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February 19, 2014 4:45 PM The Central Flaw in Hobby Lobby’s Suit

By Ed Kilgore

To hear many conservatives and even some liberals, the suit brought by the for-profit company Hobby Lobby seeking relief from the contraception coverage mandate of the Affordable Care Act represents a last line of defense by religious believers (of a certain type, to be sure) against the aggressive secularist agenda of the Obama administration.

Buying into that idea has always required some mental gymnastics. The coverage mandate does not require that employers supply employees with contraceptives. It simply requires that if they provide health insurance it must include coverage for certain preventive procedures, devices and medications, including contraceptives. The employee chooses whether or not to avail herself of this coverage, and no reasonable person would hold the employer morally responsible for that choice, any more than if the employee used her wages to purchase the very same contraceptives, which—lest we forget—are not only legal but are constitutionally protected as legal.

But as legal scholar Garrett Epps explains at The Atlantic, ignoring the distinction between directly providing versus indirectly “facilitating” access to contraceptives is not only nonsensical, but violates a string of Supreme Court decisions—decisions that, ironically, have been designed to protect religious institutions from claims by nonbelievers that indirect government support for religious activities violates the Establishment Clause.

The Court has repeatedly declared this “facilitate” argument categorically false. Most recently, it did so by proclaiming that an objector to how someone else uses his or her wages has suffered no injury and thus can’t even bring a lawsuit. It has so held in cases that concern the most sacred single religious guarantee in American history—the promise, in the First Amendment’s Establishment Clause, that no taxpayer will be forced to pay tax money into the coffers of a religious organization….
For the past 30 years, the Court has been quite friendly to cooperation between government and religion; and over the years, it has established a principle that should apply in the contraceptive-mandate cases. That principle is this: When government directly funds religion, the Establishment Clause is violated; but when government gives benefits to individuals, and the individuals pass on the benefit to religion, no dissenter is injured, so there’s no violation.
By 2000, the Court decided that federal funds didn’t need even to go through private hands—they could flow directly from the state to religious schools to purchase textbooks and classroom equipment. Justice Clarence Thomas explained that under the Louisiana program at issue, each school got aid based directly on the number of students it enrolled. The parents’ choice of school was independent, and thus “it is the students and their parents—not the government—who, through their choice of school, determine who receives” the government funds.
The Roberts Court reaffirmed and extended this rule as recently as 2011 in Arizona Christian School Tuition Organization v. Winn. Arizona passed a statute allowing taxpayers to take a $50 tax credit for donations to “tuition organizations.” Each organization funds scholarships for students to attend private schools, and an organization can choose to fund scholarships only at particular religious schools.
No problem here, Justice Anthony Kennedy briskly asserted. The program’s “contributions result from the decisions of private taxpayers regarding their own funds …. [T]he tax credit system is implemented by private action and with no state intervention. Objecting taxpayers know that their fellow citizens, not the State, decide to contribute and in fact make the contributions.” Some Arizona taxpayers might object, on grounds of conscience, to the diversion of funds from tax coffers to Christian schools; but those taxpayers had suffered no injury at all—the Court dismissed the case for lack of “standing to sue.”
It’s a pretty powerful strand of precedent. Even public benefits flowing directly to religion, the Court has repeatedly held, do not violate the religious rights of citizens—if they flow because of private decisions by other citizens….
If the Court cares for consistency, that logic is another nail in the Hobby Lobby coffin.

That is true unless, of course, the Court treats the private decisions of women about what to do with their earned employment benefits and their bodies are somehow not worthy of judicial notice.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

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