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July 02, 2014 9:59 AM Godly Hobbies and Lobbies

By James Wimberley

Supreme Court of the United States
SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL
v.
HOBBY LOBBY STORES, INC., ET AL

Justice Wimberley, dissenting

I fully concur with the powerful dissent of my colleague Justice Ginsburg.

The claim of the plaintiffs also fails on separate grounds that her dissent does not go into and the majority opinion only superficially.

To establish any grounds for their claim, the plaintiffs must establish that their religious beliefs require them

  1. not to provide their employees with health insurance that includes contraceptive procedures they consider, against consensus medical opinion, to be abortifacients;
  2. as good employers, to provide their employees with comprehensive health insurance (except for the contraceptives).

I shall here address only the second claim. [Update] It is logically prior to the first. For if there is no religious obligation to insure, then putative obligations to insure in a certain way are trivial hypotheticals, no more worthy of the time of the court than the disputes between the Little-Endians and Big-Endians over the proper way to open a boiled egg (Swift, Gulliver’s Travels, Chapter IV). [/Update]

The Court has not asked for proof of these beliefs. In the former case, this makes sense. Evangelical Christians are known to be concerned about abortion to the point of obsession. Thousands of sermons, websites, books, articles, resolutions of synods, and demonstrations confirm this. However, the only evidence offered on the second claim is a bare assertion in the brief on the merits  (page 10, italics supplied):

Dropping insurance [….] would also harm the employees who currently depend on Hobby Lobby’s generous health insurance — and would undermine Respondents’ desire to provide health benefits for their employees, which is itself religiously motivated.

On the face of it the claim is incredible. What religion requires its followers, if they are employers, to offer health insurance to their employees? Orthodox rabbinical Judaism made the most comprehensive effort of any religion to provide guidance on the problems of everyday life - the everyday life of rural Poland in 1750, that is. It was unable to develop the scheme to deal comprehensively with the vastly more complex societies of the Industrial Revolution. In practice, all religions offer general principles of moral conduct, which adherents have to apply in daily life in the light of ordinary reason.

For religious people, everything they do is guided (or at least should be guided) in this way by their religious beliefs. As the dissent points out, it is quite impracticable as well as unsound in principle to extend the legal protections of religious liberty to all the actions of religious people with such a derived motivation. Such a sweeping view, giving priority in evaluating secular action to religious motives over all other rights and interests, would dissolve the notion of a common citizenship shared by those of all beliefs or none. The courts are therefore required unwillingly first to investigate whether a claimed religious exemption from the law is genuine, and not a scam or delusion; and second, to draw a boundary between protected religious action and unprotected action even where the latter’s motive is religious.

To pick an extreme and hypothetical example of the distinction. The Islamic jihadist leaders Osama bin Laden and Abu Bakr al-Baghdadi held and hold respectively three propositions:
1. The proper political order for Muslims is an Islamic state guided by sharia law under a caliph or other devout Muslim ruler.
2. Good Muslims should strive to bring about such an order.
3. Good Muslims should therefore engage immediately in unconstrained armed struggle, including acts of terrorism, to overthrow the corrupt pseudo-Muslim governments of nominally Muslim states and undermine by any means available their support by the United States.

Now proposition 1 certainly, and proposition 2 very probably, express religious convictions and expressions which are protected as the exercise of fundamental human rights. Were these gentlemen citizens of the United States, they would enjoy First Amendment rights to hold and expound these views. It is of interest, though not legally material, that proposition 1 would be endorsed by very large numbers of Muslims in the world, tens and perhaps hundreds of millions, and proposition 2 by a significant minority, in the millions. Proposition 3 is different. It is an inference from 1 and 2 that very few, a few thousands, are prepared to make, and the huge majority of their coreligionists condemn as an evil fantasy.

On the hypothesis of US citizenship, would we treat armed jihadism as a protected expression of religious convictions? Surely not. The religiously motivated actions of the owners of Hobby Lobby over health insurance are in no way comparable morally to those of the jihadists. However I have no difficulty in placing both outside the sphere of protected religious action.

To return to health insurance. The case for the Greens does not make the argument, but we can generously supply one. Their religion like others requires adherents to act justly and honestly in business dealings and relationships. Since they are owners of a company employing many workers, they ought to be a “good employer.” Thus far we can reasonably say we are still within the sphere of protected religious obligation. If a law were passed prohibiting the employment of left-handed individuals, they might well object strenuously to the injustice of the law, and refuse to comply out of Christian duty. I do not prejudge our own rulings on such a hypothetical case.

The next step is from “good employer” to “provider of health insurance”. As I observed above, they offer no evidence that their religion requires it, for the good reason that the evidence does not exist. There are no polemics, sermons, synodical resolutions, and so on canvassing the burning question of employer health insurance. It is simply country-club conventional wisdom among wealthy conservative businessmen that they ought to offer health insurance. The practice has solid business benefits: it keeps employees healthy, loyal and disinclined to move to greener pastures (sic); and it is favoured by public policy through tax breaks. These are not religious reasons.

The Greens could have made a moral argument, though they neglected to do so. In the absence of a national scheme of health insurance, most American workers have been in practice dependent on employer-based insurance for affordable and comprehensive group cover. The individual market was very expensive and indeed inaccessible to those with pre-existing health conditions. These factors therefore created a moral obligation on good employers to offer health insurance.

The argument had merit - up to the entry into force of the health insurance exchanges created by ACA. We can even concede that it had merit up to this May, since there was considerable doubt whether the complex scheme would work as planned. These doubts have been laid to rest. It is therefore open as a matter of law to all employers to close down their employment-based schemes and tell their employees to insure themselves on the exchanges, and they can confidently expect the transfer to work.

Since they will save a lot of money by doing so – the majority’s sketchy back-of-the envelope calculations to the contrary (page 34) are singularly unconvincing – employers can compensate employees with wage increases or refunds, or conceivably take out top-up policies as is commonly done by French and British employers. What religious duty can there possibly be to refrain from doing this? Perhaps the Greens prefer to keep a scheme because it increases their patriarchal control over their workforce, or makes them feel better. They are entitled to act in this way, but their claim that their religious beliefs force them to do so is ridiculous. I therefore find against them and for HHS.

In fact, since I am about to retire and this is the last opinion I shall deliver here, I shall in my turn overstep judicial propriety. The claim of the Greens I have demolished is not merely ridiculous, it is false. They do not honestly believe that they have a religious obligation to offer health insurance. Their lawyers have made up the obligation to fill an inconvenient gap in the argument. Nor do I believe that my colleague Justice Alito, who is not a fool in that sense though he is in the ones that matter, genuinely thinks they do either. He buys the lie because he needs to in the long siege of Roe v. Wade.

It’s been good knowing some of you.

* * * * * * *

Whatever good legal reasoning there may be in the above is due to my reading of Marty Lederman’s series of posts at Balkinisation. Don’t blame him for the rest.

Update July 2
In oral argument (h/t Jeffrey Toobin at the New Yorker), Justice Kagan broached my argument, asking Hobby Lobby’s lawyer Paul Clement:

I’m sure they want to be good employers. But again, that’s a different thing than saying that their religious beliefs mandate them to provide health insurance …

but then veered into another direction:

… because here Congress has said that the health insurance that they’re providing is not adequate, it’s not the full package.

The because here does not work. Congress’ intentions may erode the Greens’ secular concept of “good employer”, but not their religious motives, if they exist.

[Cross-posted at The Reality-Based Community]

James Wimberley was head of the mutual assistance section of the department of education for the Council of Europe in Strasbourg, and secretary to the Councilís higher education and research committee. He is retired.

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