The Supreme Court heard arguments this week in Hobby Lobby vs. Sebelius, on whether business owners can be mandated by the Affordable Care Act to pay for employees’ contraceptives that involve abortifacients such as the “morning after” bill, which take effect after fertilization and are viewed by the business owners as a form of abortion. The Obama administration has steadfastly refused to allow limited religious exemptions for business owners in this dicey area.
“The questioning was sometimes technical but often unusually blunt and direct…. By the end of the argument, there seemed to be a tentative consensus that the two companies, both controlled by religious families, could be allowed to claim rights under the relevant law, the Religious Freedom Restoration Act of 1993, without opening the floodgates to objections from major public corporations.”
“Chief Justice Roberts wondered why, if a corporation could bring a claim of race discrimination, why couldn’t it bring a claim of religious discrimination? And, seeming to look for a way to rule narrowly for corporations, he suggested that the case might be decided by finding such protection only for corporations that are owned by a tightly limited group of shareholders.”
The upcoming ruling will impact cases heading toward the high court dealing with the right of religiously conservative small business owners to refuse assignments that involve servicing same-sex weddings, particularly expressive services such as creating floral arrangements or designing cakes with two grooms or brides atop. Progressives argue against religious exemptions here as well, citing the beloved slippery slope (first we fail to compel business owners to provide a service they feel violates their faith, next we’ll have anti-gay segregation).
Also on display at the Court during the contraception case arguments, the fear that allowing individuals to make faith-based choices will erode centralized authority: “So one religious group could opt out of this and another religious group could opt out of that and everything would be piecemeal and nothing would be uniform,” liberal Justice Elena Kagan fretted.
But other justices noted the difference between a small, independent business and large corporations. Ultimately, resolving the issue of self-employed florists and bakers might involve making a similar distinction.
15 Comments for “Religious Exemptions a ‘Slippery Slope’?”
posted by Tom Scharbach on
Progressives argue against religious exemptions here as well, citing the beloved slippery slope (first religious exemptions, then segregation).
Some have, some haven’t. My view is that “religious exemption” laws should be both issue-neutral and class-neutral, which, I guess, takes us down the dreaded slippery slope. I don’t fear it.
I know that a lot of people, of all political stripes, find that difficult to accept. But I can see no reason why religious objection to same-sex marriage is any more worthy of protection than religious objection to interracial marriage (class=race) or interfaith (class=religion) marriage.
But several justices in the contraceptive case noted the difference between a small, independent business and large corporations. Ultimately, resolving the issue of self-employed florists and bakers might involve making a similar distinction.
Tom Jefferson and I (and if I recall several others) have made that distinction clearly and, if I might be so bold, frequently. We’ve been arguing for that distinction, something similar to the exemptions to federal public accommodations laws relating to housing/lodging.
None of the proposed “religious exemption” bills currently before state legislators make the distinction. All eradicate it.
You’ve never mentioned the issue before. Is there a reason?
posted by Mike in Houston on
Actually, it was Justice Roberts and his distinction was “closely-held, private employers” (like Hobby Lobby) and publicly-held corporations (like Chevron).
But what if a closely-held, private corporation also has thousands of employees? There’s Hobby Lobby… as well as Aramark (259K), Cargill (140K), Toys-R-Us (68K), Koch Industries (60K), Dell (111K), Heinz (32K), Hilton Worldwide (147K)… you can look up the entire list on Forbes.
Some of these top employers are heavily dependent on hourly workers who really aren’t in a position to challenge their employer when it comes to the issue of the “company’s religious beliefs” versus their own private beliefs when it comes to contraception or reproductive services (or any other health-related issue that might come under religious scrutiny).
Who’s making the argument for THEIR religious freedom?
posted by Tom Scharbach on
I don’t have a problem with religious exemption so long as it is religion-neutral, issue neutral and class neutral, and so long as it is limited to small, family-owned and operated businesses, and the businesses give notice.
I think that anyone with a mustard seed’s worth of common sense realizes that there is a difference between a mom and pop bakery with a couple of employees and Walmart’s bakery.
If, indeed the Supreme Court is headed in the direction of “closely held” without “small” as a condition, we are indeed headed for trouble.
The reason is that we cannot avoid the slippery slope when deploying religious exemption without running afoul of establishment issues.
If a religious exemption is granted for abortion coverage, but denied for blood transfusion coverage, the government has set itself up as the arbiter of which religious beliefs are worth protection, and which not.
Because the government is forbidden to make such choices, the slippery slope is inherent.
posted by Mike in Houston on
What I suspect (but I may be wrong) is that the particular brand of evangelical Christians that are pushing this sort of thing DO want the government set up as arbiter of what religious beliefs are worth protection (namely theirs, and everyone else take the hindmost)…
It never occurs to them that this is what those “mooslims” did when the Taliban took over.
It also never occurs to them that they might be on the losing side of arbitration — much like that Louisiana legislator that pushed for state funding of private religious schools, who was shocked(!) when it turned out that money was flowing to a private Muslim school in New Orleans.
posted by jerrelt on
This brings up the proverbial “watch out what you wish for; you just might get it.” I don’t see how religious exceptions to civil rights could be carved out and meet constitutional muster unless they apply across the board to all religions, religious beliefs and religious groups. Just as you point out Mike, those Christian churches seeking the exceptions will not like the result when the exceptions apply to non Christian religious groups and are “religion neutral, issue neutral, and class neutral” as Tom points out. I completely understand Justice Kagan’s concern. There would be a terrible patchwork with different businesses discriminating against a myriad of different groups. As a gay man I could patronize “these” businesses but not “those” businesses. Each religious and social group would have their own different businesses they could patronize and those they could not. The result is further division among our citizenry, expanded into commercial activities. A book would be needed to tell us which businesses would accept whom. I see a nightmare division between different religious adherents, those who are divorced or not, those living without the benefit of marriage, and innumerable other moral behaviors. I see nothing good coming from such a division of all of us in the commercial world. This would seem to tie in with Justice Kagan’s concerns.
posted by Doug on
Wasn’t it the right wing making the slippery slope argument not that long ago. If we let same sex folks marry what about marry your dog, Santorum.
posted by Tom Jefferson III on
Wow, “size does matter” is an actual legal concept (although one that some people do not want to acknowledge that other people have already raised the issue)…..;0)
The ‘mourning after’ question worth pondering if — if the court grants the exemption — how difficult will be it for employees of ‘company x’ to obtain birth control — the think that x is no longer going to offer/pay for?
So, a business does not have to offer a plan that covers the ‘mourning after pill’ (my own views on abortion are a bit muddled and probably not worth digging into here and now)..OK, so if an employee needs such a pill, how is she going to get it?
Can the employee insist that none of its employees have sex outside of a heterosexual marriage and then ONLY for procreation? I see potential larger issues (if reasonableness is not a part of the exemptions package)…..
posted by Mike in Houston on
When Kagan broached this, the plaintiffs basically said: the courts are there to arbitrate on a case-by-case basis the validity of these things.
posted by Jorge on
In other words, a slippery set of stairs.
posted by Don on
I’m hopeful that employer-based health insurance coverage will go the way of the do-do on this one. It started as a way to attract top-flight workers after WWII. Then it became something all serious employers had to have. So then the top half of society had those kinds of jobs and therefore health care. Bottom half had free clinics.
When will conservatives start to champion portable healthcare? Freedom to choose your own plan? Decouple it from employment. We’re the only country in the world that does it this crazy way.
I’m afraid if they don’t get their act together soon, these endless roadblocks and hazards will eventually lead to single payer in my lifetime. If they genuinely believe that means death panels, they better quit dithering with these absurdly trivial cases.
As for religious exemptions, when are they going to start granting them to people who genuinely do not subscribe to the religious worldview that spawns these laws?
I’d like a religious exemption to the gay marriage bans, please. I’d like a religious exemption to abortion regulations. But I never will because it’s a one-way street. And it only goes for in the direction of those that are holier than thou.
posted by Tom Scharbach on
I’m afraid if they don’t get their act together soon, these endless roadblocks and hazards will eventually lead to single payer in my lifetime.
I’m hoping that we will see single payer in my lifetime. Medicare works well, from a user’s perspective, a lot better than the private insurance system is now working, anyway. But I’m old, so I’m not counting on seeing us move to single-payer in my lifetime.
posted by Lori Heine on
I definitely hear what you’re saying. As a liberal mainline Christian, who belongs to an inclusive church, according to my interpretation of the Bible, the “Christians” who would discriminate against me are the sinners. I believe that what they’re doing is highly objectionable to God.
I no more want to give them my money than they want to take it. But where are my religious exemptions?
posted by Mark on
Would the “progressives” expressing concern about the slippery slope include the Log Cabin Republicans?
http://purpleelephantrepublicans.wordpress.com/2014/03/24/talking-azs-sb-1062-with-gregory-t-angelo-of-log-cabin-republicans/
The definition of “progressive” sometimes seems a little flexible.
posted by Jimmy on
What do you bet that the vast majority of the crap sold in Hobby Lobby is made in a country that has abortion as a mandate, Communist Godless China. Has Hobby Lobby been concerned about this? Why are they seemingly OK with this particular business arrangement? It doesn’t seem that religious conscience should be able to be turned on and off, or applied situationally. It’s a bit like being a little bit pregnant.
posted by Doug on
It’s reported today that Hobby Lobby invests millions of dollars of their employees pension fund money in firms that make the morning after pill, IUDs etc.
Talk about hypocrisy. This pretty much proves there is no moral issue with contraception paid for by insurance.