On the last day of the Supreme Court’s term an NPR
commentator knowing that the decision in
Burwell
v. Hobby Lobby
would be coming out in a couple of hours, described the case
as the intersection of the Affordable Care Act, reproductive rights, and
religion. With these three hot button
topics coming together its no wonder this was the biggest case of the
term. It also was one that not only
divided the country, but also the church.
How truly divisive the issue is became evident when a colleague who was
part of the team that put out the church’s response (which described the church
as being “encouraged” by the decision) came in the next day noting that his
wife demanded to know what he was thinking. (See Adventist Church Encouraged by Court's Hobby Lobby Decision)
My colleague’s wife was not alone; a lot of church members were
not pleased. The most extreme were upset
we took the side of the “Catholic Supreme Court “(all of the justices in the
majority are Catholic) but the more reasonable felt the court had gotten this
one wrong. That the goal of providing
women with contraception outweighed any religious liberty concerns.
So what was the church thinking? Why weigh in on such a divisive and
controversial issue? The short answer is:
because the larger issue the court decided matters to the Church. For the Adventist Church it was not whether the
government could require denominational employers to provide the drugs required
by the ACA, because the church does that.
Rather, the issue was the Supreme Court’s interpretation of the First
Amendment and the Religious Freedom Restoration Act (RFRA).
The First Amendment and RFRA together provide some of the
strongest religious liberty protections in the United States. Had the court ruled against Hobby Lobby, the
damage to RFRA and religious liberty would have been significant. Having worked hard—along with other faiths—to
pass this law the church could hardly remain silent while its fate was determined.
For many critics of the court’s decision, the issue of
women’s health and reproductive rights strikes at the core of their
identity. Any position viewed as endangering
women’s reproductive autonomy or rights is bound to evoke strong
reactions. These issues are so important
that for many they trump just about any other concern or interest, including
religious liberty.
The task of weighing competing interests is at the heart of
almost every religious liberty debate.
Few people, especially in western countries, seek to restrict religious
rights simply for the sake of doing so.
Rather, there is some other value or interest that conflicts with a
religious belief. For example, a church
member wants off on Sabbath and the employer needs work done on Sabbath.
If the court were only weighing two competing rights this
would have been a less crucial case. No
single right, whether religious freedom or reproductive rights, always
wins. But balancing competing interests was
not the primary issue. To be sure, the
administration felt that providing cost free contraception was more important
than any religious liberty interest. But
what the government argued was that a for-profit corporation is entitled to no
religious liberty protections and therefore no balancing of interest was
necessary. The government just won.
Many people are uncomfortable with extending religious rights
to for profit companies because they feel it gives corporations rights that
should be reserved only for natural people. This is a curious argument because despite
the heated political rhetoric that “corporations aren’t people” we routinely give
companies “rights” without controversy.
What is unusual is denying constitutional rights to companies, not
granting them.
If Congress tried to outlaw NBC making fun of the President,
not only would Saturday Night Live and the Tonight Show be a whole lot less funny,
the life expectancy of that law would be measured in hours, as the courts would
strike it down so quickly. If Congress
tried to prohibit Exxon-Mobile from lobbying to allow offshore drilling more
people might think that is a good idea, but courts would take only slightly
longer in finding the petition clause of the First Amendment violated.
The protection of the First Amendment goes beyond Jimmy
Fallon making fun of President Obama.
While it has not always been popular, the courts have extended First
Amendment rights to “exotic dancing” establishments—cases the Adventist Church
often relies on when defending the rights of our student literature evangelists
to go door-to-door during the summer.
While the First Amendment does not give these business owners
carte blanche, there is no question the
First Amendment is in play. Put more
starkly, to argue that Hobby Lobby gets no protection under the First Amendment
is to argue that it gets less protection than a strip club.
The anomaly isn’t that corporations get rights under the constitution;
the anomaly is that the free exercise clause of the First Amendment is given
second-class status. Virtually every
other part of the Bill of Rights applies to corporations just as it does to
natural people.
A common argument for not extending religious liberty
protections to shareholders and corporations is that by incorporating and
putting “space” between the owners and the company, the owners’ religious
principles are not impacted. The
corporate structure serves to partially insulate owners from some
liabilities. Therefore, the reasoning
goes, these owners should not get to have it “both ways”—protection from
personal liability and protection of personal religious beliefs. In other words there is no moral complicity
for the owners for decisions made by the corporation they own and control.
In other contexts this logic is not followed and in fact,
flatly rejected. Society often imputes
moral culpability of the actions of even a large, publicly held company (which
is not the case with Hobby Lobby) to its stockholders. This is why the Adventist Church, and many
others, screens its investments so as not to invest in companies making tobacco
or alcohol. If it turned out that the
Adventist Church owned 10% of Philip Morris (which, to be clear it does not) most
people would see a contradiction with the church’s health message despite PM’s
corporate form. Would the Greenpeace
invest in BP other than to show up at a shareholders meeting to cause
problems? It seems to only be when
talking about religious rights such a constrained view of moral responsibility
is adopted.
These concerns of moral complicity are magnified even more
when you are talking about a closely held corporation such as Hobby Lobby. Hobby
Lobby’s owners have a long history of running the company according to their beliefs. Among other things, the stores close on
Sunday because of religious concerns of breaking their Sabbath.
While as Adventists we do not agree with their choice of
day, we certainly should be sympathetic to business owners trying to operate
according to God’s desire. It’s hard to
read the Bible as having a “business judgment rule” that insulates owners from
the decisions they make through a corporation.
Reproductive rights advocates would argue that providing
contraception is not the moral equivalent of being a big tobacco company or Anheuser-Busch. And they are right, it is in fact worse if
you believe these drugs cause death of a human life. For many people, paying for these drugs means
being morally complicit in murder.
Comparing the drugs in question to murder infuriates those
in the reproductive rights community. They
vehemently disagree with the premise (abortion is murder) and the factual predicate
(these drugs cause abortions). In fact
there is a legitimate question whether these drugs do in fact cause
abortions. There is evidence both ways,
and the Adventist Church, while implying they do not cause an abortion, leaves
that decision up to individual members. And
of course whether abortion is murder is a debate that society will never solve.
But neither of these issues was for the Supreme Court to
decide. We do not want courts
determining the truth or falsity of people’s moral beliefs nor do courts want
to be. One can disagree with another’s
religious beliefs. But it is not
appropriate to say they are unworthy of protection because you don’t share them
or they are “wrong”—no matter how much scientific evidence you have.
To say that religious freedom requires a balancing of rights
is as trite as it is true. But a
balancing test is not what the administration argued for. The government argued that the Hobby Lobby never
got to square one, that no religious liberty right existed and that no
religious liberty interest was at stake simply because Hobby Lobby is for-profit.
This is a dangerous road to take, that religious liberty is
absent when it comes to making money. When
people of faith are excluded from the economy, or compelled to chose between
their religious beliefs or earning a living, that starts to look an awful lot
like not being allowed to buy or sell.
No one should be forced to choose between making a living (even a very
good living) and their faith.
This was not a case where Hobby Lobby sought to force its
religion on its employees. It never
sought to ban its employees from using birth control like the Adventist Church
bans its employees from consuming alcohol.
Rather, the only imposition on the employees was economic. No employee was claiming it violated her
constitutional rights (religious or otherwise) to pay for her own birth
control. Hobby Lobby sought not to pay
for something it objected to, not prohibit its employees from using these
drugs.
Arguing that employers’ religiously motivated decisions are improper
if it costs the employee any money is also problematic. There are many decisions employers make that
have a financial cost on employees. For
instance, under this logic an Adventist who closed her business on Sabbath is
also in the wrong because she is depriving her employees of the “right” to work
on the Sabbath thereby costing the employee money.
While the Court ruled in a way that upheld RFRA and
strengthened religious liberty, it further polarized the issue, and that is, as
they say, a very bad thing. This has to
change if we hope in the long run to protect religious freedom. This cannot be the issue of one party and
historically it hasn’t been. RFRA passed
in 1993 unanimously in both the House and Senate and was signed by Bill
Clinton.
The Adventist Church is in a unique position to show
leadership that religious liberty is not a partisan issue. One of the church’s strengths is that it has
a true diversity of views not common to other denominations. The Church will continue its non-partisan approach
to religious liberty. But in this case,
the Church had little choice but to stand up for a law crucial to religious
liberty no matter how controversial.
