Rules Are for Schmucks: The Immorality of Others

Last week I looked at some of the financial aspects of the Supreme Court’s Hobby Lobby decision, noting how it will take money out of the pockets of those of us who are not religious believers for the benefit of those who are.

For those not interested in money, here is another implication of the court’s opinion to chew on.

Hobby Lobby was not decided under the Constitution, but under the “Religious Freedom Restoration Act of 1993” (RFRA). The core of this federal statute is that

Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, [unless doing so] (1) furthers a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. (Emphasis added.)

Justice Alito’s opinion touches on all of these elements, including whether a for-profit corporation like Hobby Lobby is a “person” (Alito says it is), whether there is a “compelling government interest” in having employers provide contraceptive coverage in their healthcare packages (Alito says he doesn’t need to decide this), and whether there is a less restrictive means of furthering that interest (Alito says there is—just have the nonbelievers, rather than the believers, pay the bill). The question to consider here is whether an employer’s payment of a healthcare insurance premium constitutes an “exercise of religion” in the first place.

There are some affirmative things people do that are clearly an “exercise of religion,” like going to church, saying a prayer, or participating in a sacrament. If government wants to prevent people from doing these things, then, under RFRA, it better have a strong reason for doing so. It’s possible to imagine a number of reasons, but they have to be extreme situations; going to church in a neighborhood quarantined for an Ebola outbreak could possibly be banned, as could participating in a sacrament involving the sale of heroin.

There are also things people avoid doing that can fairly be called an “exercise of religion.” Some Jews and Muslims refuse to eat pork. A government command to eat pork would be tough to justify under RFRA, unless government considers it a compelling interest to identify closet Jews and Muslims (as was the case under the Spanish Inquisition, which used pork-eating for exactly this purpose).

Catholic doctrine bans abortion and most methods of contraception. Refusing a government command to use these forms of contraception, or to have or to perform an abortion, would be an “exercise of religion” for a practicing Catholic. The idea of such a government command is not far-fetched, even outside of China and its “one-child” policy. In Poland just last month, the government ordered a Catholic obstetrician to perform an abortion of a severely deformed embryo, against what he claimed to be the dictates of his conscience. The prime minister himself became involved, saying that “Regardless of what his conscience is telling him [the doctor] must carry out the law … Every patient must be sure that … the doctor will perform all procedures in accordance with the law and in accordance with his duties.”

I’m not sure what to think about the Polish situation, but I am sure that no one in the United States is telling Hobby Lobby, its owners, or any of its employees that they have to use any particular form of contraception. All the law is saying is that when the company compensates its employees for their hard work by providing them with health insurance, that insurance has to cover several enumerated forms of artificial contraception. No one (especially Hobby Lobby itself) has to use these services; they just have to be available under the policy.

This raises what Alito called “a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself [e.g., writing a check to an insurance company] but that has the effect of enabling or facilitating the commission of an immoral act by another [e.g., using the proceeds of that check, very indirectly, to commit contraception].”

Let’s go way out on a limb and posit that shooting an innocent child is immoral, even if he was teasing your nephew. Handing your nephew a check and saying “Go buy a gun so you can shoot that kid” is certainly close enough to still be immoral, and handing a check to your nephew who laments that he would finish the kid off if only he could afford a gun is still close enough. But how about just giving your nephew a gift certificate to Wal-Mart, which happens to sell firearms? Or a check inside a birthday card, which your nephew can use for any purpose he likes? There is a point at which the moral link between the facilitator and the evil act breaks down. If I were a philosopher, which I’m not, I might say that point has something to do with the intent of the facilitator.

Where does Alito draw the line? He doesn’t. He simply rules that if a person claims that facilitating the act of another violates his own exercise of religion, then it does violate it, and that’s the end of the inquiry. This allows judges and others tasked with the hard work of interpreting RFRA to take longer lunch breaks.

Though I’m no philosopher, I’m enough of a lawyer to figure out that if it’s OK for Hobby Lobby to tell its employees, “The medical insurance we provide can’t be used for certain forms of contraception,” it’s a very short leap from there to allowing them to say, “The paychecks we provide can’t be used for those forms of contraception, either.” If the company were to institute a code of conduct governing its employees’ private lives, centering on the use of cash compensation provided by Hobby Lobby, the logic of the Alito opinion would be that RFRA bars the government from doing anything about it.

This is no more farfetched that the Polish abortion controversy. In Ohio, employees of Catholic schools were recently told to sign an employment contract forbidding “improper use of social media/communication, public support of or publicly living together outside marriage, public support of or sexual activity out of wedlock, public support of or homosexual lifestyle, public support of or use of abortion, public support of or use of a surrogate mother, public support of or use of in vitro fertilization or artificial insemination, public membership in organizations whose mission and message are incompatible with Catholic doctrine or morals, and/or flagrant deceit or dishonesty.”

There’s more than a little irony in having the outfit that runs the Vatican Bank forbid “flagrant deceit or dishonesty,” but that’s for another day. The main point of the Hobby Lobby opinion was that if the government allows religious non-profits like Catholic colleges to omit contraceptive coverage from their healthcare policies, then it has to allow closely owned for-profits like Hobby Lobby to do the same thing. So if a non-profit like the Ohio Catholic schools can fire its employees for joining the American Humanist Association, can Hobby Lobby do the same thing? I think Justice Alito would have to say, “Yes, so long as they claim that their religion commands it.”

The geniuses at the Department of Health and Human Services (HHS) ruined their case when they first allowed churches, and then non-profits “affiliated” with churches, to provide their employees with health insurance policies that exclude contraceptive coverage. As Alito correctly points out, “When this was done, the Government made clear that its objective was to ‘protect’ these religious objectors ‘from having to contract, arrange, pay, or refer for such coverage.’ Those exemptions would be hard to understand if the plaintiffs’ objections here were not substantial.” If from the outset HHS had simply said “All employers have to provide the same minimum coverage, period,” Alito’s argument would have been much tougher to make. One simple law that applies to everybody—why is this such a hard concept to grasp?