My memory may be a tad hazy. But I seem to recall that this accommodation was made. The employer could provide insurance without birth control. And the employees who wanted birth control support could get it from the insurer. The insurer would provide it at no extra cost, presumably on the basis that the actuarial cost of birth control is lower than the actuarial cost of pregnancy.
As I recall, Hobby Lobby objected and fought this in court. It was not about Hobby Lobby purchasing something they didnât agree with. In effect, they demanded the right to harm their employees.
Well, but weâre talking about compensation here rather than catering. I think thereâs a big difference. When I bring lunch in for everyone, Iâm not discharging my statutory obligations to employees, and I can pretty much do as I please. But if a generally applicable statute required me to provide lunch, and required me to serve meat, and I insisted that I alone should get to opt out, I donât think thatâd be reasonable.
When I obey a law of general applicability, this doesnât signify my agreement with it. I may honestly believe that some OSHA requirement which applies to my workplace is absurd; the obligation is to follow the regulation, though, not to agree with it. Hobby Lobby is free to make sure its employees know that if they use contraception, the family that owns the company will be sad to know this is happening. Hobby Lobby is free to use its facilities, and even its employeesâ on-clock time, to evangelize against birth control. Theyâre not required to endorse, and by their purchase of insurance they do not endorse, the use of birth control. It simply has nothing to do with the practice of their religion; it has only to do with othersâ non-practice of the ownersâ religion. And what do we generally say about that? We say that it is wrong to discriminate in employment on the basis of peopleâs religious practice.
Compensation is not employer largesse â itâs a commercial transaction. And it happens to be a commercial transaction many aspects of which are regulated in the interests of public health and safety. Some parts are variable and subject to contract. If provision of a daily lunch were part of an employment contract, then the terms of that provision would be subject to potential negotiation between employer and employee, and the employee who felt he would need to bring a ham sandwich every day to fill in the missing âmeatâ portion in his lunch would find the vegetarian-only buffet less remunerative. But for a variety of reasons, when we have a law which requires â or provides incentive for â the provision of employer-paid health insurance, we set minimum standards for coverage. We have to, or the promise of coverage becomes illusory. Terms of coverage do not require the employer to participate in the care and do not constitute any endorsement of the care. Here in WA we are required to provide coverage for all manner of pseudoscientific nonsense in health insurance policies. I have an actual bona fide moral objection to that and, unlike birth control, it almost certainly contributes to my cost of coverage. It doesnât matter.
Now, to be clear, this is not a majoritarian stance. I donât say things are good because they were adopted by our elected officials. Iâm just saying that we cannot really claim that we are being required to endorse or support something in violation of our consciences just by being obligated to follow a neutral rule of general applicability. Kim Davis in Kentucky comes to mind â she had the ludicrous fiction lodged in her head that somehow she was being required to ENDORSE gay marriage because she was the official who headed the office that had to issue the licenses. But when I take an easement down to the Recorder of Deeds and I get the Recorder to stamp the offical seal on it and put it in the records, there is no communicative content in what the recorder is doing other than to say âsuch-and-such document was given to me at this date and time and was represented as genuine by its presenter, and here is a copy of that document as it was presented.â If I take a deed down to the Recorder and in amid the operative clauses I announce that Jesus is the son of god, or is not the son of god, the Recorder will record it either way, and the act has nothing to do with the Recorderâs views; it will just deeply puzzle some future title searcher.
I think there is something terrifying about a law which holds that your statutory rights as an employee may depend upon your employerâs personal religious speculations. It gives those religious speculations the force of law and it denies those employees the equal protection of the law. The problem is not that the employerâs actions are contrary to the will of the majority; the problem is that they are contrary to the rights of the individual.
I believe thatâs correct. Hobby Lobby wanted to affirmatively deny the benefit of the law to its employees on account of its own, rather than its employeesâ, religious beliefs.
Thanks @nwrickert and especially @Puck_Mendelssohn , these are some good thoughts. I am continually trying to figure out how we can find room to respect those different than ourselves, while also being able to live out our beliefs. For the most part there is a lot of common ground, but with some issues itâs difficult to see a way forward.
You know, we had common ground and we lost it. The grand settlement of this issue in the First Amendment had a good 200-year run. I think what was lost was memory: specifically, the history which the framers remembered and which the fundagelical movement has taken great pains to forget, of a time when a man could be executed one year for insisting that transsubstantiation was real, and another man could be executed the next year for denying that transsubstantiation was real. They forgot the âGlorious Revolutionâ of 1688 and the Jacobite conflicts that followed, all driven by the fears of Protestants multiplied by the fears of Catholics, back and forth, and on and on.
A few years back I stayed in a Tudor house â an actual, literal Tudor house â in East Grinstead, south of London. Out the front window you could see a churchyard, and in that churchyard was a monument to some Protestants whoâd been burned at the stake under Queen Mary. The house I was staying in had been there when that had happened. There was almost an aura about the place, though I do not believe in ghosts of any sort.
The First Amendment was a moment of clarity and wisdom. It was one of those moments in history when people of good conscience set aside their differences and said: ânever, never again will we ever do this.â But, as Romeo Void sang, ânever say never.â The stability of the settlement is its own undoing, because the religious right somehow sees itself as the victim, rather than one of the mutual beneficiaries, of the constitution.
But youâre also free to push for new OSHA regulations too, right? I guess this is what frustrates me in this example is it, once again, can make it feel like the only recourse Christians have is to get into politics and solve the issue by changing laws.
This is a good point and speaks to my complaint above.
How do we determine if itâs neutral? I guess Iâm having difficulty seeing things like contraception coverage and gay marriage (where the country is divided) as neutral, or am I misreading that?
Yes, I do think itâs important to remember that the conflicts leading up to the first amendment were much more violent. Iâm annoyed when American Christians use the âpâ word (persecution) about this stuff.
Do you think this could be, in part, due to âzero sumâ thinking? If somebody on the âother sideâ gets something then that necessarily means Iâve lost something. That there can be no mutually beneficial agreement.
But from what is recourse needed? The inability to force others to suffer for differing from Hobby Lobbyâs owners in religious belief? Iâm not sure thatâs a grievance which anyone is obligated to take seriously.
By âneutralâ I mean that it applies to everyone regardless of religion and does not interfere with any religious practice. A law which is crafted to affect a particular religion would not be neutral â so, for example, a law prohibiting Halal slaughter practices would be non-neutral in effect, and could (if intended as a discriminatory measure) be non-neutral in intent.
Here, the law does not interfere with any element of religious observance or practice. The owners of Hobby Lobby are free to go on not using contraception and to express their view that this is somehow reflective of some moral obligation. Their obligation to provide health insurance coverage to employees is not imposed upon them as a consequence of their faith, but as a consequence of their status as employers. The purpose of minimum standards for coverage is not to prevent anyone from practicing his religion, and indeed, nobody can be compelled by his insurer to use contraception, so it does not interfere with the practice of anyoneâs religion.
Likewise, gay marriage. The ability of two people other than myself to get married does not involve my rights. My ability to marry does involve my rights, and being a heterosexual, I married a woman; but the fact that another man can marry a man doesnât impair that right of mine in any way. If we required churches to solemnize marriages to which they held doctrinal objections, then that certainly would be a violation of the First Amendment.
Bear in mind when we are talking about marriage, too, that we are not talking about âsocialâ marriage but âlegalâ marriage. Marriage has a constellation of personal benefits and relations built around it, in terms of laws of inheritance, presumptions in cases involving guardianship, parenthood, and that sort of thing. The fact that a man can legally marry a man does not obligate anyone who does not acknowledge that as a valid marriage to accord it any social recognition at all â at the very most all it does is obligate third persons to equal treatment in certain legal relations, so that, for example, as an employer I would be obligated to offer spousal coverage under our health plan to a same-sex-married employee as I do to an opposite-sex-married employee.
In no sense does âneutralâ mean ânon-controversial.â That some things and relations are politically contentious isnât a reality with which the First Amendment directly deals.
To some extent, yes. If we think of, say, the benefits of marriage as though they are a fixed resource which all married people share, then the admission of gay couples to the population of married couples dilutes those benefits. I donât think, however, that that sort of model is particularly credible for issues like this.
I think it actually just has to do with a majoritarian sense that people have, especially in smaller communities, that they are the dominant culture and that they have the right to dominate. I recall a young fellow in small-town Louisiana who objected to a prayer being scheduled for his high school graduation, and the prayer was withdrawn. Video of the graduation showed what happened: an angry crowd growled and shouted the Lordâs Prayer at the ceremony, taking its gentle words and giving them the character of a torrent of anger and hatred. I think I do not presume too much when I say that I donât think Jesus would have approved.
No simple account explains it and I think one could point to a lot of things. My take is that a lot of it makes sense as a kind of yowl of a downtrodden class of people â bereft of decent education, terrified of modernity, deeply xenophobic, and sure that somebody â maybe the liberals, maybe the Jews, maybe the black people, maybe the Devil himself â is taking away from them the little slice of what they once felt was their own. The collapse of so many rural economies, driven by the industrialization of farming and the failure of so many small manufacturing concerns, and the conspicuous rise in this country of immigrants who embarrass these people by showing up with nothing and rising so rapidly â it is a terrifying world for them. Education exists in their midst and they do not know how to use it, or are so suspicious of it that they refuse. The scorn Mencken heaped on the denizens of Dayton, Tennessee was no doubt richly earned, but those people have had a couple of generations of frustration and anger, and the blossoming of whole industries in the media and in religion seeking to exploit that frustration, since. It is a nasty ferment.
So I donât think it is primarily âzero-sum.â I think itâs a very strange reactionary movement against modern living. If this were another place and time these people would be the proletariat, murdering the aristocrats. But the aristocrats have largely managed to avoid being blamed, and the anger seems to be focused on those who have an education or who are involved in providing education: the so-called âcultural elite.â
There is a common expression which runs something like âyour right to swing your arms ends where my nose begins.â No conception of ârightsâ is stable if it does not hold to this basic principle. And while there are contexts in which the details are somewhat debatable and while there are contexts in which somebody will object that the nose was thrust in front of his fist, rather than his fist being thrust into the nose, in most situations we can see the difference.
The free exercise of religion is an important right. But we have got to make sure that we have fists and noses in mind, and we have also got to remember that this is a personal right which governs a personâs autonomy. Others also have this right, and they have other rights as well which bear upon personal autonomy. And if thereâs one subject on which the Reformation and the Enlightenment heartily agree, it would be the supremacy, in the private sphere, of individual conscience and judgment.
Enter the western liberal tradition: further, and deeper, affirmation of the supremacy of individual conscience and judgment. Charters of the rights of human beings, like our Bill of Rights, sprang forth, and what are the fruits? A cultural blossoming and broadening, a growth of the capacity for peace and justice, unprecedented in human history.
But this requires, from each of us, reciprocity. If the individual reproductive rights of the owners of Hobby Lobby are sacrosanct, are their employeesâ corresponding rights less so? Surely although the one set of people has a good deal more money than the other, they all breathe the same air and they all have the same basic capacity for moral judgment and the same yearning for autonomy. If the individual religious beliefs of the owners of Hobby Lobby are sacrosanct, what of the beliefs of their employees?
And so, what is the settlement, in the western liberal tradition, of these issues? We tend to say that where the essentials of the employment relation are concerned, the employer may demand things. The employer may demand that an employee wear a shirt while on the job. The employer may demand that, whatever the employeeâs religious beliefs, the employee not express these to customers. The employer may demand that, whatever the employeeâs religious beliefs, the employee must express the employerâs religious beliefs to customers.
But employees go home, too. And when they go home, the western liberal tradition says that employment is not servitude. Employment does not make one the employerâs loyal thane, sworn to his service even unto death. Off the clock and released from his hourly service, the employee is simply a person. He or she may wear a shirt, or not. He or she may shout religious messages at passing people, or not. And his or her reproductive choices are not the business of Hobby Lobby and its owners, no matter how they feel about such things.
We will always implement these things somewhat imperfectly in the law. âRightsâ in the way idealists speak of them are like essences, imperfectly mapping to real things and occurrences. But we have to recognize that this is a fist-and-nose problem, first and foremost, and that the nose, like the reproductive rights, belongs to the person itâs attached to, rather than to someone who has a contractual relationship to that person.
This is not, therefore, some sort of a âHobby Lobbyâs rights versus employeesâ rightsâ question. No right of Hobby Lobby or its owners, in any stable and workable conception of what ârightsâ are, gives Hobby Lobby the slightest interest in the matter. Itâs a question of Hobby Lobbyâs power versus employeesâ rights. Itâs a question of real ethics versus might-makes-right ethics. It does not surprise me when fundamentalists turn to might-makes-right as the proper source of all morality, but it does disappoint me when they fail to see that this brings them into collision with every good force that has lifted us up out of the muck.
Continuing with the theme of ethical quandries and basic human rights, how do we approach the concept that an employee can represent their employer even when off the clock? An employee clocks out at the end of the day and then goes on a Twitter storm spreading racist and misogynist comments across the internet. This same employee becomes publicly known for making hateful speeches in front of large crowds within the community. If that employee were someone like a high school teacher, would the school district be warranted in firing them? Would a private business be within their rights in firing this person because they reflect badly on the business?
That one does get dicey. It seems to me that the consistent thread in such cases is that off-work behavior is considered relevant either when (1) the work itself involves relations of trust and there is criminal or suspicious conduct (e.g., you work at a bank and then are caught abusing a fiduciary relationship in a family trust) or (2) the off-work conduct is directed against others in a way that undermines the suitability of the employee for working with other employees or with the public. I think that in both cases we can say that these are bona fide employment concerns and not merely the employer striking out against an employee for disagreeing with the employerâs views. But gray areas can and will arise.
Something along these lines happened where I live recently. The owner of a franchise ice cream shop has posted racist things since 5 years ago, before he even opened the shop. Screenshots of his numerous postings, which get more and more cringeworthy and are blatantly racist, got posted to reddit. People complained to corporate, who put out a statement against this franchise ownerâs rantings, but they also closed the shop completely. So now all the employees there are out a job. Corporate should have vetted this guy sooner, obviously. It was apparently well known in the community that he had these feelings.
Sticky situation all around. I feel bad for the innocent employees who just lost their jobs during a pandemic because of one guyâs behavior. And it was clear that this guy was the racist, not the corporate brand or the employees. The franchise is up for sale, so hopefully someone will buy it and those employees can continue to work. That place was busy. I even went there after 9pm December 30 year before last, and multiple people were in line. Itâs a walk up shop, so you stand outside and order outside.
(Iâm not completely insane going to a walk up ice cream shop in the middle of winter⌠I had a gift card that expired the next day, and my son had just expended a lot of energy at hockey practice )
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