Rules Are for Schmucks: American Jizya

When Arabs burst out of Mecca and Medina in the seventh century to extend their rule from the Atlantic to the Indus, they devised an ingenious means of persuading conquered nations to “peacefully” convert to Islam. They called it jizya. This was simply a per capita tax to be paid by everyone – except Muslims, who were exempt. As might be expected, this attracted millions of subjects to the subtle beauties of the Islamic faith, especially the bit where you don’t have to pay the jizya tax.

The Islamic State that has seized large chunks of Syria and Iraq is now imposing jizya on the unfortunate infidels in those territories. But you needn’t travel to a war zone to see how jizya works – our Supreme Court has now set an American version in motion.

The Hobby Lobby case isn’t about contraception. It’s about money. The company’s owners don’t want to pay for certain things they find objectionable, any more than I want to pay for things I find objectionable, like ethanol subsidies. But because they are religious believers, and I’m not, they win, and I lose.

Justice Alito’s opinion for the majority was based on the “Religious Freedom Restoration Act” (RFRA), a sweeping statute that allows religious believers (but no non-believers) to pick and choose which federal laws they wish to follow, unless the government can prove it was impossible to bend over backwards to accommodate them while still achieving (most of) the purpose of the law. The particular law here was one that says that if a company is going to provide health insurance for its employees, that insurance has to cover contraception.

Alito cited two ways in which the government could get contraceptive coverage to the Hobby Lobby employees while still allowing the Hobby Lobby owners to pick and choose what their money will be used for. Plan A is simple: just let nonbelievers foot the bill. Believers, like the Hobby Lobby owners, would be exempt from payment. Nonbelievers, like me, will just have to dig a little deeper to come up with the money to compensate Hobby Lobby employees for the hard work they do to help line the owners’ pockets. If Congress takes Alito’s invitation to write this into law, staffers may want to consult Islamic jurisprudence on the jizya for drafting tips.

Alito’s Plan B is less simple to explain, because it is essentially a hoax. When Obama’s healthcare implementation team first drafted the regulations on contraceptive coverage, they invited the camel’s nose into the tent by allowing churches to exempt themselves if they felt like it. Of course that didn’t satisfy the God industry, because it didn’t cover huge organizations like schools and hospitals that were “affiliated” with a church, but not a church per se. When they squawked during the middle of the re-election campaign, the administration came up with a bizarre rule to the effect that in these cases the employer doesn’t have to pay for contraceptive coverage, but the insurance company the employer selects still has to provide it.

So if the employers aren’t paying for the coverage, who is? Are the insurance companies simply making less profit? (Not in this universe they aren’t!) Are all the nonbeliever employers paying a little more, so the believer employers can pay a little less? If so, we’re back in a jizya situation. Or is it all a big scam, with the Catholic hospital and school employers paying exactly what they would have paid but for the “exemption,” the Catholic hospital and school employees getting exactly the coverage they would have gotten but for the “exemption,” and the only tangible evidence that any exemption exists at all being a slight difference in the paperwork trail? Alito’s point, which the dissenting opinion never really addressed, was that if HHS could make this accommodation for religious non-profits, it could make it for religious for-profits as well, thus allowing the government to bend over only slightly backwards to give the God industry its way.

Legal challenges are already being mounted to the effect that the “special exemption” is nothing more than doubletalk, and my uninformed guess is that they are probably right. Both the Hobby Lobby lawyers and Justice Alito were careful to leave the door open to these challenges. Unless the government can demonstrate that religiously-affiliated employers are paying smaller premiums because their policies don’t cover contraception (even though their employees actually do get full contraceptive coverage), my money says these employers will win their case.

And what if the premiums for nominally contraception-free insurance policies do turn out to be demonstrably cheaper, without any economic disadvantage to a company’s employees? It is the deeply-held religious conviction of most American businesses (including any that I might ever run) that making more money is better than making less. It will be a brave few holdouts who end up paying the jizya to benefit everyone else.

There’s a lot more that can be said about the implications of Hobby Lobby – which really holds nothing other than that RFRA means what it says – but that will have to wait for next week’s column.