Not That Anyone Cares, But Hobby Lobby

Potter Stewart wrote an opinion in the 1974 case of Geduldig v. Aiello.  Not too many people remember the opinion, because it was mercifully murdered by changes in the law in 1978, when Congress used to enact laws.  The question before the court was whether California’s denial of disability benefits for pregnancy constituted invidious sex discrimination.  The Supreme Court held it did not, as it would be costly to pay for pregnancy-related disability, and saving money was a rational purpose.

The dissent by Justice Brennan, noted that the Court gave short shrift to the discriminatory aspect of the exclusion of pregnancy disability benefits.

When, as in this case, the State employs a legislative classification that distinguishes between beneficiaries solely by reference to gender-linked disability risks, “[t]he Court is not . . . free to sustain the statute on the ground that it rationally promotes legitimate governmental interests; rather, such suspect classifications can be sustained only when the State bears the burden of demonstrating that the challenged legislation serves overriding or compelling interests that cannot be achieved either by a more carefully tailored legislative classification or by the use of feasible, less drastic means.”

But as much as the dissent saw denial of pregnancy disability benefits as a gender-linked issue, the majority saw no such thing:

There is no evidence in the record that the selection of the risks insured by the program worked to discriminate against any definable group or class in terms of the aggregate risk protection derived by that group or class from the program. There is no risk from which men are protected and women are not. Likewise, there is no risk from which women are protected and men are not.

This passage referred to footnote 20, which offered one of the most remarkable rationales ever:

The lack of identity between the excluded disability and gender as such under this insurance program becomes clear upon the most cursory analysis. The program divides potential recipients into two groups—pregnant women and nonpregnant persons. While the first group is exclusively female, the second includes members of both sexes. The fiscal and actuarial benefits of the program thus accrue to members of both sexes.

Pregnancy is not gender related, the Court held, because there is a group of nonpregnant persons who include members of both sexes.  You have to admit, Potter Stewart was pretty darned spry for an old man.

Let’s now remove the politics from Obamacare, since it would have been Romneycare if he didn’t have binders full of women. I know it’s painful to acknowledge, but let it go. The program covers contraceptive care, and some religious people think that’s awful. Some religious people think blood transfusions aren’t right either. Some religious people think plenty of stuff that other religious people think is nuts.  Some non-religious people think so too.

In Geduldig, the Supreme Court used higher math to change the equation from one of sex discrimination, requiring strict scrutiny, to one of pregnant persons v. nonpregnant persons discrimination, thus allowing rational basis to apply.  Same people. Different equation by rhetorical manipulation. Cool move, right?

Requiring a business (regardless of entity used to hold and engage in the business) to provide insurance for its employees can either be deemed an endorsement of the underlying medical procedures or no endorsement at all, based on the sort of rhetorical manipulation enjoyed by Potter Stewart.  It can mean everything or nothing based on where one focuses and how one divides up the definitions.

Sam Alito’s Hobby Lobby opinion says that closely-held corporations are made up of people, and those people are entitled to religious freedom without the government unnecessarily imposing its will in a way that conflicts with that freedom.  There is a law that protects a person’s exercise of religion, and Alito interprets that law as protecting the people behind the business, and their right to maintain a business consistent with their religious beliefs.

Alito’s argument makes perfect sense, if you accept the premise that, by characterizing the argument as one between the religious beliefs of the people behind a business and the government mandate, the requirement that medical care that includes contraceptive benefits is an affront to a person’s religious belief.

As Justice Ginsburg noted in dissent in Hobby Lobby, no one is forced to use contraceptives just because it’s part of the bundles of care required to be provided. If they do, it’s their “autonomous choice.”  Actually, she says it’s a woman’s autonomous choice.  That’s because this strips the choice from women.  Not all women, though, because like Stewart found in Geduldig, there are contraceptive users v. noncontraceptive users, and the latter includes both sexes.  Why should people behind Hobby Lobby be forced to compromise their religious beliefs in order to accommodate the god-hating contraceptive users?

Much of the opposition to the Hobby Lobby decision focuses on the many women who will be denied access to contraceptive care, and thus the right to make autonomous decisions about their own bodies and medical care. But the opinion is no more about the rights of women than it is about the religious freedom of the people behind the closely-held Hobby Lobby.

It’s only about a government program to provide insurance coverage to people, which they can use or not as they see fit or require.  The only endorsement, and it’s only an endorsement in the most abstract sense, is that a for-profit company abides by the law that requires it to provide its employees with health insurance.  So really, the Geduldig distinction is insured persons v. uninsured persons.  Unless you belong to the Church of Latter Day Uninsureds, it’s got nothing to do with religion. It’s just a bundle of medical care.

Everything else about this case is baloney. It always has been, and to the extent that there have been a million words murdered on any subject beyond whether people should be capable of obtaining whatever health care they need, it’s just the rhetorical gymnastics of Geduldig used to play games, to justify an outcome that defies reason.  It’s just about health insurance. That’s all it’s ever been about. Nothing more, no matter how one tries to manipulate the issue.



17 thoughts on “Not That Anyone Cares, But Hobby Lobby

  1. Simple Machine

    “and thus the right to make autonomous decisions about their own bodies and medical care”

    No. I am fairly sure that if Hobby Lobby did not demand that its employees not use contraceptives, not even as a condition of employment. It was your statement that was disingenuous.

    1. SHG Post author

      Read harder. That line was from a quote from the dissent, and was used to characterize a basis of opposition to the opinion.

  2. John Thacker

    I appreciate your opinion. I disagree, partially because I find the following analogy persuasive (or at least in the case of Plan B, which is available over the counter and fairly cheap; less so in the case of the IUDs):

    Suppose that, influenced by the deductibility of employee meals, employee meal benefits are quite common. While smaller employers and small worksites simply reimburse people for meals (up to certain levels, with negotiated prices and easier reimbursement at preferred vendors), larger employers almost always have employee cafeterias, though the actual food preparation may be outsourced to contractors working on site (like the self-insuring that Hobby Lobby does.) However, in recent years some jobs, particularly ones with lower paid employees, do not come with meal benefits, or come with skimpy ones like discount cards at a small number of preferred merchants only, with no accommodation for those with specific (and often expensive) dietary requirements, whether medically or philosophically or religiously called for. One thing often blamed for this is skyrocketing food inflation.

    Congress and the President, alarmed at this situation, passes a law allowing HHS and DOA (and their subsidiary organizations, the FDA and USDA) to regulate and ensure adequate meal coverage for all Americans. When the regulations are issued, thanks partially to influence by the USDA, a large number of meal categories are considered “essential” to a healthy diet and must be covered by any meal plan and served in any employee cafeteria at a large employer. These include several meat and seafood options, types of cheeses, and alcohol and coffee (based on research about the positive health effects of moderate drinking of both.) In a victory for the animal rights activists, only meat that has been slaughtered by stunning the animals first counts as fulfilling the obligation. All this comes as a surprise to several members of Congress who voted for the law that barely passed, saying that they think that such an expansive list of “essential” foods was never something that they envisioned. Still, the law gives the USDA the right to add foods to the essential list.

    Groups immediately protest. Vegetarians and vegans obviously want exemptions. Jewish and Islamic groups complain about being forced to serve treif and non-halal food; surely kosher and halal meat (and acceptable cheeses) would suffice, although kosher and halal slaughter methods are incompatible with the stunning requirements? Some Baptists don’t like covering alcohol; some Mormons go further and don’t want to cover coffee and tea as well, offering alternatives.

    The Administration makes an exception for religious organizations, and for, e.g., vegan and kosher restaurants to serve their employees the food prepared in-store. However, other corporations, like B&H Photo Video (owned by Orthodox Jews who close the store and do not let their website take orders on the Jewish Sabbath or holy days), receive no such exemption. People point out that the decision to eat this “unacceptable” food or not is up to the individual employee. No one is forcing the store owners to eat the food, simply to make it available. That large company worksites almost universally find on campus cafeterias to be most efficient is unimportant; anyway, it’s contractors who are preparing the food. After all, none of these companies investigate the habits of their employees to make sure that they aren’t eating treif, meat, or drinking alcohol during non-working hours. And many of their fellow congregants (or fellow vegans) have no objection to paying for these things for other people (or even directly cooking for them), so long as they aren’t forced to eat it themselves and have other approved choices. Why do these small objectors have to be so stubborn? The vegan (Jewish, Baptist, Mormon) owners reply that if people really want to eat meat (treif, alcohol, caffeine), they can do so on their own dime– but that costs money (a monthly cost no more than that of using Plan B once or twice a month), and it does seem a bit pointless considering that their employees will do so using money from wages from the vegan owners.

    In those cases, could I call it simply a “bundle of food,” that employees were free to consume or not? I suppose so, but I still would have a hard time saying that it had nothing to do with religion or other strongly held beliefs. And, just like the balancing test of “sincere” beliefs, I’m pretty sure I would treat differently a vegan not wanting to have to serve meat from someone who claimed to be a carnivore and refused to offer vegan options if the regulations called for that. The strength of the objections to meat, treif, alcohol, etc. are much stronger than the objections of people who claim to hate all vegetables. People do feel a stronger objection to something being prepared in their own cafeteria (or directly reimbursing it even) than they do to simply having it be legal, or even paid for out of something more removed, like general taxes.

    1. SHG Post author

      You can have food, or you can have food fights. One feeds. The other helps no one. We can all quibble over our deeply held beliefs that force no one to endure treif who doesn’t want to endure treif, or go hungry.

      Whatever. You left out gluten free.

  3. Valhawk

    I feel like this argument sort of ignores the elephant in the room of why does an individual’s religious belief carry over into an artificial entity designed to exist to shield personal assets from liabilities incurred by the business? It seems like the owner gets the best of both worlds, the company gets treated as them when it comes to rights and privileges, but they’ll piously proclaim how separate it is when an adverse judgment or creditor comes calling.

    I feel like there’s a compromise here, if people want to gain the benefit of the RFRA to exempt a corporate entity they own from aspects of federal law, then they have to give up the shield the corporate veil provides for their personal assets. Basically, if they want to impose personal values on that sort of entity then they should have some skin in the game.

    1. SHG Post author

      I ignore it because I wouldn’t allow the business entity, corporate, closely-held or otherwise, to avoid the duty to provide the bundle of insurance without regard to any objections (religious, philosophical or otherwise) to what’s included. But assuming that the nature of entity matters, you make an excellent point.

  4. Anonsters

    To quote a wise man: “Meh. Just, meh.”

    You can only draw your conclusion by assuming that your moral calculus is correct and exclusive, that no one could possibly consider the provision of health insurance, which included benefits deemed by that person to be morally wrong, to be itself morally wrong.

    There’s a well-rehearsed distinction in Catholic moral theology between formal and material cooperation with evil. Formal cooperation is ultra-bad. Material cooperation is less bad, but it’s still bad. What you describe as “the only endorsement” a company would make by providing the mandated coverage, the Catholic moral tradition calls material cooperation with evil.

    1. SHG Post author

      Or there is no moral calculus involved at all. I know, sounds impossible, but not if you don’t see it as a political/religious/gender/whatever football. It’s just healthcare.

      And if you don’t want healthcare, don’t get it. No skin off my nose, and I don’t care why. None of my business.

      1. Anonsters

        Yes, right, no skin off your particular nose. So for someone who thinks provision of health insurance, as an act, exists outside the universe of things that can be judged morally, it’s no big deal. But the whole point is that there are plenty of people for whom it is a big deal, because their religious beliefs point that way. And my point is simply that your view that provision of health insurance exists outside the universe of things that can be judged morally is just one particular view in the universe of views on morality.

        I’m Catholic. I’m also a flaming hippie liberal. So I have a weird relationship with the HL decision. On the one hand, I think it was absolutely the correct decision. On the other hand, I think the most important lesson we can take away from it is just how utterly insane it is that we rely on employers to provide health insurance for people. If we had a single-payer system, to which all taxpayers contributed through taxation, there would be no religious exemption and there wouldn’t be much of an argument for one, either (legally, anyway).

        1. SHG Post author

          But the whole point is that there are plenty of people for whom it is a big deal, because their religious beliefs point that way.

          What you are is a conscientious young man who grew up in the age of identitarian politics, where every interest group demanded that society be sensitive to its particular issues, and that the societal compact be rewritten so that no identitarian group’s feelings were hurt. That’s why you think this is normal. It’s not your fault. You don’t know any better.

          The concept isn’t new. Vonnegut explained it in Harrison Bergeron in 1961. Everybody has an “ism.” This is yours.

          1. Anonsters

            I don’t think the interests of every particular group should necessarily be taken into account. I do think religion is different in kind, though, from other “interests.” And I think there’s perfectly good reason that other people should also think that, in America, religion is different: viz., the religion clauses of the Constitution. (Yes, yes, I know HL was a statutory case and would probably have been decided differently had it been analyzed under the Free Exercise Clause. I think Smith was wrongly decided, too, and that RFRA is a good thing, insofar as it protects the values underlying the FE Clause.)

            1. SHG Post author

              Of course you think religion is different, because that’s your sacred cow. Feminists think gender is different. Minorities think race is different. That’s how identitarian politics works.

            2. Anonsters

              Well, all I can say is that it’s really not my sacred cow. If anything, it’s the single most confusing thing for me as someone who believes in our constitutional republic and its stated values, who is also Catholic.

              But enough about me. Let’s talk about you. I’m interested in your apparent (I could be wrong) willingness to write off the religion clauses. You don’t think their inclusion in the 1A demonstrates that religion has to be considered differently than, say, your local bowling team’s interests?

      2. Chris Ryan

        I have been staying clear of this topic mainly because the uproar has me totally confused. Knowing SHG’s tendency towards sarcasm (and not wanting to be publicly flogged too often), I have been leery to comment while trying to read the tea leaves.

        What utterly confused me (initially) was when you read the syllabus of the opinion in the Held (c) (3) section, it implied the existence of a work around used by HHS to deal this exact issue.

        When I dug into what the work around was, I was surprised at the solution which immediately prompted a series of goose and gander questions about the uproar. I don’t recall seeing as large of an uproar when HHS released their current work around, so I am note sure what changed that made it suddenly so bad.

        Correct me if I am wrong, but this decision reads (to me) as a simple equation of since we have an existing work around to deal with this specific problem, lets just use that rather then try to decide on the larger moral/ethical/whatever basis that may underpin this issue. It really seemed a cop out more then a major decision.

        1. Anonsters

          Well, one noteworthy thing about it was that it held that RFRA applies to for-profit corporations. I read the decision as warning off larger, publicly-held corps. from trying to take advantage of the statute, though, since it emphasizes that the corps. at issue in the case were closely-held ones. Basically, it seemed to me like they were saying that if a corporation can be seen as reflecting the beliefs (and so the policies) of some identifiable, small number of people, RFRA will apply.

          If by “the work around,” though, you mean the self-certification that HHS allows religiously-affiliated non-profits that object to the contraception mandate to file and so opt-out of having their sponsored plans include contraception-related benefits, some Catholic organizations (non-profits so far, as far as I know) have sued on the basis that even the self-certification represents a substantial burden on their exercise of religion. For example, the Little Sisters of the Poor case that the Court itself mentions in footnote 9 in the majority opinion. I have no idea how merely self-certifying represents a substantial burden on their practice of religion, so I should probably read up on that. But yeah, not everyone’s 100% kosher even with the solution the Court identified. And the Court said on p. 44 of the slip op., “We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims.” Ginsburg picked up on that in her dissent and was like, “So you’re claiming the mandate isn’t the least restrictive means, because there’s this accommodation, while also cautioning that the accommodation itself may not stand up.” But I’d be pretty surprised if the self-certification accommodation were struck down, given how much reliance Alito placed on in the majority opinion. If nothing else, I’d think Kennedy would jump ship and uphold the accommodation.

          1. Chris Ryan

            As to the first part of your response, I didnt see an issue with the court deciding that not all for profit businesses are the same. Without digging a lot harder into the business Hobby Lobby, and I have no interest in that, its hard to try to form a reasoned opinion on that aspect so I have defered.

            As to the work around, yes that is what I was talking about. My understanding of the opt-out is that insurance companies must still give the employees certain birth controls at no co-pay, its just no longer paid for by the group that opted out.

            As to the final portion, I think it goes to further my statement that the opinion was a cop out. I understand the philosophy of only ruling on the question they decide is put forth to them (at least at the SCOTUS level), but as a lay person, the implication strikes me as an argument that goes “Since A is the law and not addressed today, B must be ok as well, but if we were to address A it might not be legal at which point B might not be either, but we dont want to deal with A today, so B is cool!”

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