Hobby Lobby doesn’t have to cover
birth control in their health insurance plans.* At first, that might sound very reasonable to some
people – until you find out why.
To be completely honest, the both
social liberal and the financial conservative in me are substantially at odds
over this issue. Speaking of issues…
Let’s talk about “framing the
issue.”
This is something I talk to kids
about when I do the occasional Career Day at a high school or middle school. For the purposes of this conversation we’ll
ignore how weird it is for me to be invited to a Career Day to talk to a bunch
of 8 year olds as a criminal defense lawyer.
Inevitably, one of the kids asks me what you have to learn to be a
lawyer, or they have a pre-prepared question like “what are the important
skills of being a lawyer?” My answer to
that type of question always includes the phrase “framing the issue.”
I invite a kid in class (and I
always ask for the one who gets in trouble most for talking) to come to the
front and have a debate. Then I tell the
kid that his or her job is to convince the class to eat only one type of pizza
and they can pick whatever type of pizza they like. The kid then blathers on about how great
pepperoni is, and that it goes great on pizza – it’s salty and it’s delicious –
and it’s a meat so it goes good with cheese and tomatoes and sauce. Blah blah blah. At that point I tell the kid to sit
down. Then I tell the class: Little
Bobby here wants you to only eat pepperoni pizza. Little Bobby doesn’t want you to have
choice. But I think you should be able
to get whatever you want. If you want
just cheese, you should have it. If you
want peppers and sausage, you should have it.
And if you want to have pepperoni, you should be able to eat that too – but
it should be your choice. Who thinks you
should have a choice? And then all the
kids raise their hands.
I turn to little Bobby and I say:
“You lost, kid. Do you know why you lost?” Then he cries, hilariously. It’s because I cheated. I changed the question. Little Bobby got “convince the class to eat
only one pizza topping for the rest of their life” and I got “Isn’t choice
great?” The truth is that it’s much
easier to get people to agree to the second question. So I tell the class: “The moral of the story
is this: if the answer to your question sucks, get a NEW QUESTION.”**
That, kids, is lawyering. (and they definitely don’t teach it in law
school)
Back to Hobby Lobby. There are a million and one different ways to
frame the Hobby Lobby question (and lucky for us, framing is half off this week). Just a
few include: If you wanted to appeal (on
behalf of Hobby Lobby employees) to people who were corporation friendly but
were straddling the fence, you might say, “Can a non-public corporation qualify
as a person?” or “Can a corporation
actually practice a religion?” If you were a pinko commie liberal who wanted
a really negative reaction to the question, “Is it reasonable for a group of
elderly men to decide important issues about women’s vaginas?”
Lawyers usually differ pretty
drastically on how they frame an issue to the court. However, people on both sides of this particular case
tend to agree that the first 2 questions presented in the above paragraph are at least part of what we are arguing over.
And it’s strange that we’re
arguing over it because if you asked people on the street, probably 90% of them
would say “No” to at least one of the questions – either “Can a corporation qualify
as a person?” or “Can a corporation actually practice a religion?” Yet, we still seem to be asking the question.
And we may be putting the cart
before the horse a bit, so let’s talk about why the case came to be.
Hobby Lobby is a closely held
corporation, for profit, and is owned by religious people. They have the collective belief that life
begins at conception and it is against those people’s religious beliefs to
terminate life or use contraception.
The Patient Protection and Affordable
Care Act was hatched from a man named Obama in 2010. It is affectionately and not affectionately
referred to as “Obamacare.” For the
purposes of today’s conversation, we’ll call it the ACA.
The Department for Health and
Human Services (HHS) is involved in this lawsuit because it is the job of the
HHS to make regulations to enforce the ACA – and specifically in this case we’re
talking about employers’ duty to provide “preventative care” for women without “any
cost sharing requirement.” So the law
says that companies like Hobby Lobby providing group health care coverage to
provide preventative care. Most
specifically, we’re talking about whether Hobby Lobby has to provide coverage
for birth control. (It’s generally
accepted that birth control does more than just prevent conception, and is a
preventative for some…other…unwanted…lady part complications or disorders and I
don’t know how to end this sentence and I’m uncomfortable so I’ll just stop).
Hobby Lobby’s argument is that
the Religious Freedom Restoration Act of 1993 allows them to exercise their
religious beliefs and that the HHS is infringing on their religious freedom.
You may be asking, “why do we
have a Religious Freedom Restoration Act of 1993 if we already have the Free
Exercise Clause of the First Amendment?” and I assume you’re asking that question
to Sam Marcosson because I am not a Constitutional Law professor. He’s not here, so you’ll have to ask him
through Facebook. He loves that.
Speaking of Sam Marcosson – he said
this about SCOTUS’ Hobby Lobby Opinion: “The
Court holds that because the Government found a way to provide coverage for
employees of religious nonprofits, this is an alternative that could have been
used for employees of companies like Hobby Lobby -- and the RFRA requires the
government to look for alternatives before burdening religious beliefs. In other words, the decision doesn't
necessarily mean that employees of these companies won't get coverage for
contraception. It does mean, though,
that the Court has interpreted the RFRA in a way that is spectacularly wrong
and dangerous . . . and (in my humble opinion), which violates the Establishment
Clause.” Also, Marcosson might be the
only person who believes his opinion is humble.
Justice Ginsburg wrote a pretty
spectacular dissent in the Hobby Lobby case (Sotomayor joined and Breyer and
Kagan joined in part). It starts with
this quick jab to set the tone: “In a
decision of startling breadth, the Court holds that commercial enterprises, including
corporations, along with partnerships and sole proprietorships, can opt out of
any law (saving only tax laws) they judge incompatible with their sincerely
held religious beliefs.”
Which, in my opinion, really sums
up my problem with the Hobby Lobby case.
The opinion was reckless and leaves a wide open door for corporations to
violate the law because of the “corporate religion.” What kind of message is this supposed to send
about fair hiring practices, for example?
Ginsburg follows that up with an
on-point quote from the Supreme Court itself, “The ability of women to
participate equally in the economic and social life of the Nation has been
facilitated by their ability to control their reproductive lives.” Planned Parenthood of Southeastern Pa. v.
Casey, 505 U. S. 833, 856 (1992).
So Ginsburg’s point is that
allowing corporations to violate the law for “religious beliefs” goes too far,
and that birth control is important for women to stand on equal professional
and social ground. Not to mention the
fact that the Supreme Court has already held that the exercise of your own
religion doesn’t mean you get to steal home base with no repercussions. Another way to say that would be, “An
individual’s religious beliefs do not excuse him from compliance with an
otherwise valid law that the State is free to regulate.” That’s a quote from the Smith case where 2 Native American fellas exercised their religious
beliefs by eating some peyote, and were refused unemployment benefits. The Supreme Court of the United States
refused to say that religious beliefs could be used like a shield in such a
manner. But for some reason Hobby Lobby
gets the exact opposite treatment. They
literally used religious beliefs to excuse them from compliance with an
otherwise valid law. And SCOTUS let
them.
Also, corporations aren’t
people. And the day I see a Wal-Mart
fold its hands and say the Lord’s Prayer, I’ll believe that corporations can
exercise religion.
There are several more nuggets of goodness from Ginsburg's dissent but I'm going to let you mine those yourself. I have blathered on too long.
Next we’ll be arguing over
whether companies can refuse to hire gay people based on the reasoning of the
Hobby Lobby case in 3…2…
*Maybe. We don’t really know yet. It depends on “less restrictive alternatives.”
**Just about 100% stolen from a scene in the movie "Thank You for Smoking."
**Just about 100% stolen from a scene in the movie "Thank You for Smoking."
