On the Aftermath of Hobby Lobby

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Tod Kelly

Tod is a writer from the Pacific Northwest. He is also serves as Executive Producer and host of both the 7 Deadly Sins Show at Portland's historic Mission Theatre and 7DS: Pants On Fire! at the White Eagle Hotel & Saloon. He is  a regular inactive for Marie Claire International and the Daily Beast, and is currently writing a book on the sudden rise of exorcisms in the United States. Follow him on Twitter.

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200 Responses

  1. Avatar greginak says:

    1- Well to be fair, lots of liberal types, not just me, having been saying that for a long time. BC is still a major offense to a lot of people on the RIght. Not all that is to be sure, but to a significant, and loud, group it is. People tend to not want to see that since for plenty of conservatives and everybody else BC is not a hot button so they just don’t get it. BC= girlz are loose really isn’t hyperbole for a solid section of the right.Report

    • Avatar Saul Degraw says:

      Not only is BC a major offense, there seem to be plenty of conservatives who think Griswold and all subsequent Birth Control cases were wrongly decided because there is no right to privacy in the Constitution.Report

  2. Avatar greginak says:

    PS That pic on the front page with the umbrella lady and stork is great. Perfect.Report

  3. Avatar zic says:

    The biggest part of the girlz-gone-wild because of BC that bugs me most is that it totally ignores the fact that married women use BC, which is why the average family size is now 2.3 or some other fraction of a child instead of 6.7 or something like that. It’s not just about not getting pregnant, it’s about deciding when to get pregnant and how to space your children. This is huge.

    And it’s about a whole lot of other medical conditions that only plague those of us with lady parts. We women don’t deny prostate, scrotum, or penile treatments to men that are necessary for their health and well being, including treating their erectile dysfunction so that they can get it on.

    At it’s most basic level this is about women’s medical privacy and right to control their own bodies. That audacity of intruding on that privacy galls.

    arrrrrrrrrgh.Report

    • Avatar Gaelen says:

      But zic, if a woman is married then her husband can afford birth control if he wants her to use it. If he doesn’t, we’ll she shouldn’t be undermining his authority anyways. /sReport

      • Avatar zic says:

        @gaelen

        The tropes root in Ralph Kramdon’s, “To the moon, Alice;” one of our first TV shows featuring a man constantly threatening to beat his wife; Lucy, a red fox trickster, always with some ‘splainin to do; Ron and Laura Petri’s separate beds.Report

      • Avatar Saul Degraw says:

        @zic

        I don’t think the separate bed things is equal. My grandparents used to sleep in separate beds. I think it used to be a thing once upon a time. I still know couples that like having separate rooms for sleeping and these are not exactly conservative couples.Report

      • Avatar zic says:

        @leeesq you don’t understand, it was considered controversial to suggest they had a bed that they slept in together. To have a young married couple, with a knock-out wife that Mary Tyler Moore was, they could not suggest that Rob and Laura actually slept in the same beds. It’s exactly the kind of tropes I’m talking about. You just don’t talk about sex on TV. Ever. Or you didn’t, back in the day Christianists imagine they want to return to.Report

      • Avatar Mike Schilling says:

        It was a completely idle threat (note that Alice never so much as flinched), made out of frustration, despair, and a bit of self-loathing. Whenever they had an argument, Alice won, because she was much smarter than Ralph was, and they both knew that. He made noises about how he was bigger and stronger only to salvage what little dignity he had. And that’s not a deconstruction or a decades-later reanalysis: it’s all right there on the surface. Ralph Kramden was a man with a crappy job, no prospects, and no realistic chance of ever advancing. He was constantly insulting and getting annoyed with the two people who lived him, Ed and Alice, both of whom were much better friends than he deserved. The amazing thing is that Jackie Gleason still made him lovable.Report

      • Avatar Mike Schilling says:

        Remember the episode with the horror movie starring Danny Thomas as the alien monster? (He had four eyes and no thumbs, and lived on walnuts. Trust, me, it was hilarious.) Rob and Laura both wake up (in their separate beds) at 2AM after horrible nightmares, and both are too scared to go back to sleep. They look at each other and wonder what they can do so late at night. Fortunately, there’s an all-night exercise program on TV, so they stay in their respective beds and do horizontal calisthenics. That had to be the writers having fun with the separate bed nonsense.Report

    • Avatar Michelle says:

      @zic–exactly. The ability to control when you get pregnant and the ability to space out pregnancy are health issues for most women. It’s not as if only single women use birth control. Given modern medicine, plenty of families could be Duggar-sized since most of the diseases that used to routinely kill young kids in the past have either been largely eradicated or made treatable.

      For the right, I think, a lot of their issues with birth control stem from the notion of women being better able to control their reproductive cycles and bodies. These issues go hand-in-hand with their rejection of feminism. Both empower women to have more control over their own lives. Plenty of conservatives would be more than happy to make women second-class citizens again.Report

  4. Avatar LeeEsq says:

    The New York Times had articles on how the Democratic Party is hoping that the Hobby Lobby decision will motivate enough single women to vote in the mid-terms that will allow them to keep the Senate.

    American social conservatives really confuse me. Their European equivalents didn’t like the 1960s much either but more or less accepted the vast social changes and gave up the ghost. Our social conservatives keep wanting to refight the 1960s and return us to their version of the 1950s while ignoring lots of things that they don’t like that made our prosperity in the 1950s possible like the devastation of World War II or the fact that Communism and other things kept hundreds of millions of people out of the market.Report

    • Avatar Tod Kelly says:

      “Their European equivalents didn’t like the 1960s much either but more or less accepted the vast social changes and gave up the ghost.”

      Well, I think that’s the thing — I think the same is true for most conservatives in the US. Look at the people I quoted: Bolling, Limbaugh, Erickson, etc. I just don’t have the sense that these men have a problem with premarital sex, or women using birth control. Not really. I think it has more to do with just latching onto anything vaguely anti-liberal sounding and spouting off about it.

      Dreher is an obvious example of a true believer on these cultural issues, but I really think he’s in the minority.Report

      • Avatar zic says:

        Dreher is an obvious example of a true believer on these cultural issues, but I really think he’s in the minority.

        And Douthat and Kowal.

        Me, I rather like Kyle Cupp’s version best. He is a respectful person, and filled with grace.Report

      • Avatar LeeEsq says:

        Many of the personalities might be cynics of some sort but lots of the rank and file do seem to be true believers even if they don’t quite live that way or not.

        Regardless of whether they are cynical manipulators or true believers, our social conservatives are attempting to reverse the 1960s in away that their European counterparts generally wouldn’t dream about. The various conservative parties in Europe gave up on social conservatism a very long time ago. The European Far Right is still very xenophobic but I don’t think even they want to return to an imagined past in the same way that our social conservatives do.Report

      • Avatar Saul Degraw says:

        There is something to the Long Con and various stars being grifters, etc. That being said, the big stars might be hucksters but there are generally a ton of true believers who do believe in what Lee pointed out above.Report

      • Avatar Stillwater says:

        Tod,

        I think it has more to do with just latching onto anything vaguely anti-liberal sounding and spouting off about it.

        Yup. That’s the right in a nutshell. It’s also that Law I keep mentioning. Contemporary pop-culture conservatism is defined entirely by a simple formula: ~ liberal. That’s some deep, well thought out stuff, no doubt.

        You mentioned in the OP you don’t think the right is capable of moving on to political seriousness. I’d like to say that I take that as evidence of the sacrosanct ascendance of High-Juvenility (trade mark thingy!) in American culture. I mean, cristamighty, grown men are acting like two year olds on this topic.Report

      • Avatar Morat20 says:

        When “cutting taxes” and “less regulation” starts running into roadblocks in terms of electoral popularity, what else do conservatives have to offer?

        Honestly, they still seem to be coasting on Reagan’s legacy.

        I guess Democrats have it easier, in a way. They believe, by and large, that government has a purpose and a goal — so if nothing else, they can always fixate on “doing the job well”.

        Conservatives seemed to peak in the 1980s and have just been….stuck, I guess. I could come up with a lot of wild guesses as to why, everything from still trying to refight the 60s to an inability to come to grips with changing society, but it doesn’t really matter.

        Even the latest wave of “bold young conservatives” with “bold ideas” basically boils down to “upper end tax cuts”, “slashed social programs” with a nice sauce of “Maybe we shouldn’t bash gays so hard, and/or stop saying things like ‘legitimate rape'”.

        Same thing, different package.Report

  5. I hope I never meet Eric Bolling or Erick Erickson in person. I don’t really need to be arrested for punching them repeatedly in the face.Report

  6. Avatar trizzlor says:

    Honestly, this decision hasn’t really covered either side in glory. I’ve been extremely frustrated reading liberal blogs claiming that:

    * The ruling was based solely on theocratic fundamentalism, and not just a strict reading of the RFRA passed overwhelmingly by Democrats and happily signed by Bill Clinton.
    * Any person can now get out of any law if they simply claim their religion forbids it.
    * The ruling was all about *men* preventing *women* from having access to the necessary medical care they need, and would never have been ruled this way if the prescription was – say – ED medication.

    I would be ecstatic if everyone started thinking about these decisions in the “competing rights” framework instead of as “liberty v. tyranny”, and liberals do typically avoid the latter in their rhetoric. But when it comes to decisions that are both partisan and emotional, I don’t see it happening.Report

    • Avatar greginak says:

      I agree in a general sense. However i don’t think meds that men use would get this same sort of treatment. There is a long history regarding repro freedom and also plenty of men, as noted above, really seem to have a thing for women, who they are in a relationship with, using BC. Is that everything about the debate; no, but its part of it.

      There is an argument to be made that the RFRA is unconstitutional since it gives religious people rights that agnostics/atheists don’t’ have. Nobody is really going to care about that though.Report

      • Avatar trizzlor says:

        However i don’t think meds that men use would get this same sort of treatment.

        The thing is, I don’t see anything in the decision that is directly gendered. I guess there is some implicit thinking that lead to the distinction between birth-control and immunization that’s not clearly spelled out, but there are plenty of non-genered explanations for it. The complaint just reads to me like one of those “If Bush did it you’d be against it” arguments which is essentially unfalsifiable.Report

      • Avatar greginak says:

        I can see how since there isn’t a direct analog to BC it is not an open and shut case. Although some people might say ED treatments are pretty close. But its not like there hasn’t been serious fights for BC in the first place, great and loud upset that BC exists, people who think BC has put us on the rocket sled to hell and many attempts to limit BC/repro health in general.

        Taken out of context i think your view is more reasonable even though i don’t agree. In the context of the history and current feelings among some( generally Socons and loud mouth Conservative media types) about BC i think your view holds up less well.Report

      • Avatar zic says:

        There is an argument to be made that the RFRA is unconstitutional since it gives religious people rights that agnostics/atheists don’t’ have. Nobody is really going to care about that though.

        Dirty hippies.Report

      • Avatar Jaybird says:

        I’m 100% down with expanding the RFRA to cover “issues of conscience”. Oh, that’d be downright wonderful.Report

      • That is one of the things often missing from these conversations. I would have issues with a law that said catholic obstetricians can’t be required to perform abortions but my wife has to… I’d find that problematic to say the least. More problematic than requiring it of all ob docs.

        Religion is often a helpful way of conceptualizing the issue, but it’s not a complete one.Report

      • Avatar Mad Rocket Scientist says:

        @greginak

        Nobody is really going to care about that though.

        I care, damn you! I care!Report

      • Avatar greginak says:

        @mad-rocket-scientist fwiw, i care too but i’m a non-believer and i think we know how much that matters. It would be nice if it didn’t though.

        Someone actually filed a friend of the court brief in the HL case arguing this point.Report

      • Avatar Mad Rocket Scientist says:

        @greginak

        I know, I know, if we don’t believe in a higher power setting rules for us, what could we possibly need protection from, since we must be anything goes kind of people.

        Sigh…

        We need a Religious Turing test right alongside a Political Turing test.Report

    • Avatar zic says:

      Uteruses aren’t competing rights, they’re private body parts. You should no more be able to tell me what to do with mine then I am to tell you what to do with your left foot.

      Honestly, how can people not get that?

      These people just won a court case based on disapproving what kinds of medical decisions women make about their own health, particularly the uterine function.

      It’s about the fact that nobody has the right to prevent a woman using legal medical care; and they’ve just one a narrow decision that says this one thing is subject to religion; the corporation owner’s religion.

      People are talking about all these other ‘rights’ that may be behind a flood gate. But women’s right to control her own body is the age-old right denied that the flood gate rests upon. And it’s not just about men, a lot of good believers, ranging from the token to the devout, thing they have a traditional right to tell women what they may and may not do with their own personal egg supplies.

      Like the picture shows, this is an age-old battle. I read somewhere that one of the oldest preserved bodies we’ve found is from a bog somewhere in the UK; a bag or pocket had an herb in it, the only known use is to induce an abortion. The old herbals are full of medicines to being on the menses. The standard of pregnancy was quickening, at about 4 months.Report

      • Avatar Jaybird says:

        Uteruses aren’t competing rights, they’re private body parts. You should no more be able to tell me what to do with mine then I am to tell you what to do with your left foot.

        From over here in my particular corner of crazytown, the argument isn’t that I’m telling you what to do with your uterus as much as you’re telling me what to do with my wallet.

        I don’t care what you do with your uterus. Uter away. If you want to take birth control, take it. If you don’t want to take birth control, don’t. If you don’t want to take birth control, get pregnant, then regret not taking birth control and then want to avail yourself of the “after the fact” plans that they have out there, hey. Knock yourself out.

        It’s when people start saying “we need you to pay for what I’m going to be doing with my uterus” that I say “it’s uter-you, not uter-US.”

        This time, when I say “what you do should be none of my business”, *I* become the bad guy.

        (But, for the record, I’ve come around on the subsidy of birth control thing. I’d rather pay for $X worth of BC than $Y worth of juvie followed by $Z worth of prison. An ounce of prevention, etc. I just wanted to point out that, from here, it’s not about telling you what to do with your uterus at all.)Report

      • Avatar veronica d says:

        I just wish Christian hate was delivered equally on its subjects and not disproportionately on women.Report

      • Avatar zic says:

        @jaybird it’s not just about the uterus; it’s that the use of the uterus puts serious restrictions on women’s access to opportunity. The rock-bottom cheapest solution, the one that’s kindest to your pocket, is letting women have control of their own reproduction, world wide, and let them have access to economic opportunity instead of being saddled with unplanned children and oft-times expensive-to-treat medical complications.

        Remember; we talking a big step here. Before ACA, maternal care was not covered by many insurance plans; not required in many states. So the single most dangerous thing women regularly do — remember, many used to die in childbirth — wasn’t covered even considered part of her basic care. This is central to women’s health and well being, not an addendum.Report

      • Avatar Jaybird says:

        Dude, I’m totally down with the idea of “we’re all in this together and therefore I am responsible for making sure that everybody has a bare minimum of stuff that includes medical care and that includes stuff like all kinds of different birth control methods”.

        I mean, I don’t *ENTIRELY* agree with that but my #1 choice isn’t ever going to happen so might as well run with single-payer, right? And, hey, women have all kinds of medical needs that guys just don’t have and egalitarianism would mean that these needs would be taken care of. Sure. I’m with that.

        (Now, I do think that such a policy will have unintended consequences… but that’s probably a thread for another day.)

        But back to the main topic: If you want to argue that we should go with the long-term cheapest solution, hey! You’re speaking my language and I’m on board. Let’s go!Report

      • Avatar Damon says:

        Totally right Jaybird.

        Your medical choices and consequences are just that. I’m not in favor of restricting any form of healthcare, including drugs and abortions. Frankly, I don’t view it as anyone’s business but the individuals, BUT when you want to dip into my wallet to pay for it, that’s where I draw the line.

        “I’ve come around on the subsidy of birth control thing. I’d rather pay for $X worth of BC than $Y worth of juvie followed by $Z worth of prison” However, I haven’t. Putting aside the issue of police and jails, I’m totally down with letting the chips fall where they may in this case. Again, it’s about my pocket book.Report

      • Avatar James Hanley says:

        It’s about the fact that nobody has the right to prevent a woman using legal medical care;

        I’m probably putting my foot in it, but it seems to me this phrasing elides a distinction between having a right to legal access to something, and having a right to have somebody else be required to provide it.

        This is problematic because nobody here is arguing against the former, only the latter. So using the phrasing only of the former doesn’t address their actual argument.

        And at least for me, while I don’t argue against the importance of birth control to women, I have consistently maintained, for a variety of issues, that one person’s need does not impose a positive duty on others.Report

      • Avatar Mike Schilling says:

        Then you’d be OK with an employer who refuses to cover sickle-cell and Tay-Sachs, because who is he to undo God’s curses?Report

      • Avatar Morat20 says:

        “Having someone else pay for it”.

        Did someone else pay for my foot surgery? Because I thought the money I (and my company) paid towards my insurance company every month covered that. My insurance pays for the two daily drugs I take. They paid for an outpatient foot surgery to deal with a chronic problem (plantar fasciaitis. Seriously, like 95% of cases resolve without surgery. Mine didn’t. Stupid foot).

        This isn’t “having someone else pay for it” — it’s about what’s required for a health insurance to be called ‘health insurance’, an area that state governments have long regulated (indeed, prior to the ACA, some 28ish states required contraceptive coverage and nobody sued over it. Hobby Lobby, IIRC, cheerfully obeyed).

        All the talk about sluts and “8 dollars at target” and “Other people paying for it” is just smokescreen. Because really, what’s the actual reasoning to take birth control OFF the “this is what insurance has to cover, to qualify for the exchange” list?

        I mean, taking religion off the table and just looking at it’s use — virtually all women have or do use it. It’s used both to time pregnancies (or prevent them — and pregnancies are a very costly medical condition), it’s used to treat several hormonal problems — it’s a really, really REALLY common drug prescribed to women for a variety of reasons.

        Many ACE inhibitors, generic, cost less than 8 bucks for a month’s supply. My insurance still covers it.Report

      • Avatar veronica d says:

        @mike-schilling — The problem is that no example can really quite get through to people like @james-hanley , because every example you give will be comparing some group who is not him with some other group who is not him.Report

      • Avatar Mike Schilling says:

        That’s quite unfair to James. When it comes to Hobby Lobby, he’s been sticking up for the rights of the religious, which does not in any way include himself.Report

      • Avatar LWA says:

        Well except the positive right to force me to pay for police protection of property, and courts for contract enforcement.

        But yeah, other than that, no one can force me to pay for anything.

        See, this is an example of what I see as an overly reductionist view of social organization- reducing the complex and contradictory desires of the community down to “just don’t touch my stuff”, or “just don’t make judgements about my sexuality”.

        Whats wrong in those sentences is the word “just” – and whats wrong with it is that it is inadequate. It doesn’t take into account that fact that no one- absolutely no one anywhere- really and truly wants to just be left alone.
        We all, to varying degrees, want inclusion and bonding and tribal belonging and group identity.

        But simultaenously, with equal force, we want autonomy and independence and agency.

        We want our employers to cover our health care- but not make judgements about our health. We want others to pay for our protection- but not stipulate conditions under which they do so. We want freedom, but also justice. We want to create our own individual idea of what constitutes justice, but also enjoy a shared structure which punishes trespassers.

        This isn’t hypocrisy- hypocrisy implies some condition that can be overcome and vanquished.
        This is just human nature, to want conflicting things.

        Ideology, sweeping creeds that posit a simple universal structure lack the ability to satisfy our needs and aspirations, to say that sometimes its perfectly OK to force other people to pay for your stuff, other times its OK to tell people to suck it up and go it alone.Report

      • Avatar zic says:

        @james-hanley says: I don’t argue against the importance of birth control to women, I have consistently maintained, for a variety of issues, that one person’s need does not impose a positive duty on others.

        @lwa says: Ideology, sweeping creeds that posit a simple universal structure lack the ability to satisfy our needs and aspirations, to say that sometimes its perfectly OK to force other people to pay for your stuff, other times its OK to tell people to suck it up and go it alone.

        And zic responds:

        Without access to birth control, women are subjugated. It’s that very same subjugation Kyle wrote about, Aquinas wrote about. I’ve written about. Women, because they have uteruses, are unable to have equal access to opportunity unless they are allowed to control their reproductive lives. Pregnancy and child birth are physically threatening to our health. Children are a huge responsibility. Children and pregnancy often leave women entrapped in horrible and abusive marriages. Children and pregnancy interfere with women’s ability to obtain an education or have a career.

        Given the modern health care system, infant mortality has significantly declined. Used to be, and not too long ago, that many women died giving birth. Used to be children died before they got the chance to grow up in far greater numbers. For many families now, a single child is enough; two or three is average, four or more is rare. Families are welcome to decide upon that number themselves.

        But that means that women have to have the right to control when and how often they get pregnant.

        And that decision is hers. It is the single most central thing to her health, her well being, and her rights to the most basic thing in the world: building a family, the single most central human activity there is.

        This is not about sex. It’s about the well being of half the human population; the right to control the sanctity of your own body and life, and how simple, basic health care in the form of contraception enables women equal access to opportunity.

        Any man, were he a woman, would want that right for himself, too.Report

      • Avatar LWA says:

        @zic
        I agree with your position.
        Although I am advocating for a constantly negotiated, constantly re-evaluated set of boundaries and obligations and rights between citizens and the state, I agree there ARE areas that can be set aside as inviolable- rights that are fundamental, or which require a compelling interest to override, as courts have said.

        I think the sanctity of the human person, the ability to control so intimate a thing as our own reproduction certainly qualifies.Report

      • Avatar nevermoor says:

        These “who will think of my wallet” comments drive me crazy, especially in this context.

        First, the argument here has nothing whatsoever to do with whether you support Obamacare itself (which is where the anti-libertarian redistribution is happening). It’s about whether (a) a corporation can have religious beliefs and (b) those beliefs trump employees’ rights under Obamacare.

        Second, libertarians’ lack of self-awareness when it comes to challenging give-aways for thee but not me is never clearer than when male libertarians harrumph about female-only expenditures. Selfishness does not a sound political philosophy make.

        Third, it’s about the weakest possible response to the point that OF COURSE this brand new “right” is put in place to restrict women’s access to reproductive care, including care that many women can’t afford. Anatole France has some pretty choice words in response to the argument that you support women’s rights to use IUDs as long as they pay themselves.Report

      • Avatar Jaybird says:

        It’s about whether (a) a corporation can have religious beliefs and (b) those beliefs trump employees’ rights under Obamacare.

        They should totally take that to the Supreme Court and hammer those questions out.

        Though, personally, I’d disagree with the framing:
        (a) whether the owners of a corporation’s issues of conscience trump the government’s power to compel such things as coverage of certain types of birth control
        (b) whether the rights of the employees to certain types subsidized health care coverage trump the owners’ issues of conscience

        Now, personally, I think that the RFRA doesn’t come close to going anywhere far enough when it comes to protecting issues of conscience (for example: I believe that even atheists can have them) and if I have a problem with the RFRA it’s that it only applies on the federal level… which, yes, means “Obamacare” rather than state laws.

        All that to say: if you wish to compel behavior, you have to worry about issues of conscience. Which makes sense to me. (Though I’d be willing to explore the whole “issues of conscience should be ignored by the government” if you want.)

        Huh. It seems that the RFRA passed the House unanimously when it passed, and it passed 97-3 in the Senate.Report

      • Avatar nevermoor says:

        @jaybird

        Not clear how you are responding to what I wrote. The issues I identified were taken to the SC, and 55% of the justices got (a) wrong, in my view.

        I also don’t see how your framing makes sense. On the one hand, Hobby Lobby employees (indeed, all Americans) now have the right to BC coverage as part of their insurance. On the other hand, Hobby Lobby presented a religious objection to providing certain BC coverage. So the question is first whether HL has the basis to make that objection (my view: no, because for-profit corporations have no religion) then second which right trumps (which is a harder question if you reach it, in part because of the law you cite, though my bias is in favor of the right to coverage). Your frame seems to assume that the only question is whether jackbooted government thugs have the right to impose rules on those with religious objections.

        You also skip the point I was making, which was a response to several “sure, women can have BC so long as I don’t have to pay any fraction of a penny for it” comments.

        And on your last point re: issues of conscience. I certainly believe people are allowed to have conscientious objections to federal law, and that those objections should be resolved within the framework established by our laws, including the one you (correctly) note was passed easily under Clinton. I do not believe for-profit corporations are allowed to have such objections, and are certainly not allowed to simply adopt the personal beliefs of some (or even all) of their founders/owners. Unless those founders/owners also want to forego all separations between them and their corporations (such as the protection against personal liability), I don’t see why beliefs like this legitimately pass-through. And that’s the part of this ruling that is scary/wrong/going to cause major problems.Report

      • Avatar Jaybird says:

        I do not believe for-profit corporations are allowed to have such objections, and are certainly not allowed to simply adopt the personal beliefs of some (or even all) of their founders/owners.

        And if someone else says “I believe that they are… well, in the case of closely-held corporations, anyway”?

        I mean, if we agree that this is just a matter of opinion at the end of the day, then we can just smile and nod at each other.Report

      • Avatar nevermoor says:

        @jaybird

        It’s a point upon which people can differ (the SC just did), though I would note that “closely-held” does very little work as a limitation because nearly all corporations are.

        It also has nothing to do with the arguments I was responding to.Report

      • Avatar Mike Schilling says:

        The more obvious it becomes that “issues of conscience” means “Getting pregnant serves those sluts right!” the more it will become the same dead letter as States’ Rights (AKA “Segregation now! Segregation tomorrow! Segregation forever!”)Report

      • And at least for me, while I don’t argue against the importance of birth control to women, I have consistently maintained, for a variety of issues, that one person’s need does not impose a positive duty on others.

        Doesn’t this kind of annul the entire concept of insurance where you pool risk together to cover certain things? I mean why is birth control any different than say, eating meat when you have a family history of hypertension, or covering erectile dysfunction drugs, or for that matter psychiatric care? What makes birth control substantially different enough that an employer should be allowed to deny it to their employee as part of their insurance scheme?

        What about smoking? Being gay? Family history of cancer? Why are these any different or worthy of protection from employer discrimination than being female?Report

      • Avatar Jaybird says:

        The more obvious it becomes that “issues of conscience” means “Getting pregnant serves those sluts right!”

        I was under the impression that they were opposed to abortifacients and were more than happy enough to cover other kinds of birth control.

        If it’s true that they are opposed to birth control, period, I totally think that there should be some serious efforts at repeal of the RFRA in the House and/or Senate. Or, perhaps, an amendment to Obamacare that explicitly says that Obamacare isn’t covered by the RFRA.Report

      • Avatar nevermoor says:

        @jaybird

        “abortifacients” is a fancy word to tar a whole lot of things with its root word. For example, the inclusion of IUDs under that term is nutty, because they work by preventing fertilization/killing sperm. That isn’t to say that one can’t have a moral objection to IUDs (a person can have moral objections to just about anything), but one can’t have a moral objection to IUDs and describe that objection as merely being concerned about abortion.

        Also, it’s naive to presume that just because the SC ruling was on a narrow issue, the reasoning won’t control applications to companies with broader objections. For example, law students don’t study Pierson v. Post because of fox hunting’s central role in the US economy.Report

      • Avatar Jaybird says:

        It also has nothing to do with the arguments I was responding to.

        Well, it feels like the arguments you were responding to were being responded to with variants of “this is a matter of opinion and here’s mine” and, well, I have no real beef with any opinion that’s stated as an opinion.

        Now if we wanted to argue that this question was really a question of morality and we needed to pass a law to ensure that the proper morality was enshrined in law, well… that’d be a much more interesting argument, I think. As it is, the attitude that reasonable people can disagree on matters of opinion is an awesome one that, sadly, never really generates a whole lot of counter-argument.

        In any case, I think that the RFRA is a lot more popular, even yet, than the PPACA and that indicates a great deal of the underlying obstacle when it comes to resolving the issues created by the RFRA and PPACA colliding the way they did.Report

      • Avatar Jaybird says:

        That isn’t to say that one can’t have a moral objection to IUDs (a person can have moral objections to just about anything), but one can’t have a moral objection to IUDs and describe that objection as merely being concerned about abortion.

        Fair enough… but here’s from your link itself: Both types of IUD prevent fertilization of the egg by damaging or killing sperm. The IUD also affects the uterine lining (where a fertilized egg would implant and grow).

        If I’m reading that correctly, it says that the IUD also works by preventing a fertilized egg from implantation.

        Now I’m not one of those “life begins at fertilization” people. If forced to pick a “life begins at” point, I suspect that I’d pick “when brain activity begins” (if only because “brain activity ending” is a pretty common definition of “death”) but that doesn’t keep me from being one of those “abortion should be legal” folks up through and including the third trimester.

        So now that we’ve got my opinion on what the medical definitions out of the way (yay opinions!), I’m stuck saying whether the opinions of people who believe that life begins at fertilization should be dismissed out of hand. I mean, what do they mean by “life begins”? “Ensoulment”? I don’t believe in the soul so that’s kind of a silly term. If they just are using a boring biological term for “alive”, they’re technically correct (the best kind of correct?) that a fertilized egg is alive but there are a lot of things implied by fertilized eggs being “alive” in the way that they’re using the term which would cause all kinds of atrocities to occur every month and, from here, that seems unnecessary. (And a waste of good souls.)

        But it also strikes me as one hell of a minefield to think that we should be able to tell people with issues of conscience that they should get prepared to take their issues of conscience and shove them. I mean, it might result in people like us being told such a thing.Report

      • Avatar Mad Rocket Scientist says:

        As I said before, stop thinking about employer provided health insurance as a benefit or an entitlement, it’s compensation. No one is asking anyone to provide anything, they are just asking others to stop telling them how to spend their pay.Report

      • Avatar Jaybird says:

        Part of my obstacle to achieving that is that both my employer and my government sees it as a benefit. I suspect that the majority of employers out there see it the same way.

        Now, I’m not saying that that’s insurmountable, but that’s effort I could be putting into yelling about Wickard.Report

      • Avatar James Hanley says:

        @zic, your response still talks about access, not about having someone else be required to provide that access. There’s nothing in your comment I disagree with. I just don’t see how that gets you to imposing duties on others.

        @mike-schilling, yes, my position would be the same. Keep in mind I’m not arguing against provision of all these things through employer provided health care (at least not beyond our general agreement that employer provided health care isn’t the best way to go). And I don’t like Hobby Lobby’s position. You’re right I’m sticking up for the rights of the religious, even though I’m not religious myself. I stick up for the rights of heroin users, too, although I’m not one myself.

        @veronica-d, just when we were getting along again, you make another substance free personal attack. Fortunately, I’m just as much of an asshole as you, so it’s all good. I’m sure we’ll be getting along famously again in no time.

        @LWA, so you think the government providing a general service for the whole public is just like government telling one group they must provide a benefit for another group? If you believe that, it’s no surprise to me.Report

      • Avatar veronica d says:

        Thing is, if it suddenly became not an “employer provided benefit,” I would like lose my access to trans related health care that I just weeks ago gained.

        So I guess I should hurry and get those surgeries.Report

      • Avatar veronica d says:

        @james-hanley — I just grow weary of men happy to throw women under the bus. Again. And again. And again. And a thousand more time.

        I just look forward to the day men will uniformly say, “Nope, wait, that screws over women. Let’s find a different way.”

        Like, and then actually deliver.Report

      • Avatar Saul Degraw says:

        @veronica-d

        I disagree with @james-hanley and @jaybird on this but I think it is a bit much to see their position as being part of a secret plot to oppress women. Their stance is perfectly consistent with libertarian politics and I suspect you would find both of them at the barricades fighting to keep birth control legal if anyone tried to outlaw it.

        Now I disagree with them because I think the whole wallet argument that many libertarians like to make is perplexing but I am a bleeding heart liberal-collectivist who thinks that money in their damn wallets and the wallets of the Hobby Lobby owners wouldn’t exist without the government and laws and the backing guarantee of an orderly society. I have no problem with making Hobby Lobby pay because I agree with Tod’s view on what tyranny and liberty debates really mean in a pluralistic democracy and I have no problem telling Hobby Lobby to pay up.

        So criticize them for being libertarian and wrong on that front but they are not secret agents of oppression. Just because a counter view exists does not make those whole hold the counterview to be fascist oppressors.Report

      • Avatar Veronica Dire says:

        @saul-degraw — What I see them doing is just what I said, throwing women under the bus. Which to me resembles watching a person drown and pointing out, “Well, hey, I didn’t want them to drown, but I didn’t throw them in the river.”Report

      • Avatar Mike Schilling says:

        The IUD also affects the uterine lining (where a fertilized egg would implant and grow).

        There seems to be a word missing there, since it goes on to describe how one type of IUD affects the uterine lining but doesn’t say that about the other. I’m guessing it should say “The hormonal IUD also affects …”. But since that one also makes it difficult if not impossible for sperm to reach the uterus at all, the assumption that it has ever prevented a zygote from implanting is a matter of faith, like the Trinity.Report

      • Avatar Stillwater says:

        VD,

        It’s like men have constructed this grand edifice of privilege and when things turn against them, they bitch about how certain “principles” – ones which chip away at or expose that privilege – need to be upheld. I mean, I’d a dude and all, but I see this shit clear as day. I don’t understand why the topic is even debated by so called “thinking” people. It’s all too often just a debate about sustaining privilege as the tide continues to turn.Report

      • Avatar Saul Degraw says:

        @stillwater

        “Reasonable people can disagree” is a necessary and valuable concept for the survival of any democracy.

        Democracy is a fragile fragile thing and I admit that I have a serious problem with arguments that accuse people of always being in bad faith and secret oppressors. This is no way to conduct a debate or try and change minds. It is a great way to seem unreasonable and conduct a kangaroo court.

        I am sure that there are going to be people who think I am a secret libertarian rightist for saying that I think James and Jaybird are sincere in their beliefs and not sexist even though I disagree with them. Such a belief is not enlightenment but merely enforcing a party line and saying who gets to be on team blue and who doesn’t.Report

      • @james-hanley I would be more sympathetic about the not removing access argument if it weren’t for things like this one. Note what it’s saying:

        College officials refused even to sign a government form noting their religious objection, saying that to do so would allow the school’s insurance carrier to provide the coverage on its own.

        Despite the very fact that the Supreme Court’s original decision SUPPOSEDLY maintained access and provided for an alternative means of gaining it, now they’re saying that employers can even prevent employees from going to the insurance company to get supplementary coverage to gain access to contraceptive care.

        I don’t see how this is defensible on any grounds.Report

      • Avatar Stillwater says:

        Saul,

        Thanks for the admonition. I’ll take it under consideration, along with your other views. And I don’t think for a second that anyone on this thread isn’t being entirely sincere in what they say. Least of all me.Report

      • Avatar Jaybird says:

        If we want to argue that the government should provide this sort of thing then I think that there are supreme court cases that say “your issues of conscience don’t give you the privilege of not paying taxes, you” (Pretty sure it’s Adams v. Commissioner).

        Now the argument that turns this from “Jaybird doesn’t think that Hobby Lobby should be forced to do this” into “THEREFORE JAYBIRD THINKS THAT NOBODY SHOULD BE ALLOWED TO DO THIS!” is one that I tend to associate with the whole statist mindset that says that anything that is not forbidden is compulsory (and vice-versa). I assure you, it is not my view that anybody should be forbidden (or compulsed) to do anything.

        I more see it as none of my business.

        In that vein, please understand that if your employer is giving you awesome benefits, then I think that’s awesome. It’s good that employers are remembering that awesome benefits will help them not only retain the best of the best but steal the best of the best from other companies. I hope more companies follow that particular lead.

        I just get all weird when it comes to the idea of forcing the owners of closely-held companies to do so in violation of their issues of conscience.Report

      • Avatar Veronica Dire says:

        @saul-degraw — Again, I am not accusing @james-hanley of being a religious bigot. I am aware that he is non-religious, non-sexist (as far as it goes), and a libertarian. Likewise, I am somewhat familiar with what (most) libertarian type folks believe. I just disagree with their beliefs. Furthermore, I think their ideology is unworkable and its damage falls disproportionately on those who can least bear it. Which is no surprise, as women and minorities have long been the targets of deeply held social prejudice. An ideology of “let people play their power games, as long as it does not look like government” will lead to continued oppression.Report

      • @jaybird
        So do you think families who think of their pets as their “children” should be allowed to count their pets as part of the child tax credit? If they sincerely believe that their pets are they children, why shouldn’t they be allowed to get tax benefits for taking care of them? I mean that’s pretty much the analogous thing here. HL and other employers are demanding that their beliefs be allowed to supercede the normal definition of health insurance.

        The argument from HL relies on the fact that they’re stating that NOT PROVIDING INSURANCE isn’t a choice for them because it makes them less competitive. Now this claim is dubious and neither the courts nor the government decided to contest that claim because the argument was narrowed into whether or not the belief puts them under RFRA coverage. They could, theoretically, not offer health insurance coverage and let their employees be eligible for subsidies on the exchanges, but they choose not to because it hurts them financially to do so. Basically they’re asking their employees to subsidize the costs of their religious beliefs.Report

      • Avatar zic says:

        @james-hanley

        your response still talks about access, not about having someone else be required to provide that access. There’s nothing in your comment I disagree with. I just don’t see how that gets you to imposing duties on others.

        1. the goal is is that health care be provided via risk pooling, insurance;
        2. ACA says requires basic preventive services be covered at no charge — that’s services that prevent more expensive health care problems;
        3. The most basic of services — contraception — that women need to have access to opportunity has not been covered, and there is huge amounts of data indicating the economic toll of that lack of coverage;
        4. Health records and are private — yours, your medical-care provider, and the insurer; under HIPPA;
        5. Health insurance is the transaction system we use to pay for insurance;
        6. A woman’s reproductive choices are medical choices, and private;
        7. The four contraceptives in question prevent pregnancy, they do not cause abortions;
        8. The most basic libertarian principle here — right to agency over your own body — includes the right to make a decision about your reproduction and the health of your reproductive organs in private.

        I’ve made the analogy in the past; this reminds me of civil unions and, perhaps, segregated schools; the same only different is not the same, it’s creating two classes of citizens. Invoking a different insurance system for these women already makes the different, some weird sub class.

        But most important of all is to remember the weight of history. I take a very firm stand on women’s right to their bodily integrity; and would resist any structuring of ‘same only different’ here because it’s just the kind of thing that snags on that weight, where for thousands of years, women were subjugated by reproduction, and could not become writers or software engineers or doctors, could not get an education, could not participate in our communal decision making.

        If we are going to pay for health care via insurance, then we should pay for women’s health care, and leave the moral decisions about that health care to the woman and her chosen advisors. I have no problem with HL telling their employees, “We believe this is sin, it causes abortion.” But I’d also want it made clear (her doctor can do this) that medically and scientifically, that’s not how it works.

        You think that as long as it’s legal, that’s all that matters. I’m here to tell you that’s just not going to work. It opens the door for the stuff we’re seeing now, everyone trying to figure out how big the crack is in telling women what they can and cannot do with their reproductive organs.

        I’m reminded of the Catcalling thread; the thought that it’s okay to make a woman’s moral decisions is very akin to the notion that it’s ok to whistle at a pretty girl walking down the street; it’s acceptable because she’s not quite fully human; she’s a she.Report

      • Avatar Jaybird says:

        Leave Cecilia, Angel, Tiger, and Momo out of this.

        Anyway, it doesn’t matter whether I think of them as my children for tax purposes because the federal government would argue that the RFRA doesn’t prevent the government from not counting them as my children for tax purposes no matter how strongly my belief is that Cecilia requires all three verses of “Where Is Love?” (from Oliver!) while she eats her fishy fishies on Tuesdays.

        Anyway, the better analogy would be “should everybody’s employer be required to provide pet insurance?” and, personally, I do *NOT* think that everybody’s employer ought to be required to provide pet insurance.

        If my employer provided pet insurance, would I take it? Well, I’d have to run the numbers and discuss the numbers with Maribou but if the numbers were good, hell yeah, I’d take it.

        And if the federal government offered a tax break (or tax credit!) for having kitties who require showtunes, I would jump at taking them. Hey, I could argue!, these precious little bibbies lower the blood pressure of whomever they boop with their chocolate drop noses and, hey, that’s, like, health care right there. But mostly it’d be because I wanted the tax break (or tax credit).

        I do think that you (and everyone out there) ought to adopt a pet because I think it’d be good for you (and everyone out there) and for the pet.

        But I don’t think you should be required to have one and I don’t think employers should be required to pay to cover the insurance of pets and I don’t think that it’d be wise for the federal government to allow me to start claiming these little monkeybutts as dependents.Report

      • So if your religion fundamentally says that all souls are equal and therefore creatures like pets are also the same as biological children, should that fall under the RFRA? What about if your employer said they’d provide pet insurance (and got a tax benefit from it) but said it wouldn’t cover cats because it offends their religion? Would you still accept that “benefit” when you know the fact that you’re getting that coverage (which doesn’t do you much good) is still taken as part of your compensation package?

        I would assume that, in point of fact you’d want to remove the employer mandate all together and remove health insurance from a list of tax exempt benefits being provided, in which case that’s fine, but that’s a different argument from the one being provided.

        Your framing is awfully convenient to make straw figures, but it doesn’t actually address the substance of the issues being talked about with regard to contraceptive coverage requirements.Report

      • Avatar James Hanley says:

        @nob-akimoto
        I’m still chewing on the Wheaton College issue, trying to think it through beyond the headlines to try to understand it better. But keep in mind it’s just a temporary stay. And as much as it raises eyebrows, sure, seasoned legal observers generally avoid reading too much into a temporary stay.

        @veronica-d I don’t really care if you disagree with libertatianism. No problem at all. But if you want to start treating me like a simple stereotype, you might want to consider how you’d feel if I started doing that to you.Report

      • Avatar James Hanley says:

        @zic,
        So now you’re telling me my motivations, and it turns out I don’t see women as human?

        Well, there’s not much to say in response to that, is there?Report

      • Avatar greginak says:

        @james-hanley I’ve been really puzzled about the Wheaton thing since i read about it yesterday. It is of course only a temp stay. But the heated dissent by Sotomayor didn’t come out of no where; she certainly didn’t go to the effort for nothing. Two things seems weird; one that in the same week as praising an accommodation they grant a stay from it. That doesn’t’ really seem to make sense if we are to take Alito at what he wrote. Who knows where this will go. I also have to admit i find Wheaton argument wildly thin bordering on ridiculous. Maybe there a legal frame to it that makes it read better, but “we are offended by filling out a form which gives us what we want” seems rich.Report

      • Avatar James Hanley says:

        @nob-akimoto
        why is birth control any different than say, eating meat when you have a family history of hypertension, or covering erectile dysfunction drugs, or for that matter psychiatric care? What makes birth control substantially different enough that an employer should be allowed to deny it to their employee as part of their insurance scheme?

        Nob, I’m mystified as to why on earth you’re operating on the assumption that I think employers should be required to cover hypertension or erectile dysfunction drugs. Seriously, can you picture me–me!–arguing that employers should be required to cover happy penis pills? Does that picture match anything you know about me?Report

      • Avatar James Hanley says:

        @greginak
        I fully agree with you, especially about the dissent not coming out of nowhere. That’s all part of the reason I need to chew on it some more.

        It’s possible we’re just experiencing the consequences of having such disproportionate representation of Catholicism on the Court. Perhaps 60 years from now legal historians will be talking about what an odd time in our Court’s history this was.Report

      • @greginak and @nob-akimoto If I am understanding Scotusblog correctly, even the odd stay doesn’t actually seem to be able to b prevent Obama’s accommodation from going into effect, if Obama so chooses. It seems to just state that the letter explaining the objection may be deemed sufficient and the government can take it from there.Report

      • Avatar James Hanley says:

        I would add that it seems as though Wheaton is actually trying to do what HL is accused of doing, actually trying to prevent their employees from getting access to birth control. And as much as I’m apparently a monster who throws women under the bus because I don’t think they’re human, I’m pretty dubious about that.*

        ______________
        *Although as a private religious college, I think that as a matter of law Wheaton is anle to make demands on its employees that would normally be beyond an employer’s power. I went to a similar school, and employees, as well as students, pledged to abide by a lifestyle statement forbidding all tobacco products, alcoholic beverages, dancing, and screwing without benefit of marriage. And my theater prof was fired for divorcing his wife (if she’d divorced him it would have been ok). So let’s assume Wheaton has a no birth control–or at least a no abortificants–rule (and assume, for argument’s sake, that we’re talking about some drugs that are for sure abortificants). Can they then refuse to conform to a rule that would allow their employees to access those drugs via a government service? Or is it just up to them to enforce it among their employees if they really care to? I’m inclined toward the latter, although I can’t put together a clear legal argument at the moment.Report

      • Avatar greginak says:

        @will-truman Yeah the accommodation will move forward. The Gov is being polite by taking the objection as good enough for now. It doesn’t really make the WC argument any better or the majorities thinking clear. I wonder how often there are dissents to unsigned stays like in this case?Report

      • Avatar Jaybird says:

        So if your religion fundamentally says that all souls are equal and therefore creatures like pets are also the same as biological children, should that fall under the RFRA?

        We’ve already hammered out whether that should have an effect upon taxes (seriously, I think it’s Adams v. Commissioner. One of those wacky Quakers who said “my taxes shouldn’t go for killing brown people! Look at the RFRA!” and the SCOTUS told this silly, silly Quaker “nice try”).

        In any case, my religion does *NOT* say that my pets are my children. My issues of conscience don’t go so far as to say that they’re my children. They’re companions, of a sort. Some of them require me to do little songs (there are a couple of songs that I sometimes wish we could capture for youtube because Cecilia licks my nose at the end of the song) but, honestly, no. They’re not my kids.

        The people out there who say “the federal gummint should recognize my cats as my kids” are people who, I suppose, have my sympathy… but, honestly, I think that they’re harmlessly nutzo.

        But there’s an adjective there, and let me make it perfectly clear: HARMLESSLY.

        What about if your employer said they’d provide pet insurance (and got a tax benefit from it) but said it wouldn’t cover cats because it offends their religion? Would you still accept that “benefit” when you know the fact that you’re getting that coverage (which doesn’t do you much good) is still taken as part of your compensation package?

        If my employer offered dog insurance, I’d probably resent that they did so *BUT* (AND HERE IS THE POINT), my cats and I hang out together for reasons that have diddly squat to do with tax purposes. The burden my cats provide is not insubstantial, but it’s more than made up for by silly things such as when they give me headbutts.

        If you want to know if I’d take free money if someone offered it to me, I’ll tell you “sure!”

        If you want to know if I’d use the levers of gummint to force my employer to give me free money for my cats if I found out that he was giving free money to dog people?

        You know what? I’m pretty sure that I wouldn’t.

        But, again: my relationship to my kittiebabies is prior to my employment.

        Your framing is awfully convenient to make straw figures, but it doesn’t actually address the substance of the issues being talked about with regard to contraceptive coverage requirements.

        My ideas about such things as contraceptive coverage requirements involve a clinic in every neighborhood where anyone who walks in can get a free shot of depo and be given a refrigerator magnet telling them to come back in 3 months.

        But, sadly, we’re not talking about my ideas about what I want, but about the Supreme Court decision talking about how the RFRA collides with the PPACA.

        If I look at the numbers for how the RFRA passed and how the PPACA passed, I can see how the RFRA should be prior. If I look at such things as how many issues of conscience a company owner should be expected to give up when he hires his first employee, I can see how the RFRA could be interpreted as being prior to the PPACA.

        Now if I could work the law to my benefit, would I do so? HELL YES.

        I don’t see how my selfishness in such a hypothetical should lead us to a conclusion that, therefore, we should make laws that way, though. If anything, it leads me to the conclusion that we should make sure that, say, children are protected but, say, crazy cat people can’t argue that their cats are their own versions of “children”.Report

      • Greg, I don’t quite understand the Court’s reasoning here, either, but (a) it’s only a stay, (b) it won’t prevent women from getting their contraception coverage, it does not seem to consequentially undermine the HL ruling, and (d) whatever the reasoning they got Breyer on board with it despite his disagreement with the original ruling.Report

      • Avatar zic says:

        @james-hanley

        Be kind, please. I didn’t attribute that to you; but that is what happens to women.

        Libertarianism often clashes with notions of fairness. To me, it’s fair to point out that the pull of the past on issues around women’s reproduction can be overwhelming; it shapes the way people think in terms of mores developed before safe birth control. So that right to bodily integrity is a new thing; it needs clear articulating and repeating to replace the old rules constraining how women should behave.

        I think libertarians often forget that pull of the past, and think everybody’s starting from the same place now and moving forward, without much consideration for the differentials in access to things previously reserved for people privileged in some way.Report

      • Nob, I’m mystified as to why on earth you’re operating on the assumption that I think employers should be required to cover hypertension or erectile dysfunction drugs. Seriously, can you picture me–me!–arguing that employers should be required to cover happy penis pills? Does that picture match anything you know about me?

        @james-hanley

        I think you’re misreading what I’m saying in terms of what I see as a weird position on health insurance. Should employers be given access to your confidential medical records so that they can do ala carte selection of things they’ll cover for your insurance? Does allowing that sort of selective coverage actually retain the point of health insurance or does it basically turn it into something that doesn’t actually cover anything of use.Report

      • Avatar James Hanley says:

        @nob-akimoto
        Should employers be given access to your confidential medical records so that they can do ala carte selection of things they’ll cover for your insurance?

        You’re moving the goalposts now. I haven’t been talking about that. I’ve just said employers shouldn’t be required to provide any particular thing, like erectile dysfunction pills (your example). I didn’t say anything about an employer looking into my medical records to see if I have erectile dysfunction and denying it to me on an individual basis; just that an employer should not be told by law that they must cover erectile dysfunction medicine. I’m even more puzzled now, if you actually thought I was arguing for companies looking at our medical records. That one came out of nowhere that I can see.

        @zic
        “Mean?” You made the connection. I won’t argue any further, as our conversation is clearly unfruitful.Report

      • @james-hanley
        I’ll repeat my initial question then:
        “Doesn’t this kind of annul the entire concept of insurance where you pool risk together to cover certain things? I mean why is birth control any different than say, eating meat when you have a family history of hypertension, or covering erectile dysfunction drugs, or for that matter psychiatric care? What makes birth control substantially different enough that an employer should be allowed to deny it to their employee as part of their insurance scheme?”

        So really, what’s different about birth control that it shouldn’t be required coverage to count as health insurance while the other things are A-OK? Would you be okay with employers selectively cutting and pasting of these things as they see fit but still calling what they’re offering health insurance and taking the employer tax credit for it?

        If your position is that “the employer should be able to claim whatever they want as health insurance for tax purposes” then that’s consistent.Report

      • Avatar Veronica Dire says:

        @james-hanley — I’m not saying how you feel; I’m telling you the result of what you support. It is a long fight for women, and a huge step back, and you are (in this case) supporting those who oppress women. You are. That is simply a basic fact. And you are a man doing this. Nothing can remove that context.

        On calling ED treatment “happy penis pill” — really? ED is a real medical condition that affects actual men. Nice job trivializing them.Report

      • Avatar James Hanley says:

        Nob, I already answered that question. To repeat myself, I don’t see any difference between them–I don’t think any of them should be required coverage by law. Period. That has nothing to do with employers get to go snooping in your healthcare records. It just means that an employer can say, “I don’t want to provide coverage for hypertension, period.”

        (Assuming they can find an insurer to write such a claim, and assuming their employees don’t force their hand to provide it after all. I’m only talking about what the law should and should not require, not about what employers, employees, or insurance firms should or should not do.)Report

      • Avatar DavidTC says:

        I think a lot of people are unfairly maligning @james-hanley . From what I can tell, he thinks it’s an unacceptable imposition on businesses to have to provide *any* health insurance at all, so doesn’t see the big deal with opting out of parts of it.

        This is a perfectly consistent position, and doesn’t really have anything to do with contraceptives at all.

        But I’ve got a question I’d like to ask, you, James: How would you feel if, instead of the RFRA, there was some other law, and it let employers opt out of providing health care to black people, and only black people?

        You’re veering a little into the classic libertarian argument, the ‘I don’t support gay marriage because the government shouldn’t recognize marriages’ solution. The argument, in the end, leads to insanity like ‘I support a new law that says Christians don’t have to pay income tax, because no one should have to pay income tax’.

        Just because libertarians think employers shouldn’t have to provide health insurance as part of compensation, or the government recognize marriages, or people pay income tax…doesn’t mean you guys should leap on board something that lets *some people* opt out of certain parts of it. Especially when ‘some people’ all too often is ‘an already privileged group’ and the people harmed are ‘an already repressed group’.

        A world in which only disadvantaged group of people have their rights infringed is actually *much worse* at getting to freedom than a world where everyone’s rights are infringed equally. *cough*slavery*cough* If libertarians want to convince people that certain things are rights that can’t be infringed, they can’t run around making sure *the rich and powerful* don’t have those rights infringed. That’s completely insane and backwards. They need to make sure the rich and powerful *suffer like everyone else*, then things might actually get fixed.

        Especially when the court *itself* demands the exception only apply against women, in a truly epic display of privilege. Do you think employers should have to pay for insurance that covers blood transfusions? If not, *then you don’t actually support this decision*. Do you think only *religious* employers should be able to opt out of providing certain kinds of compensation? If not, *then you don’t actually support this decision*.Report

      • Avatar James Hanley says:

        Veronica,
        It is … a huge step back, and you are (in this case) supporting those who oppress women. You are. That is simply a basic fact. And you are a man doing this. Nothing can remove that context.

        I’m not advocating for women to be denied access to reproductive services of any kind. I’m not advocating that employers stop providing health insurance for those services. I am advocating–and have–that if we want those services to be guaranteed then we should in fact provide that insurance coverage directly through the government. But because I say this particular small subset of corporations perhaps shouldn’t be forced to provide the coverage, I’m totally throwing women under the bus?

        As to a major step back, this case applied to a very small subset of corporations. The vast majority of corporations are publicly traded, not privately held, and this ruling does not apply to them. The ACA also doesn’t apply to small employers, so there are women working at those jobs who may not have that insurance coverage through their employers, either. A huge step back seems like an overstatement, although I will not pretend it’s not a step back at all.

        I am trying to be cordial in this discussion, but you’re making it hard because you’re not talking to me, you’re yelling at me.

        On calling ED treatment “happy penis pill” — really? ED is a real medical condition that affects actual men. Nice job trivializing them.

        I’m 49 years old. In the next ten to fifteen years, it’s quite possible I may have erectile dysfunction. You’re swatting at nonexistent flies here.Report

  7. Avatar ScarletNumbers says:

    that one guy from The Five

    If you mean the guy who is pictured, that is Greg Gutfeld.Report

  8. Avatar LWA says:

    I am more and more persuaded by Corey Robin’s point seeing a common thread in the recent decisions, that the real point of the conservatives is the preservation of private, more than public, power.

    I don’t really see any straight line connecting any of the most fiercely fought issues on the right, other than the preservation of the power of men over women, employers over employees, big business over small business, and the rich over the rest.

    When The Handmaids’s Tale came out, I laughed it off as a paranoid fantasy- but the words I hear coming from the contemporary right makes it seem prescient.Report

  9. Avatar Slade the Leveller says:

    @tod-kelly

    In fact, I’m beginning to wonder if they aren’t going to take the universally assumed triumphs of November, 2014 and find a way to inexplicably snatch victory from the jaws of defeat yet again.

    I do believe this should be turned around. (not to go all grammar Nazi on you, or anything)

    Fine piece, BTW.Report

  10. Avatar greginak says:

    A bit more follow up. Today the court gave a stay to a religous college who didn’t even want to have to fill out a form saying they wanted an exemption from the contracetptive mandate. The stay allows teh college to not do anything about BC until their case is heard down the road. The thing is in the HL decision Alito praised that compromise, allowing orgs to opt out of paying for BC so that their insurance provider would do it. Now a few days later, the accommodation they said was fine and dandy, they allowing to be held up awaiting further trial. This may have been a narrow ruling but this suggests they are willing to go a lot further.

    I’m getting this from this post from Kevin Drum so if i’m missing something have at it. But it seems like the majority has been disingenuous at the least and intends to go further then the HL ruling.

    http://www.motherjones.com/kevin-drum/2014/07/supreme-court-now-playing-cute-pr-games-hobby-lobby-decisionReport

    • Avatar Saul Degraw says:

      This is quick even by their standards.Report

    • Avatar Morat20 says:

      Yep. Their argument is so precious, too. see, if they fill out the form — then the women can get the contraceptives through the government, so filling out the form is practically the SAME as giving them insurance that covers contraceptives.

      Which of course brings up the real infringement of conscience: Employers aren’t allowed access to employee’s medical records, nor allowed to test them for the presence of birth control — this means companies are FORCED to give money to employees who will then use it to purchase contraception, which is against the belief of the owners.Report

      • Avatar Road Scholar says:

        The way I read this is as an end run around even having the court decide whether something constitutes a substantial burden.

        One of my main objections was and remains the court’s acceptance of the claim by the plaintiffs that the contraceptives in question were abortifacients despite the science to the contrary. Essentially, treating a falsifiable question of fact as a religious belief that must be accepted as stated.

        Now they’ve apparently gone meta and are treating the plaintiffs claim regarding substantial burden similarly.Report

      • Avatar Morat20 says:

        Frankly, I thought a sane court would have just pointed out that insurance is a form of compensation, that employers had no right to dictate what employees spent their cash on, so they had no right to dictate what employees spend their health care on.

        The government had a compelling reason to define what constitutes ‘coverage’ for health insurance plans, and it has already been ruled that such must be provided.

        Thus, the act of taking birth control — regardless of what someone believes — is an individual, private act.Report

      • Avatar Mad Rocket Scientist says:

        @morat20

        I tried to make that point upstream. It seems I got no traction on it. People want to think of employer provided health care as some kind of benevolence, instead of part of the compensation package (that they are allowed to provide tax free, so I’m not sure how anyone gets to play emotional/belief games with what is & is not covered).Report

  11. Avatar Saul Degraw says:

    The tweet from the military guy is an absolute disgrace.Report

  12. Avatar paradoctor says:

    In Praise of Contraception:
    .
    Enfettered by the seed of men?
    This wheel, darling, guards for thee
    Affection, passion, love and yen;
    A month of women’s liberty!Report

  13. Avatar Damon says:

    “What’s going to happen — and mark my words, this is coming –when some company owners inevitably declare that because of their religious beliefs they refuse to pay premiums to cover employees who may need ongoing treatments for HIV, AIDS, or hepatitis, which unlike birth control pills are things even most middle-class people cannot afford out-of-pocket?”

    Yep, and it’s a perfectly logical extension to that line of though. But don’t worry, the Court will find some convoluted method to deny it.

    “In a pluralistic democracy, there are no real fights between freedom vs. tyranny; there are only fights between one person’s freedoms vs. another person’s freedoms.”

    Actually, no, it’s not about one person’s or another’s “freedoms”. It’s the constant struggle for political SPOILS. Your “freedom” to have employer paid birth control comes at the expense of my financial “freedom”. That’s not freedom at all. It’s tyranny on both sides.Report

    • Avatar zic says:

      Your “freedom” to have employer paid birth control comes at the expense of my financial “freedom”. That’s not freedom at all. It’s tyranny on both sides.

      If this is true, @damon , then any and all health care paid for via employer-provided insurance is at someone else’s financial expense. Because contraception is no different then asthma inhalers, insulin, or pace makers — something people for good health and well being.Report

      • Avatar Damon says:

        You are mixing two issues. One is the concept of employer paid health insurance. The other is gov’t provided (or mandated employer) health insurance.

        E mployer paid insurance does not come at someone else’s expense. I can opt into or out of. The gov’t provided or mandated I can’t. Gov’t mandated insurance contains subsidies–subsidies paid by the taxpayer, otherwise it would be unaffordable.

        For the record, I oppose both, but that’s not the topic on hand being discussed.Report

      • Avatar zic says:

        Look, insurance has, traditionally, not covered women’s health care needs; maternity care, birth control, pap smears, all of the lady-parts screening and medical care were left out because they were ‘lady’ specific.

        But insurance has long been regulated, and regulated to provide things like vaccinations, colonoscopies. Insurers voluntarily covered ED.

        So the ‘mandate’ that insurance must cover contraception is long overdue, an end of a practice of discriminating against women and the health care issues central to being a woman.

        As you said, the mandate to purchase insurance and the mandate to cover contraception are two different things.

        But the ‘my pockets’ whining holds no juice. Women have been paying for health insurance (or their employer has, but it’s still part of their compensation) that often didn’t cover their most basic needs. ACA clearly said women’s health and well being needs that had been left out of the insurance system need to be included. So it mandated providing maternity care (you know, when she goes to the hospital to have a baby?), contraception, and screening for gender-specific cancers.

        As to the who’s paying, remember this: contraception is a whole lot cheaper then children. Your ‘my pocket’ problem is penny wise and pound foolish.Report

      • Avatar Damon says:

        @zic
        And none of your points is justification to take money out of my pockets to pay for your birth control. I fail to see why this point is unclear to you.Report

      • Avatar zic says:

        They may not justify it in your view; but it is completely justified by the notion of what health insurance does.Report

    • Avatar Stillwater says:

      Actually, no, it’s not about one person’s or another’s “freedoms”. It’s the constant struggle for political SPOILS.

      I’m not sure I understand this. On the one hand, you’re absolutely right: political disputes are motivated by a desire to get some goodies – like the right to vote, or have control over one’s body, or exercise the right to open carry at Chipotle. Who would disagree with that? On the other, you seem to want to analyze all political disputes – and what constitutes victory in some sense of that word – in terms which do not (and cannot!) include “freedom” or “tyranny”. Which seems question begging at best but obviously descriptively wrong at worst.Report

      • Avatar Damon says:

        @stillwater

        “Freedom” isn’t about voting in a block to get a tax subsidy. “Freedom” isn’t about political pressure applied to get the gov’t to pay for your birth control, or healthcare, or your mortgage tax deduction. ALL politics are about spoils, in one form or another.

        You have, or should have, an unrestricted right to do with your body what you wish, unless that action creates a harm to another. You do not have the right or freedom to make me pay for the consequences of your choices. Tod’s comment was rather clear. He’s of the opinion that politics is about one person’s freedoms versus another. That is not correct, because that very action, by definition, is tyranny.Report

      • Avatar Stillwater says:

        Damon,

        Re-read zic’s comment. She’s making the argument that excluding women’s health care needs from general insurance which happens to cover all men’s needs is a form of harm in itself. Why should women have to pay out of pocket for the basic stuff covered for men?

        YOu may not agree with that argument, but it’s not incoherent or undefensible.Report

      • Avatar Damon says:

        @stillwater

        I understand Zic’s point. That’s not really the point of my objection to Tod’s statement. It’s a larger issue. The majority of people in this country seem to think that “freedom” is the ability to take money from someone else to pay for something they want. That’s not freedom.Report

      • Avatar James Pearce says:

        “The majority of people in this country seem to think that “freedom” is the ability to take money from someone else to pay for something they want. That’s not freedom.”

        No, it’s commerce.Report

      • Avatar Saul Degraw says:

        @damon

        “The majority of people in this country seem to think that “freedom” is the ability to take money from someone else to pay for something they want. That’s not freedom.”

        In pluralistic democracy, the majority often gets a say. Now maybe one day libertarians will be able to convince the majority otherwise but right now they often seem incapable and are reduced to just saying “I’m right, you’re wrong, democracy sucks” like a really unpopular high school student who sneers at everyone for not recognizing his brilliance.

        The majority of people don’t agree with libertarians on the size of government and what government should and should not do. For the most part, I’ve never seen libertarians very good at doing any convincing yet also seemingly unable to be contemplative enough to wonder why the majority feels differently. Certainly they are not humble enough to wonder whether they are wrong on many issues. The general response from libertarians on being in the minority is to develop an unflinching arrogance in a constant sneer.Report

      • Avatar James Hanley says:

        Certainly they are not humble enough to wonder whether they are wrong on many issues.

        Unlike liberals, who on this very page are demonstrating great humility in contemplating whether in fact the Supreme Court might be right after all.Report

      • Avatar Damon says:

        @saul-degraw

        And I don’t really think that libertarians are saying democracy sucks. It’s certainly better than a lot of other systems out there.

        Since you’re convinced that libertarians are wrong and can’t seem to persuade others why they are correct, which I understand, and to a degree, agree with, perhaps you’ll be good enough to tell me why it’s right and just and moral for a group of people, minority or majority, to take my money to spend on something I’m not willing to spend it on myself? And please don’t use the “we” decided it or “that’s the price of society”, because that’s bs.

        Please explain to me why our society calls it theft when an individual puts a gun to my head and takes my wallet, but it’s call “taxes’ and “democracy” when a group of people hire other people to take my money, and if I refuse, they use violence against me? Seems to me the only difference is there is an intermediary. The concept is still the same.Report

      • Avatar zic says:

        Unlike liberals, who on this very page are demonstrating great humility in contemplating whether in fact the Supreme Court might be right after all.

        Well, the Supreme Court certainly demonstrated the habit of thinking it’s right rely on the historical habit of saying it’s okay for other people to make moral decisions about how ladies private medical decisions when it comes to their reproductive organs.Report

      • Avatar Stillwater says:

        Unlike liberals, who on this very page are demonstrating great humility in contemplating whether in fact the Supreme Court might be right after all.

        In what way do you think the court got this right, James? On the substance? On the merits of the arguments provided? Do you think that there was no argument the government could have made to meet the required burdens, or that they simply didn’t do so as a matter of fact? Mark T, for example, indicated that he thinks the court got the decision correct given that government made weak, easily challenged arguments, but I think he also believes that a better argument presented in court would have sufficed to sustain the contraception mandate.

        Maybe I’m wrong about this, but I take it that you think there was no argument the government could have made to defeat protections for religious expression on this issue. So, it’s one thing to say that the court got this right because the gummints argument was inept, but another to attribute that to a correct reading of constitutional principles.Report

      • Avatar James Pearce says:

        @damon

        “perhaps you’ll be good enough to tell me why it’s right and just and moral for a group of people, minority or majority, to take my money to spend on something I’m not willing to spend it on myself?”

        Looking at this specific case and not trying to draw any kind of “first principles” from it, the answer is simple: The employees earn this “money” by performing duties assigned to them by their employer.

        It seems that you are trying to frame this in a way where your point stands, and in so doing, are distorting the basic facts.

        This is not a case of women wanting someone else to pay for their BC. It’s a case of an employer who wants to compensate their employees differently from every other employer in America.

        It can certainly be framed in a “freedom” kind of way, that the employers should be free to compensate their employees how they want according to their own consciences, but thanks to historical abuses that range from owning your “employees” as chattel to paying them in “company scrip,” we have rules on this kind of thing that rely on other factors.

        Not that those rules mean anything, as easy as it is to circumvent them with the help of an overly-credulous court.Report

      • Avatar Stillwater says:

        Damon,

        perhaps you’ll be good enough to tell me why it’s right and just and moral for a group of people, minority or majority, to take my money to spend on something I’m not willing to spend it on myself?

        Pragmatics? Because all other things being equal, the coerced payment for things like cops and courts, access to roads and water and electricity and schools, protections governing the safety of goods and services, etc etc, create a better society than one where those services are available to people based only on their ability to pay?Report

      • Avatar James Hanley says:

        @stillwater

        In what way do you think the court got this right, James?

        How is that relevant to to my response to Saul? A person doesn’t have to actually believe the Supreme Court is right to have the humility to consider it as at least a remote possibility.

        I’m just commenting on the irony that on a page where liberals are expressing rock solid inarguable certainty, someone’s pointing to libertarians as the ones who lack the ability to consider whether they’re wrong. (Not that the critique is wrong, just that it’s not limitable to any one ideological group.)Report

      • Avatar James Hanley says:

        zic,

        Read my reply to Stillwater. You both read something into my argument that wasn’t there.Report

      • Avatar LWA says:

        Again with the “we didn’t decide” business.

        How did “we” decide that your claim to property is valid? How did “we” decide that rights exist, or that you posesss them?

        The argument I am hearing is “This law is illegitimate because democracy is majoritarian. Oh that law over there? Totally legit. And get offa my lawn before I call the cops.”

        If I were to give it a name, its the Anarchy of Convenience, or the Occupy Principle.

        (OK, for the record, James, I am regarding this as Cartoon Libertarianism, something so wacky No True Libertarian would say* or advocate.)

        *out loudReport

      • Avatar zic says:

        @james-hanley

        I’m certain you’ve already read it, but please re-read one of my very first responses to this thread, here: https://ordinary-times.com/blog/2014/07/03/on-the-aftermath-of-hobby-lobby#comment-877317

        Because I honestly believe that what I’m arguing is very libertarian, and it’s just the habit of thinking we have a right to decide about women’s stuff that obscures that; we do not have a habit of considering women’s reproductive issues as part and parcel of basic individual human rights.

        So I don’t think I’m the one stumbling on Libertarian ideology here, I think libertarian philosophy hasn’t yet grown enough to really comprehend that women’s reproductive issues as at the very root of individual liberty to be protected; it keeps reverting to the traditions of the last calendar.Report

      • Avatar zic says:

        Also, please forgive me if my language is muddled; it’s not ire, there’s a storm of the coast of Maine, and it’s causing havoc with my language. Such is my life.Report

      • Avatar Damon says:

        @stillwater
        You really want to go with that?

        “Pragmatics? Because all other things being equal, the coerced payment for things like cops and courts, access to roads and water and electricity and schools, protections governing the safety of goods and services, etc etc, create a better society than one where those services are available to people based only on their ability to pay?”

        ’cause I can use that justification, which boils down to “for the good of all”, to justify all kinds of things. Things that a lot of people would look on at in horror.Report

      • Avatar Saul Degraw says:

        @james-hanley

        FWIW, I wrote on this to all my liberal friends on facebook when the Hobby Lobby decision came out:

        “Okay peeps, I disagree with Hobby Lobby but it is not a reason to call for the abolishment of the Supreme Court unless you also want to chuck Windsor and Heart of Atlanta and Gideon and Roe v Wade. out the window. There is no guarantee that you are you going to agree with every Supreme Court decision. I also feel compelled to point out that RFRA was passed by Congress to reverse a Supreme Court decision on whether Native Americans could smoke peyote for religious reasons and lose their jobs. The Supremes said that it was perfectly acceptable to fire Native Americans and Congress and President Clinton disagreed. They were doing the right thing. The law was wrongfully applied by the Supremes that does not make it a bad law. #lawyerrants”

        I think the idea of when majority rule applies or when it doesn’t to protect a minority is one of the hardest questions in democracy and what makes democracy so fraught. I make no bones that I think the right of minorities to fully participate in economic and civil life trumps anything which might be called a right to discriminate even if for sincerely held reasons. This is why I support the Civil Rights Act of 1964 and EDNA if it ever passes.Report

      • Avatar Mike Schilling says:

        Of course, exactly the same argument could be made about taking money out of my pocket to pay for your Viagra, or insulin, or childbirth, or appendectomy. Yet here it’s being made about birth control, and in fact BC has cause more controversy than all the others out together. Why is that, I wonder?Report

      • Avatar Stillwater says:

        Damon,

        Yeah, I want to go with that.Report

      • Avatar Damon says:

        @james-pearce

        For employees of a company that offers insurance, yes, the money is the employees. I’m not arguing that it isn’t.

        Again, my point goes back to Tod’s claim that the ““In a pluralistic democracy, there are no real fights between freedom vs. tyranny; there are only fights between one person’s freedoms vs. another person’s freedoms.” which is not correct.Report

      • Avatar Damon says:

        @stillwater
        Super, then I can invoke “Godwin’s Law”. And the best part is, it’s totally legit!Report

      • Avatar Stillwater says:

        Damon,

        Have at it. And when you do, you’ll demonstrate how stoopid my views on this stuff really is! I look forward to it!Report

      • Avatar James Pearce says:

        @damon

        “For employees of a company that offers insurance, yes, the money is the employees. I’m not arguing that it isn’t.”

        And yet, earlier in the thread you wrote:

        ““Freedom” isn’t about political pressure applied to get the gov’t to pay for your birth control”

        which would lead a reasonable person to think that you are arguing against the idea that the compensation earned by HL’s employees is actually theirs. Indeed, it seems that your entire premise rests on the idea that this compensation belongs to someone else, namely the employer and/or taxpayer.

        Or am I just not getting your point at all?Report

      • Avatar James Hanley says:

        @zic,

        The problem is, I disagree with two critical assumptions in that argument.

        First, as I said to Nob, I don’t see this case as about medical privacy. HL isn’t arguing that they get to see your medical records, or that they get to prevent you from getting access to contraceptives through any other source.

        Second, for similar reasons I don’t think it’s about women getting to control their own bodies. HL isn’t saying “our employees can’t use contraceptives.” They’re not even saying “our employees cannot get late term abortions.”

        I simply think those are inaccurate descriptions of the case.

        And you’re not making a libertarian argument, because you’re saying “I need X, therefore it’s right for government to require someone else to provide X for me.” That’s a perfectly consistent liberal position, but it’s not a libertarian position. And that’s where the fundamental divide between us is, I imagine.Report

      • Avatar James Hanley says:

        Mike Schilling,

        Viagra, or insulin, or childbirth, or appendectomy.

        Yet here it’s being made about birth control, and in fact BC has cause more controversy than all the others out together. Why is that, I wonder?

        Unless I’m mistaken (and I could be), ACA does not require that Viagra be covered.* I’m also not aware that insulin or childbirth offend religious sensibilities. Appendectomies, perhaps (Christian Scientists, Jehovah’s Witnesses if blood transfusions are necessary for them), but so far nobody has stepped forth and made the claim.

        So, there might actually be reasons beyond wanting to dehumanize women.
        __________________
        *FWIW, Viagara is also prescribed to women, both for sexual arousal purposes (particularly when anti-depressants have dampened their ability to sexually arouse) and for pulmonary hypertension. So the Viagra contrast may not work well.Report

      • Avatar zic says:

        Unless I’m mistaken (and I could be), ACA does not require that Viagra be covered.*

        Nobody needed to ‘require’ it, insurance already covered it as one of those obvious medical needs men have.Report

      • Avatar Stillwater says:

        +1, zic. I mean, the inability to see the distinction you’re making is bordering on the absurd.

        Or, to go with James’ “respect for sincere religious belief” argument, the fact that the relevant religion in this argument is androcentric ought to be apparent to everyone.Report

      • Avatar Damon says:

        @James Pearce

        I think you’re missing a rather fine point. Yes, it’s employee’s pay, but now that the gov’t has come in and inserted itself into the agreement between employee and employer, the gov’t, has essentially “taken” that money from both the employer and the employee via the mandate to provide a specific set of health benefits-this applies ofc, if there was no BC coverage before.Report

      • Avatar Damon says:

        @Mike Schilling
        You’re right it does, and I’d object to all those situations as well!Report

      • Avatar LWA says:

        @damon
        “now that the gov’t has come in and inserted itself into the agreement between employee and employer, ”
        Another timeworn argument, the “privity of contract” business.

        When Pope Leo wrote Rerum Novarum in 1890, justifying the right of workers to strike, one of the arguments used then, as now, was the privity of contract.
        The argument is that there are only 2 parties to a contract, and no one has the right to interfere.

        Except there aren’t. All contracts have 3 parties- the buyer, the seller, and the adjudicating authority. And we most definitely do have the right to interfere.

        We derive that right because we are being asked to provide a service, and we have the right to say no, or at least set terms and conditions that we deem favorable to our interests.Report

      • Avatar Mike Schilling says:

        @damon

        Then you’re discussing a different subject than everyone else here, including I’m pretty sure, James. And the Court, in trying to determine the of power HL’s “religious” objection, is irrelevant to you too, since you’d allow any objection of any kind for any reason (or no reason at all).Report

      • Avatar James Hanley says:

        Mike Schilling,

        You’re not reading me well.Report

      • Avatar Mike Schilling says:

        Apparently I’m not reading you at all. What’s the point of discussing the limits of religious objections if completely frivolous objections are completely valid (as they are in Damon’s view)?Report

      • Avatar James Hanley says:

        Try it again without the absolutist language (“completely”). As I’ve said a couple times in these two “aftermath” pages, I’m one of the very few here who are not being absolutist.

        I’m in general sympathy with Damon to the extent that I don’t think government should require anyone to pay for anyone else’s anything. I’m not in full agreement with him to the extent that I’m sympathetic to public provision of birth control. I don’t really object to the mandate to the extent it applies to publicly traded corporations, but I’m not entirely sold on it in the case of closely held corporations because I’m not entirely sold on the idea that such corporations are truly wholly separate from their owners, but I’m also not entirely sold on the idea that they are not, so as I’ve repeatedly said, I’m ambivalent. I think non-religious conscience is important and worthy of consideration, but I think the eternal damnation aspect of religion and the presence of the free exercise clause give religion a little more strength in making those claims. Rather than arguing the HL decision was superawesomely right, I’ve mostly critiqued what I think are bad arguments eliding distinctions that I think are meaningful, but I’ve explicitly stated that I think an argument that “my values place the right of ensuring access to contraceptives trumps religious objections” to be one that isn’t really refutable, because value preference orderings are subjective, so neither, say, Damon’s nor zics, can be proven right or wrong.

        So any comment that uses phrases like “completely valid” are certainly not reflective of anything I’ve actually said.

        I think everyone’s confusion comes about because this is one of those great team unity issues, and I’m neither wholly with nor wholly against either team, and in the context a lot of people are unable to grasp that, or unable know what to do with it so they (not necessarily intentionally) just latch onto portions that side with one team and treat that as the whole, for the sake of easing the cognitive burden.

        A few people have grasped it. Gabriel did, DavidTC did, probably a few others. But not those who have most energetically engaged me, and now not you.

        It’d be nice to think I’m so misunderstood because I’m deep and profound, but alas I’m sure it’s only because team unity issues blind people to equivocalness.Report

      • Avatar Damon says:

        @lwa

        Who appointed you “adjudicating authority”. Any “authority” not consented to by the other two parties is invalid. Oh, wait, we’ve already established that you don’t consider what other individuals want to be important.Report

      • Avatar LWA says:

        Who appointed me adjudicator?
        Um, you did.

        If you have ever at any time signed a contract, it contained a provision stating that it would be adjudicated in X jurisdiction, under the Laws of the United States.

        What makes your claim to your property valid? If a group of people challenge it, how is the rightful claim discovered? By whom? Under what authority?Report

      • Avatar Mike Schilling says:

        @james-hanley

        Yes. Damon is being quite absolutist, to the point where the details of what is to be paid for and why HL objects aren’t relevant to his position. Anything for any reason is sufficient for Damon. Which is a perfectly consistent and defensible position.

        You are not being absolutist. Which is what I said in the first place, to which you responded that I was misreading you.Report

      • Avatar James Hanley says:

        Mike,
        But I’m partly in agreement with him, so you can’t draw a bright line between us. If someone says I share Damon’s position, that’s not quite right, and if someone says I don’t share Damon’s position, that’s also not quite right.

        If the debate here is “HL and the Supremes are totes right” vs. “HL and the Supremes totes suck balls,” I’m not actually in the debate. I’m just wandering around saying, “hey, maybe it’s less black and white,” and apparently confusing hell out of a lot of people thereby.

        Really, I saw this coming, as I hinted in my very first comment, so I’ve got no one to blame but myself.Report

      • Avatar Damon says:

        @lwa

        No actually, you did. Here’s the relevant convo snips…

        You said: “Except there aren’t. All contracts have 3 parties- the buyer, the seller, and the adjudicating authority. And we most definitely do have the right to interfere.” You clearly are inserting a third party into this scenario. To which I responded: Who appointed you “adjudicating authority”. And then you change your point by responded that “we” is actually the gov’t with “If you have ever at any time signed a contract, it contained a provision stating that it would be adjudicated in X jurisdiction, under the Laws of the United States.”

        Contracts don’t have to have that clause. They COULD have a mutually acceptable arbitrator, or use the laws of Bermuda, or whatever. Second, you make my point that “we” via gov’t sticks it’s nose into places it shouldn’t. That’s my frickin whole point. But no, you, via gov’t have decided to force me to use your rules–rules that I didn’t agree to. Thanks!Report

  14. Avatar Mike Schilling says:

    Employer-paid birth control, is an illegitimate subsidy from gays and lesbians to heterosexuals, and it’s good to see the GOP finally doing something concrete for the former.Report

  15. Avatar James Pearce says:

    That’s two good posts I’ve read from you this morning, Tod. (The other is the Starbucks one.) It’s a nice reminder why I click over.Report

  16. Avatar Gingerbug says:

    I don’t care how many cigarettes you smoke, just don’t expect insurance to cover your chemo. Smoking is not permitted in my religion.

    I don’t care how much steak you want to eat. Just don’t expect insurance to pay for your cholesterol meds. We also don’t eat meat in my religion.

    I don’t care how much you drink… Or sit on your ass or…

    Health insurance is meant to cover medical and prescription expenses or its not. It’s not about “your wallet” . Be careful what carve outs you allow or you will find yourself carved out of coverage.Report

  17. Avatar Kolohe says:

    “What’s going to happen — and mark my words, this is coming –when some company owners inevitably declare that because of their religious beliefs they refuse to pay premiums to cover employees who may need ongoing treatments for HIV, AIDS, or hepatitis, which unlike birth control pills are things even most middle-class people cannot afford out-of-pocket?”

    Partial tangent question – isn’t it already the case that employers can refuse to pay health care premiums for smokers? Or at least charge them different premiums?Report

  18. Avatar nevermoor says:

    Here’s the problem with equating owners’ preferences with their corporation:
    The corporation has an affirmative duty to maximize shareholder value.

    After HL, I fail to see why a minority owner n a closely-held corporation cannot sue to require similar benefit reductions. After all, they’d save the company money in the short term.Report

  19. Avatar nevermoor says:

    I’m going to try again on the wallet thing, and do it down here given the site’s nesting limitations.

    Obamacare already takes money out of taxpayers’ wallets to fund BC. If you don’t like that, fine, but HL isn’t about whether taxpayers generally should pay for medical treatments they disagree with.

    HL is about what happens when owners of a closely-held corporation don’t want to comply because of a religious aversion. The result is that either insurers, taxpayers generally, or HL employees have to eat that cost. Which is to say that unless you own a closely-held corporation and share HL’s beliefs, the opinion may cost you money.

    Not sure why we have to re-litigate the ACA here when the thread is about a Supreme Court case applying the law.Report

    • Avatar Jaybird says:

      What? My principles might result in me spending more money than I would have otherwise?

      That’s really only a problem for people for whom “money” is the most important principle.Report

      • Avatar nevermoor says:

        Wait, it’s a problem that the united states’ expressed preference to provide BC coverage takes money from your wallet but not that HL’s objection does too?

        Explain to me how that follows from some content neutral libertarian principle. I’m flummoxed.Report

      • Avatar Jaybird says:

        Well, we’re jumping back and forth between content neutral libertarian principles and pragmatism and wacky “if I can’t have my first three choices, this is my fourth choice” positions.

        The content neutral libertarian principles would have avoided the whole “marry health insurance to employment” thing in the first place. But, given that our starting point is, apparently, moments before the Hobby Lobby decision was handed down, I’m stuck saying that it’s less of an infringement to pay taxes that then go on to pay for (stuff that infringes my issues of conscience) than to directly pay for (stuff that infringes my issues of conscience).

        This is covered in Adams v. Commissioner. Now we can argue over whether we think that that was decided incorrectly, if you want.

        I don’t *KNOW* that it was… but I could be persuaded that it was and I think that the country might even be better off if it were decided differently. (Hrm. Research seems to indicate that it “only” made it to the 3rd circuit, was decided against Adams, and then was denied cert. I really wish it had made it to the finals.)Report

      • Avatar Stillwater says:

        The content neutral libertarian principles would have avoided the whole “marry health insurance to employment” thing in the first place.

        Really? When? When did these content neutral libertarian principles come into effect? Before employer health care provision, or after? Just curious.Report

      • Avatar Jaybird says:

        Dude, you know that employer-sponsored health insurance didn’t really kick off until FDR capped wages and companies, unable to compete on wages, started competing on stuff like “employer-sponsored health insurance”, right?

        Or are we going to say that FDRs salary caps and the subsequent gaming of them shouldn’t be taken into consideration when we discuss how libertarianism would handle employer-sponsored health insurance?Report

      • Avatar Stillwater says:

        You didn’t answer the question. I’m open to the answer, by the way. If you can show me that libertarian neutral principles came into effect prior to the introduction of employer sponsored health insurance, I’m all ears.

        I really don’t know.

        But until proven otherwise I think you’re full of it.Report

      • Avatar Jaybird says:

        If you can show me that libertarian neutral principles came into effect prior to the introduction of employer sponsored health insurance, I’m all ears.

        So all I need to do is just demonstrate libertarian neutral principles that existed prior to FDR?

        I don’t suppose pointing to stuff like Thomas Jefferson’s writings, the Declaration of Independence, and/or the Bill of Rights (with a happy fun digression into the importance of incorporation) would suffice, would it?

        I mean, libertarianism, as I understand it, is very much a post 9/11 phenomenon, let alone a post New Deal one. But I would say that libertarianism would not have imposed price controls with regards to salary, even during wartime. As such, I’m pretty sure we could have avoided employer sponsored health insurance as a workaround for salary caps in the first place.Report

      • Avatar Stillwater says:

        I was thinking you’d go back to Lao-tze, who I’ve seen cited recently as the first Real Libertarian thinker.

        Also, you’re wrong to think that libertarianism is a post 9/11 phenomenon. It’s been around longer than that Jaybird. You disappoint me. 🙂Report

      • Avatar Jaybird says:

        Libertarianism has spent a lot more time recently arguing against stuff like the TSA, the NSA, targeted assassinations, and starting new wars in interesting places than The Great Society or The New Deal (though perennial favorites like “the war on drugs” and “crony capitalism” sometimes still bubble up).

        I wish that modern libertarianism had the luxury of being pre-occupied by the same levels of government as pissed off our ancestors.Report

      • Avatar Stillwater says:

        I wish that modern libertarianism had the luxury of being pre-occupied by the same levels of government as pissed off our ancestors.

        Ahh, you’re wrong again. Libertarianism devolves from the same luxury, and is exactly as pissed off as our ancestors.Report

  20. @james-hanley Down here! Do you think it is okay for the government to decline to give tax benefits for health insurance if the health insurance is considered insufficient by the government? Or put another way, do you think it’s okay for the government to put a minimum on what qualifies as health insurance to be eligible for the tax benefits?Report

    • Avatar James Hanley says:

      That’s an interesting thought. I’d have to think more about it to be sure, but off the top of my head it seems legitimate, at least within reasonable bounds. But would it result in a company like HL just dropping insurance coverage altogether? Even if legitimate, it might not be pragmatic (although I’m open to arguments on either point.)Report

      • ….isn’t that basically what this case is about?Report

      • Avatar Mad Rocket Scientist says:

        @james-hanley

        Pretty sure HL argued that dropping coverage would cost them a lot more in penalties, which is why they don’t want to.

        But I agree with Will, since I have no hope in hell of divorcing employment from insurance (short of single payer), then employer provided insurance is part of my compensation package. Since my employer pays tax on everything they pay me (a stupid tax in my mind), but insurance gets a pass, then government can decided what is & is not tax free insurance compensation.Report

    • Avatar zic says:

      @will-truman I think there’s a lot of merit in this idea. I agree with James, some companies would just drop it. But that might be a good thing; for it’s obvious that having the third party — the employer — involved in the transactions distorts them.Report

      • Avatar James Hanley says:

        It might be a good thing, assuming the company offsets that by increasing wages enough to offset the cost of buying insurance on the exchanges (even with the subsidies). I’d be totally cool with that, and I suspect you would, too. But if they just dropped coverage and didn’t offset with pay increases, making the women poorer out of pocket–perhaps costing them more than just buying contraceptives out of pocket would have, are either of us happy with that outcome? Unless I’m missing something, it would seem like a Pyrrhic victory, no?Report

    • What I am describing here is actually close to how ACA is working. The only difference is the $2000 additional penalty/tax.Report

      • Avatar zic says:

        This sounds similar to discussions on earlier thread by @stillwater (I think) about this really being about who pays.

        The good thing I see in this suggestion is that it ties a consequence to conscientious objection. In WWI and II, conscientious objectors did some of the dirtiest grunt work imaginable to satisfy their objections to serving in combat; it shifted their burden, it didn’t eliminate it.Report

      • Avatar Stillwater says:

        zic,

        I made arguments earlier that if health insurance is considered part of general compensation, then employees are paying for their own insurance and given that employers have no more right to tell employees what they types of insurance they purchase than they do to tell em how to spend their wages. Is that the argument you’re thinking of?Report

      • Avatar James Hanley says:

        Stillwater,

        I don’t find that argument persuasive. It means there’s no difference between an employer providing guns and ammo as compensation (or heroin, or charitable donations directed to a specific set of charities), and shrugging their shoulders at employees’ use of their cash wages for buying guns and ammo, or heroin, or giving the amount they prefer to the charity they prefer.

        The argument requires an argument about what distinguishes it from those cases so as to make it true when those others aren’t true. Unless you think those others are true, also (that there’s no difference between an employer giving heroin as compensation and the employee using their wages to buy heroin), which I think also requires an argument.Report

      • Avatar zic says:

        @james-hanley

        The HL pension investments in these very same products, is not an expression of religious belief because it’s a 3rd party managing the investments. But it’s a 3rd party (the insurer) managing the health care provided, it’s equally once removed. And both employee pension and health insurance are forms of employee compensation.

        @stillwater yes, that’s what I was trying to recall, thank you.Report

      • Avatar James Hanley says:

        So subtle, Will. You totally caught me out on that. 😉Report

      • Avatar James Hanley says:

        No, zic. The insurance case involves HL affirmatively approving contraceptive coverage. The retirements case does not.

        It looks to me as though you value the outcome where HL provides coverage highly enough that it overrides most other conflicting values (most, I don’t think you’d agree that HL execs should face torture and execution if they don’t cover contraceptives). In that case, these fine distinctions don’t matter. Which is fine–matters of value are subjective and I could disagree with your values order, but I couldn’t say it’s objectively wrong.

        But you’re not doing that. Instead you’re trying to argue that these other distinctions don’t actually exist. And I can see them existing–I recognize that the two things are not in fact the exact same thing.

        The only distinction–possible distinction, I should say–in this case that I’ve seen a plausible argument for why it’s not a real distinction is the closely-held vs. publicly-traded corporation distinction. As I keep saying, I think the whole case turns on that point alone, and it’s one I’m ambivalent on, not persuaded either way.Report

      • Avatar zic says:

        @james-hanley

        I get the distinctions you see. I just vehemently disagree that that particular set of distinctions should have an priority over women’s private medical and family-planning decisions. Those should be imbedded at the root of protected individual rights. I will not back down from that belief a single iota.Report

      • Avatar zic says:

        @james-hanley not to belabor the point too much, but I also believe that it’s critical to protect these rights of women from religious belief, because that is where the lion’s share of discrimination against women originates.

        My preferred view would be to interpret the exercise of religion as a very private set of behaviors; you agree to them, you practice them, and the government does not interfere with or, when it must, does so in the least obtrusive manner.

        So the correct balance of rights, in my view, would be of a woman’s right to decide her sexuality morals in accordance with her religion; not someone else telling her how to behave in accordance with theirs. She has the right to decide if abortion is moral or immoral; she has the right to decide if an IUD would cause an abortion if implanted in her body, she has the right to decide how to space her children. She has the right to abort a pregnancy.

        Women do not have equal access to opportunity of they do not have the ability to control their pregnancies. Before contraception, women had babies, men made the decisions and wrote the laws and history going back to the beginning of written history. Until women has access to contraception in the 1960’s, they were subjugated by their biology.

        Since the 1900’s infant mortality and maternal death declined have dropped dramatically. Remember, though, it’s the same medical advances that decreased both mother and child deaths that gave us contraception. We welcome the first two legs of that stool, nobody wants young women to die giving birth, nobody wants little babies to die, but this stool doesn’t balance out without the third leg: contraception, which allows women to have equal access to opportunity.

        We don’t need as many babies, so women don’t need to experience as many pregnancies; they are preventable via preventive medicine provided by our health care system, including its transaction system. That’s what women use, and it’s ease of use matters. Extra steps beyond signing up for insurance and a doctor increase barriers to access.

        The change in birth and survival rates, the economic benefits making contraception available are obvious. In country after country, we’ve seen things improve when women have better ability to control their reproduction. Birth control creates equal opportunity for women, without it, they can never be equal. It’s a net good. It lifts people out of poverty.

        These are women’s individual moral decisions to make. It is the most basic essential right that of bodily sanctity that women have; without it, they are not equal; and history has shown us that very thing. The stool requires all three legs to support equal opportunity.

        And it seems to me that people just do not understand this at all. Basic human right. Without it, unequal. Obviously unequal through all of history until sometime around 1985.Report

      • Avatar James Hanley says:

        zic,

        Fine, then argue that position. Don’t argue that the distinctions don’t exist, because it’s a) false, and b) as far as I can tell it’s not your actual position. As I said above, even if I disagree with your ordering of moral values, I can’t argue they’re wrong because values are subjective.

        And if I sound irritable, I am, rather, because I didn’t step in to this debate trying to insult anyone, or even to pitch an argument that the HL ruling was obviously correct (since that’s not actually my position), but immediately I was cast as a guy who threw women under the bus and was intellectually aligned with people who think women aren’t fully human. Those weren’t responses that gave any indication that an actual eye-to-eye discussion was going to be forthcoming. Those weren’t responses that were responding to who I really am, the position I’m actually taking, or even what I actually wrote. They were scripted responses, well practice and recited a thousand times, and recited without regard for what lines the other actors are actually uttering.

        As I said, I knew I was stepping into it. I could foresee how it would play out. Were I wiser, I would have just stayed out and let the echo chamber echo.Report

      • Avatar zic says:

        but immediately I was cast as a guy who threw women under the bus and was intellectually aligned with people who think women aren’t fully human. Those weren’t responses that gave any indication that an actual eye-to-eye discussion was going to be forthcoming. Those weren’t responses that were responding to who I really am, the position I’m actually taking, or even what I actually wrote. They were scripted responses, well practice and recited a thousand times, and recited without regard for what lines the other actors are actually uttering.

        The problem here is that, while you obviously believe women are fully human, your position aligns with people whose arguments do not believe that; so in debating you, we often end up also having to refute those other people. I know I strummed the ‘she’s not fully human’ chord in reply to you, but I was not refuting you personally, and I’m sorry if you took it that way in any way. Other people who believe in religious rights for corporate action do believe they have a right to infringe on women’s reproductive rights. I’m not just speaking to you here — this is social media — I’m speaking to anyone who reads, so the ‘them’ here is the abstract reader, not you personally.

        You a totemic father to the second generation of women in my new calendar.Report

  21. Avatar James Hanley says:

    @davidtc

    Down here, David. That thread’s getting way too long to be easy to comment in.

    First, thank you. You read me correctly, and I’m totally fine with people thinking I’m wrong if they just accurately state what I’m wrong about.

    James: ow would you feel if, instead of the RFRA, there was some other law, and it let employers opt out of providing health care to black people, and only black people?

    I’m on record as saying I’m dubious about such requirements because I believe in the right to free association. However I think the arguments against that position are strong, so I don’t “hold” the position that private discrimination is ok so much as “think it’s not 100% wrong.” Contra Plato, I think true principals can conflict, and then we have to figure out how to balance them. As a pragmatic matter, I’m comfortable with the balance that says public corporations can’t racially discriminate, but uncomfortable with a balance that would say purely private organizations can’t discriminate.

    The HL case is trickier, imo, because a) they’re not trying to deny women health care coverage completely, and because–for all the talk that it’s about hatred of women and trying to control their moral decisions–I understand and respect the religious position that it’s about not participating in a moral crime. I don’t agree with that religious position, but I also don’t agree with just dismissing it outright.

    Now if I was working from your position and arguing against me, I’d say, “would you then say it’s ok for the corporation to only deny sickle cell coverage, as that disproportionately affects black people over white people, Asians, etc.?” Which would make me very uncomfortable indeed in trying to answer, but I think I’d stick on the point of religious opposition to something as a moral principle, a very small umbrella, I think, which sickle cell coverage couldn’t plausibly fit under.

    I’m not pretending this isn’t to the disadvantage of women. And I do think that totally sucks ass. And I do wish the HL’s of the world would STFU, drop their superstitions, and just provide the coverage. But as long as they do have that religious belief–and because I do recognize the possibility that I’m wrong about things, and that their eternal salvation or damnation maybe is at stake–I’m unwilling to use law to impose the duty on them.

    But I’m totally fine with public pressure. Just the other day my wife and I needed to buy a frame, for which we’d always gone to the nearby Hobby Lobby. But I asked her if she’d prefer not to shop there now, and she said yes she’d prefer that. So we went elsewhere. I hope lots of people do so. I hope HL loses shitloads of business and has to start closing stores. I’d be amused if they went out of business totally for this.

    You’re veering a little into the classic libertarian argument, the ‘I don’t support gay marriage because the government shouldn’t recognize marriages’ solution.

    I get where you’re coming from there, but I don’t agree. Gay marriage is about government discrimination. And while I understand a lot of people don’t think the distinction between government and private discrimination matters, I do. Government discrimination is official, and applies to all in the despised class. Private discrimination leaves open the possibility that only some people discriminate (as well as supporting free association), and there’s a place where there are people who won’t. I agree that if discrimination is widespread enough the distinction becomes meaningless. I won’t pretend there’s a crystal clear bright line because don’t believe that there ever are bright lines. But I also don’t believe that the existence of very fuzzy and unclear lines implies that no meaningful distinctions can be made (to take an off-topic example for clarity, just because there’s such a thing as country-rock doesn’t mean there isn’t non-rock country and non-country rock).

    Or to put it another way. I don’t think the government can legitimately deny same-sex couples the right to marry, but I do think churches should have the right to refuse to do the ceremony. And I think that’s actually a very mainstream position, which would indicate that most people do see a distinction between public and private discrimination, at least at some level (and of course we can argue about what level the distinction goes up to).

    Just because libertarians think employers shouldn’t have to provide health insurance as part of compensation, or the government recognize marriages, or people pay income tax…doesn’t mean you guys should leap on board something that lets *some people* opt out of certain parts of it.

    For me, it’s totally about the religious belief aspect of it. I think some people are too readily dismissing that, either because they just don’t respect religious belief or because their preference for the outcome that benefits them (a legitimate preference!) is strong enough to lead them to dismissing something they’d normally be a little more accepting of–or to put them in the terms I described myself, their principle saying women should have access to contraceptives without any substantive impediments at all is stronger than their principle of support for religious belief. I get that. I don’t think it’s evil or stupid, either. I’d just like to see it explicitly argued for, instead of skirted and treated as inarguable.

    A world in which only disadvantaged group of people have their rights infringed is actually *much worse* at getting to freedom than a world where everyone’s rights are infringed equally.

    I’m not sure I agree, but that’s an interesting thought, deserving of more considered analysis than I can give to it right now.

    If libertarians want to convince people that certain things are rights that can’t be infringed, they can’t run around making sure *the rich and powerful* don’t have those rights infringed.

    Well, but that’s not really what we’re about. I mean, we’re not primarily concerned about SWAT teams not busting down the Koch brothers’ doors and shooting their dogs and kids and grandparents to serve a drug warrant for a suspected marijuana dealer. Just because our interests sometimes coincide with those of the rich and powerful does not mean that our interests are primarily about the interests of the rich and powerful. Really, that comes down to cherry picking some issues on which we stand and ignoring others.

    Especially when the court *itself* demands the exception only apply against women, in a truly epic display of privilege.

    I get the outrage about that, but as Burt Likko (iirc) correctly said, that’s mere dicta. Unusually written dicta, I’ll grant. But it’s not properly part of the legal logic of the case and has no real precedential value.

    Do you think employers should have to pay for insurance that covers blood transfusions? If not, *then you don’t actually support this decision*.

    My best friend growing up was a Jehovah’s Witness. I’m sympathetic to their beliefs. Now, do blood transfusions for JW’s rise to the level of abomination that abortion (or, if we prefer, “abortion”) does for many Christians, such that they would believe they’d sinned by providing insurance coverage that covered it? To me, that’s the key question here.

    Do you think only *religious* employers should be able to opt out of providing certain kinds of compensation? If not, *then you don’t actually support this decision*.

    No, but religion–because of the First Amendment–does hold something of a legally privileged position in American law. And the difference between the moral beliefs of a non-believer like me and a devout believe like my dear ol’ mum, is that I don’t believe I face the danger of eternal damnation. So my position is just that religion exemptions are an easier case to make, not that they should be the sole case.

    And as to this decision, it all comes down to how we discern the nature of a closely held corporation, which I think is debatable–nothing more definitive than this. If instead of HL the plaintiff had been Grace Bible College, I’d say the ruling was absolutely right. If instead the plaintiff had been General Electric, I’d say the ruling was absolutely wrong. But because it was HL, I’m ambivalent.

    Interestingly, none of us are talking about the other business, the Christian bookstore–also a closely held corporation, but more specifically religiously focused in the very nature and product of their business. Without making any assumptions, I wonder if those who are upset about the HL decision are a little more accepting as it applies to the Christian bookstore? I also wonder whether they would be more accepting of the ruling if it had in fact been about Grace Bible College, rather than a business organization (again, not making assumptions or trying to imply anything, just curious about where they draw lines, in cases that we haven’t yet discussed).Report

    • Avatar nevermoor says:

      I don’t think it matters. Any for-profit corporation, with the exclusion of b-corps (or whatever you call the thing Ben and Jerry’s is) receives a set of legal benefits and protections because it is created to conduct business and contribute to the economy. Among those privileges is that the entity’s owners cannot be personally liable for the corporation’s activities. This is because the company is DIFFERENT from its owners. So that’s my answer.Report

      • Avatar James Hanley says:

        @nevermoor

        If I understand you correctly–and please correct me if I don’t–your position is that the fact that HL is a closely held corporation doesn’t matter, because they are still a for profit corporation. Is that right? It’s the position that most here take, and a quite reasonable one. I’m not at all sure it’s wrong, I’m just also not at all sure it’s right. But it’s not a position I would try to argue is just plain wrong.

        If I may, what about the other example, Grace Bible College (a real place, by the way)? Since they’re not a for-profit, but a non-profit, would you allow them the exemption that you wouldn’t allow HL? Would you allow it for a non-profit that’s not religiously based, like, say, Stanford University?

        You don’t have to answer, because I’m not trying to put you on the spot or pin you down. I’m just curious where others would make a distinction as regards government requiring contraceptive coverage (those who aren’t drawing them at closely-held corporations), or if some folks wouldn’t make any such distinctions and would require all employing organizations to provide it. A general question, so if you prefer not to be put on the spot, please don’t feel compelled to answer.Report

      • Avatar nevermoor says:

        @james-hanley

        Yes, you’ve got me right. And I’ve conceded elsewhere that it is an opinion one could differ with. But the question was about a for profit Christian book store. My view is that wanting the distinction between owner and corp as a shield but not for this purpose is wrong. A non-profit is different, and I have no problem with an accommodation that keeps everyone covered without obligating the entity because the company exists to further its idiosyncratic goals. I think I would feel the same way about other business entities (like normal partnerships) that really are just a name under which individuals operate instead of a separate entity.

        So I’m ok with Grace College under the accommodation terms, and suspect I would be ok with something Stanford does (though I can’t imagine what it would be).Report

      • Avatar James Hanley says:

        Thanks, nevermoore. I’m glad we’re understanding each other.

        My view is that wanting the distinction between owner and corp as a shield but not for this purpose is wrong.

        I get that. It’s a powerful argument. Maybe I just have a stronger valuation for religious belief than a lot of others. And it’s fair to value things differently.

        suspect I would be ok with something Stanford does (though I can’t imagine what it would be).

        Something nefarious, no doubt. Can anyone really trust a school with a “marching” band like that?Report

    • Avatar DavidTC says:

      Now, do blood transfusions for JW’s rise to the level of abomination that abortion (or, if we prefer, “abortion”) does for many Christians, such that they would believe they’d sinned by providing insurance coverage that covered it? To me, that’s the key question here.

      There is almost no possible way this could conceivable work as any sort of legal principle, and there’s really no way to even *try* it without being unconstitutional.

      All religious beliefs and taboos are *officially* equally sincere in this country, from evangelicals objecting to abortion to Discordians refusing to eat frickin hot dog buns.

      I get where you’re coming from there, but I don’t agree. Gay marriage is about government discrimination. And while I understand a lot of people don’t think the distinction between government and private discrimination matters, I do.

      Does it change anything that Hobby Lobby is actually *not* required to provide insurance? And that if they decide to provide insurance, they are not required to provide insurance with contraceptive coverage either?

      Hobby Lobby is allowed to provide whatever compensation whatever they want (Erm, within min wages laws and whatnot), they just don’t get a *tax deduction* if what they provide does not legally qualify as ‘health insurance’. Choosing whether or not to give someone a tax deduction seems, quite reasonable, to be a government decision.

      And the concept that you can stand on religious principles and *demand a tax deduction you do not qualify for* seems a bit strange when actually stated. You can get some *really* screwy outcomes there: I am not Catholic, so it is against my religion to donate to the Catholic church, but *I demand the tax deduction I should have gotten from doing that*.

      An interesting question here might be how you feel about Obama’s recent move to require government contractors to not discriminate against LGBT people? This seems to be the same sort of concept.

      (Of course, libertarians will rightly point out that the government sphere gets so big that, at some point, it’s hard to find anything that’s outside it. Which is why, as you point out, most people think the distinction starts a little fuzzy anyway.)

      And as to this decision, it all comes down to how we discern the nature of a closely held corporation, which I think is debatable–nothing more definitive than this. If instead of HL the plaintiff had been Grace Bible College, I’d say the ruling was absolutely right. If instead the plaintiff had been General Electric, I’d say the ruling was absolutely wrong. But because it was HL, I’m ambivalent.

      The definition of ‘closely held’ here is almost nonsense in the context they’re trying to make it fit. ‘Closely held’ means more than 50% of the stock is held by five or less people. Which seems to have very little to do with anything. What if the other 49% of stock is held by thousands of people? What if the ‘five or less people’ don’t agree? Do stockholders hold *votes* to decide the corporation’s religions beliefs? Do these beliefs change?

      My position is that we already have corporations with morality. They’re called *non-profits*.

      If the owners of Hobby Lobby want to run a Christian organziation, they should feel free to *start* one, and hand the profits of Hobby Lobby over to them. And the current owners can even stop being the officers of Hobby Lobby and hire other officers, ones that don’t have a moral objection to obeying the law. Hell, they can (assuming they are the entire set of stockholders) *hand all the corporate assets over to their non-profit*, and operate the business *as* a non-profit.

      They don’t want to do that, because they want a corporation (If you will forgive me from getting a little religious) that serves both God and Mammon. And demands tax deductions from the government that it is not eligible for.Report

      • Avatar Jim Heffman says:

        “Hobby Lobby is allowed to provide whatever compensation whatever they want (Erm, within min wages laws and whatnot), they just don’t get a *tax deduction* if what they provide does not legally qualify as ‘health insurance’.”

        The latter, of course, being an idea that didn’t exist until the ACA passed. Let’s don’t pretend that there are decades of precedent for a government definition of “health insurance”.

        “Does it change anything that Hobby Lobby is actually *not* required to provide insurance? ”

        Uh-huh. HL is not “required” to provide insurance the same that that I’m not “required” to stay out of the carpool lane.Report

    • Avatar Michael Drew says:

      If instead the plaintiff had been General Electric, I’d say the ruling was absolutely wrong.

      The reason for this has to do with the rights of shareholders with different beliefs, not the rights of employees with different beliefs, is that not correct?Report

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