerely believes it to be immoral, there seems to be no way to avoid this as a precedent.

    The disputed contraceptions work mainly by preventing conception, so there is some question about the immorality anyway. I think there may be a minor post-conception effect which opens th ewindow, so to speak. However, since the court does not rule on whether something is immoral. only if it is believed to be, the same ruling would presumably apply to a closely held company that believed barrier methods were immoral and not allow condoms etc to be covered.

  25. 25 25 David Wallin

    @13 Neil
    Employers giving their employees an employee discount (e.g., 25% off retail prices in our stores) is compensation. They employers are permitted (to my knowledge, and, I believe, should be) to determine on what items that discount applies and what subset of friends and family are allowed to use that discount.

    @all
    I just have to think about how much easier this would all be if the norm was to have the only compensation in dollars. My employer doesn’t have to question whether they should include rental car coverage in my car insurance or pay for a rider to cover my wine collection in my homeowner policy—I make those decisions as my employer doesn’t compensate me with car or home insurance. Of course, there are tax consequences that would have to be dealt with. BTW, I contend that we should all have to pay tax on all our compensation (with a reduction in tax rates), assuming we make the mistake of keeping income taxes.

    I just don’t get how believe that Groucho, Chico, and Harpo have rights as individuals, but the business they own (possibly only if they incorporate) is not a conduit of those rights.

  26. 26 26 Ken B

    @Harold 24:
    As I indicated, I think agree with you on the precedent in the cases you listed. This is because of the law’s requirement about “least” burdensome method. I am pleased to see you accept the court’s ruling is correct!
    In general I am not upset at the idea that if we want to provide something as a matter of entitlement that we provide it, rather than bullying someone else into providing it. If we decide everyone is entitled to a copy of The Hobbit, I’d rather have the government pay for it than force Barnes&Noble to distribute it free.

  27. 27 27 Harold

    “I just don’t get how believe that Groucho, Chico, and Harpo have rights as individuals, but the business they own (possibly only if they incorporate) is not a conduit of those rights.”

    If Groucho et al are to own the business outright, and not raise capital through shares, why would they choose a company rather than a partnership? Surely one major reason would be to limit the liability and attract beneficial tax rates. If they are to seek this substantial benefit not available to individuals, there is no reason there should not be limits to the conduit of rights from the person to the company.

  28. 28 28 Harold

    #26. We agree that there is a precedent. The court emphasised that this was not the case – perhaps they have been economical with the actualité?

  29. 29 29 Ken B

    @28 That doesn’t follow. And we don’t agree there is precedent. I agree there probably would be, but much might depend on the particulars. Certainly there would be no wide precedent for companies at large as your wording suggests.

    @27. Once again you agree with the court! The ruling makes clear there CAN be limits on that conduit. And absent the FRFA those limits would have caused Hobby Lobby to lose this case. Even in this case, whith FRFA, the plaintiffs have to show a substantial burden. They do not have carte blanche to assert rights that they could as individuals, absent the corporate conduit.

  30. 30 30 Tony N

    @29

    You mean I can’t cast a vote at the polls as an individual and then another on behalf of my S corp? ;)

    I’m just now seeing this post. Sorry I missed it, looks like a good thread.

  31. 31 31 Vald

    Ken B,

    The law is the Religious Freedom Restoration Act or RFRA. The law is not, and has never been, FRFA, as you keep referring to it.

  32. 32 32 Neil

    @25 David Wallin

    I doubt that employee discounts are compensation. Cash wages would always dominate discounts as a desired form of compensation. The only reason health insurance compensation is preferred over wages is the tax advantage it receives.

    Employee discounts are just profit maximizing pricing strategies, like discounts for seniors, veterans and frequent fliers.

  33. 33 33 BC

    “In a somewhat larger step backward, that small number of Americans [who will not be forced to buy contraception insurance that they do not want] were not chosen randomly, but instead were selected according to the *religious beliefs of their employers*.”

    Thanks, Steve. I haven’t seen anyone else discuss the *economic incidence* of the contraception mandate rather than the statutory incidence. (Maybe, economists are growing tired of making these types of points.) From the comments, it seems like many commentators have also missed your subtly made point: that it is the non-contraception-using employees, rather than employers, that are being forced to buy contraception insurance. Under the Hobby Lobby ruling, some employees will no longer be required to buy contraception insurance that they don’t want, depending on the religious beliefs of their employer but not on their own religious beliefs. (I hope no one will argue that employees that don’t want contraception insurance are not people and, therefore, don’t have religious beliefs.)

    Apparently, while the government can’t compel you to buy broccoli, it can either “tax” you for not buying broccoli or compel you to buy broccoli by requiring your employer to “provide you” with broccoli.

  34. 34 34 Ken B

    @30: Tony, Do you suffer from triscadecaphobia?
    :)

  35. 35 35 David Wallin

    @31 OK, free flights for airline workers (not deadheading). The point is that I contend I can construct a compensation package in which I should have a legal right to specify how some element(s) is(are) used.

  36. 36 36 Will A

    I personally like it when a company takes such a public stand for his/her beliefs.

    I’m thinking that all those who support Hobby Lobby should hand out fliers in Hobby Lobby saying something like:
    As you know, Hobby Lobby believes that those who use birth control are murderers. We want to thank you for supporting Hobby Lobby’s beliefs.

    I’m thinking this would be particularly effective in their California stores.

  37. 37 37 Will A

    @ Alan Gunn and Ken B (and anyone else who seems to know more than me about legal issues).

    I found the following link:
    http://www.pbs.org/newshour/rundown/hobby-lobby-decision-wont-change-many-state-laws-require-contraception-coverage/

    That mentions:
    But they are still likely subject to a ruling issued by the Equal Employment Opportunity Commission in the year 2000 that employers that fail to cover contraception as part of their health insurance benefit package are discriminating against women in violation of the 1978 Pregnancy Discrimination Act. That law was itself an amendment to the 1964 Civil Rights Act.

    Being that this was a clarification ruling on a statute is the following possible (whether or not likely):
    Hobby Lobby employees bring suit and the Supreme Court rules that even though employees don’t have to provide contraceptive coverage under RFRA, they meed to do so under Pregnancy Discrimination Act

  38. 38 38 iceman

    Proving yet again that important words like “discrimination” lose their meaning when they are co-opted by politicians.
    This just in: freedom of speech doesn’t mean I have to buy you a microphone. Even if I might decide to buy Ken B one.

    I’m still not sure what exactly is “settled” here and within what limits. We know the Court likes to rule on the narrowest grounds (especially where precedent and thorny social issues are involved) so it’s not a shocker if the RFRA provided that cover here. (I confess I have not read thru the ruling — did SC actually say they would not have granted this exemption if not for that previous law?) Again we can agree there are many laws for which we can’t simply let people opt out – was Employment v. Smith a response to some overly broad claims in this regard?

    BTW regarding the corporate form of organization (at least insofar as it involves public shares?) as representing a forfeiture of one’s ability to live out one’s values within one’s economic life: I would note that this is not merely some “loophole” or “favor” we bestow upon fortunate souls, for which we necessarily retain the right to claim redress later; limited liability is a concept “we” chose to adopt because of a perceived ‘public benefit’ in helping solve the holdup problem (see Coase) leading to more entrepreneurship etc.
    E.g. so what if shareholders voted in favor of reflecting a particular moral belief through the company’s business practices? It would seem a natural remedy for other owners to vote with their feet if they so choose. The line here seems quite arbitrary in terms of our commitment to freedom of association.

    David Wallin 25 – I like this comment very much, except I see no reason in principle why an employer couldn’t offer employees discounts on select merchandise.

  39. 39 39 Ken B

    @Will A 35
    You realize this is a crock, right? The owners of HL think certain things labelled birth control in fact kill a fertilized egg. They do NOT object to the pill or condoms. They do NOT object to birth control full stop. They do not object to contraceptives in particular. They object to certain practices which they say are abortifacient not contraceptive in nature. A contra-ceptive strictly speaking prevents con-ception.

    @37
    First, note the persistent error/falsehood about contraception. (This being PBS i am going with willful deceit.) HL pays for contraception now without objection. If a federal law required paying for abortifacients then we’d have a conflict. My money would be on FRFA, but that is a guess.
    I do not know how state laws would be affected.

  40. 40 40 Harold

    #38 there is some question a to whether the disputed methods are arbortifacients. The medically accepted view seems to be that the principle method of action is contraceptive, and so they are not abortifacients, but contraceptives. There does seem to be some evidence of a secondary post fertilisation effect. I am guessing that there is sufficient evidence for post fertilisation effect that this was not challenged. However, it does raise a point about belief vs evidence. If HL believed they were arbortifacients but in fact medical evidence said they were not, would that invalidate their claim?

    Also, if HL believed all contraception were immoral, in what way would that affect the ruling?

  41. 41 41 Gray

    Von Mises made a comment to the effect that loopholes allow capitalism to breathe. I would say that likewise religious exemptions allow liberty to breathe. Perhaps one day the tide will turn and we will restore first amendment freedom of association and other negative liberties to all, not just the religious. But in the meantime I think it’s better than nothing.

  42. 42 42 Ken B

    @39
    There is indeed some question.
    There are a few issues here.

    1. Was what Will A said a crock? Yes. HL objects to these as abortifacients. Saying HL objects to contraception is flat out false; saying it the way Will A does, the use of distortion and untruth to try to silence or shame opposition, is sadly reflective of the low standards of political debate in America today (you are welcome Will.)

    2. It doesn’t matter to the court case. They law isn’t about what those seeking exemption can prove, but what they sincerely believe.

  43. 43 43 Harold

    #40. So if they sincerely believe something that is scientifically proven as wrong, they still get the exemption? It seems to me that this probably was not at issue here anyway, given the element of doubt about the mechanism. But if I believed condoms caused the abortion of the fetus, it wouldn’t matter that I was plain wrong?

  44. 44 44 Will A

    @ Ken B

    I know that Hobby Lobby has publicly stated that he is opposed to the IUD and the Morning After Pill and has made no statements opposing the birth control pill (that I could find).

    Part of my post was of course mocking the types of statements that people put on fliers (and blogs).

    I do think though that we need even a higher bar than whether or not something is a crock for good debate.

    The following 2 statements are not crocks. I.e. they could be defended by the left and right:
    * Obama wants to steal your money (he wants to raise taxes).
    * Hobby Lobbby thinks that poor women who take the morning after pill are murderers (the morning after pill helps to kill a fertilized egg).

    My hope is that as good as you are at calling out these types of mis-characterizations on the left you will be as good as calling them out on the right.

  45. 45 45 Brian

    “In a somewhat larger step backward, that small number of Americans were not chosen randomly, but instead were selected according to the religious beliefs of their employers.”

    Steve,

    I know you made this argument in an earlier post also, but it still makes no sense to me. First, as other have noted, this does not “protect[] a small number of Americans from being forced…to buy contraception insurance that they do not want.” It protects the EMPLOYERS from having to provide coverage for potential abortifacients, which would violate the employer’s religious beliefs. This ruling does nothing for the insurance consumer. Second, the marginal effect of this ruling is strictly in favor of more liberty, not less, so it can’t be characterized in any way as a step backward. Employers now have more freedom than they did, and consumers are in exactly the same position–they can either choose to use contraception or not. Where’s the step backward?

    Let’s suppose we create an equivalent hypothetical. Americans currently have freedom of speech, yet the government through the FCC prevents owners of broadcast stations from broadcasting indecent language. Suppose the Court decided that these regulations violate the free-speech rights private owners and “closely-held” companies. Wouldn’t we agree that this is an expansion of free-speech rights? Would you argue that it’s a “larger step backward” because it doesn’t extend to big corporations or the individual people who make the shows? Somehow I doubt it. By the same logic, then, the Hobby Lobby decision cannot be viewed as a step backward.

  46. 46 46 Will A

    @ Brian #45

    The small step backward might refer to the fact that before this ruling companies closely-held by religious belief were treated the same as companies closely-held by atheists.

    This ruling seems to set up 2 different classes of closely-held companies.

    Yes, an atheist could just say that he has religious beliefs when he really doesn’t so what is the big deal.

    If a person doesn’t think this is a big deal, he would need to ask himself how he would feel if a religious person needed to deny his religion to take full advantage of a law.

  47. 47 47 Brian

    Will A,.

    At first glance you make an interesting point, but on a second look it doesn’t seem quite right. If an atheist owner had a moral objection to abortifacient aspects of contraception, like Hobby Lobby, wouldn’t they be able avoid the mandate also? If freedom of religion means anything, it has to based on what the individual says his or her religious/moral beliefs are, without being dependent on some official religious organization. In any case, the underpinning of any religious liberty is the 1st amendment, which is written broadly enough that it obviously includes those who choose to practice or believe in no official religion.

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