Tuesday, July 1, 2014

Bonus Rights for the Faithful: Burwell v. Hobby Lobby Stores, Inc

I've read many responses to Burwell v. Hobby Lobby Stores, Inc., including one by Amy Davidson of The New Yorker which raised the point "... the Religious Freedom Restoration Act—whose Constitutionality, frankly, seems dubious if it means what Alito says it does..."
I'd like to pick up this issue. I'm sure others around the web have already made the point I'm making here - and they could hardly do so with less legitimacy than a legal ignoramus like myself (that is, I am ignorant of law - I have not yet been declared Ignorant in a legal sense) - but I haven't read one yet, and if I haven't, maybe you haven't, dear reader, in which case, hi.
It seems that the Hobby Lobby ruling has granted the devout another level of 'bonus rights.'  By protecting the religious against the burden of accommodating a socially- and scientifically-accepted financial obligation which conflicts with their sincerely-held religious beliefs, the SCOTUS has codified that the faithful have, by virtue of their faith, an avenue of appeal to the government unavailable to the faithless.
Atheists and agnostics cannot refuse to pay for insurance which supplies contraception (though I intend to speculate wildly as to what further implications this ruling, and the litigation which will inevitably follow, may have, we should be reminded that that is all this judgement says). Only the faithful can. As to how courts will determine the sincerity of an (corporate or human) individual's faith, I can't say.
Let's say four people would like to not pay for their employee's birth control-providing insurance.
One is an atheist cheapskate, who would simply rather not. 
The second is a person of religious faith, but they do not argue that the teachings of their faith prohibit birth control; they would just rather not. 
The third is an atheist who really, truly believes that birth control is wrong, but obviously not for religious reasons. 
The fourth is a devout member of a religion which objects to birth control.
Of course only the fourth man (or woman, just kidding, man) is granted the right to refuse to pay for that insurance by this decision. This is a Bonus Right awarded to those in a particular group of religions.

How will the government of the United States legislate whether a particular law is harmful to a particular religion? They will not, according to the majority opinion in this case. Instead, they will defer to the beliefs of the faithful litigants, as the SCOTUS deferred to Hobby Lobby's "religious belief" that these four birth control options cause abortions. They do not, in fact, cause abortions, but the courts accept that their belief that they do is sufficient to argue that harm is being done to the corporate person of Hobby Lobby.
This is by far the most bonkers. Could I (were I 'sincerely' religious) argue that my closely-held corporation should be allowed to dump garbage in the river, not because there is anything in my religious text against clean water, but because I believe that to not dump garbage is murder? Failing to pollute the river is not murder, and it can be shown to not be, but I believe it is. By the rationale of this ruling I should be deferred to, at least that far.
The government of the United States has always treated religion as a special subject, worthy of extra protections. Speaking as a fan of America but without any deep historical/legal knowledge, I'd say that the goal is that you're free to do as you please unless there's a law against it, and the only things you can't make laws against are religions and guns. (and other stuff but yknow snappy snappy) (the Church of the Gun would be so protected they wouldn't even need all their guns that shoot little crosses but they would keep them anyway) Consequently, religions have always enjoyed 'bonus rights' insofar as they don't need to worry about being made subject to laws, while other groups and behaviors may be legislated.
This ruling, however, gives religious INDIVIDUALS bonus rights - and those rights are defined by the religious individual, according to their own religious beliefs. Purely by virtue of being a person (whether that's a person or a, ahem, "person") of faith, you now have more rights than I do. You can excuse yourself from a shared, legally enforced social contract, and I cannot.
The moral is: join a religion, or enjoy diminished citizenship. Weak tea.

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