After reading the Twitter reaction to the U.S. Supreme Court’s decision in the Hobby Lobby case, I began researching a post on what women could do now that corporations have exactly the same rights people do, including playing power forward for the Miami Heat, and now that contraception has been outlawed throughout these great United States. Then I read the decision and, to my surprise, found that it didn’t quite say any of that.
So what does it say? The court found that owners of closely held corporations have the same rights as sole proprietors under the Religious Freedom Restoration Act. They cannot be forced to violate their religious beliefs unless the government can genuinely find no other way to achieve a compelling public purpose.
But that sounds so boring compared to War on Women! And so that’s the narrative the Internet chose. Here’s a representative tweet from my feed this morning:
So let's all deny women birth control & get closer to harass them when they're going in for repro health services. BECAUSE FREEDOM.
Logically, this is incoherent, unless you actually believe that it is impossible to buy birth control without a side payment from your employer. (If you are under this tragic misimpression, then be of good cheer! Generic birth control pills are available from the drugstore for about $25 a month.)
Otherwise, according to the reasoning of that tweet, I am being denied something every time my employer refuses to buy it for me: cars, homes, Hummel collectible figurines. And don’t I have a First Amendment right to express my love of round-faced Bavarian children doing adorable things?
The answer is that yes, of course, I have a right to buy Hummel figurines, or automobiles, or a slightly-falling-apart row house within convenient walking distance of the Capitol. But that does not mean that the government should compel my employer to purchase them for me, particularly if my employer is a rabid environmentalist who thinks that everyone should bike to work. Why is birth control different?
The answer is that it isn’t different, practically. The women who need help buying birth control are probably having a much harder time buying reliable cars, which are, in most of America, necessary to access basic necessities such as jobs, food and health care, yet we’d look askance at a law that tried to make employers buy everyone at least an entry-level Toyota. The cost of birth control is relatively small, and because it’s a monthly purchase, it’s hard to get much benefit from adding it to your insurance package; the insurer is just going to charge extra for the insurance to cover the cost of the birth control. Now, obviously, there’s some cross-subsidy from other employees who don’t use prescription birth control, but overall we are talking about a transfer worth dollars a month to young, single women. Now, there are women out there for whom a few dollars a month is a crippling expense, but I venture to say that few of them are salaried workers getting health insurance from closely held corporations with deeply religious owners; most of them will be hourly workers on Medicaid.
Obviously, I don’t mean that literally no one will be affected by this ruling. No law ever has zero impact; name the stupidest law you can imagine, and it will be easy to name some very sympathetic person who might benefit from it. But we cannot have every possible law simply because someone might benefit.
Overall, the economic impact of this ruling is very small. The emotional impact, on the other hand, appears to be huge. Why the disparity?
The answer, I think, is suggested by this tweet from Jamelle Bouie:
The basic sense I get from this Court is it doesn’t see workers as persons worth respecting as much as vassals for employers...
For the public, this is less a battle about practical outcomes than about who (and what) deserves deference in our society: women, corporations, born-again Christians. This is true of many of the battles that ignite us most passionately these days. I wrote about this in 2010, about the bitter DC mayoral race:
Most people agree that this is ultimately a proxy battle over gentrification. It's all rather nebulous, because of course Vincent Gray hasn't campaigned on rolling back gentrification. He seems to support all the services Fenty has expanded, with the possible exception of the school reforms. Instead, the theme of his campaign -- and the more generalized opposition to Fenty -- has centered around respect and process.
But respect and process virtually never become issues by themselves. Rudy Giuliani was a bruiser who trampled over everyone who got in his way, and people loved him. Yet thirty years before him, John Lindsay's attempts to shake up city government meant he was vilified over . . . respect to the community. You can't look at Marion Barry's career and think that Washington is a town which can't stand to have its prim notions about proper legal procedures violated.
Reading The Ungovernable City, which details Lindsay's rise and fall, I'm struck by how often the issue of respect comes up. There were very real underlying grievances about the way he handled things like community control of the schools -- and very real ethnic conflicts within neighborhoods, as blacks and Puerto Ricans displaced the white ethnics who had previously dominated much of the city. But these conflicts were often framed in terms of a slight to the community that lost, rather than any tangible harm they suffered.
When very different groups are trying to live together in one big country (or one big city), you inevitably end up with sharply clashing desires, harshly discordant visions of what constitutes the good life and the public weal. Compromise should be sought where compromise is possible, but sometimes it isn’t; sometimes, the law has to choose one side or another. For the side that loses, this is not just perceived as a loss, but also as a demotion, a relegation to outsider status: The government cares about them, and not me.
It shouldn’t have to be this way. I like to think that I care about both the women and the religious conservatives who share this great nation of ours. It seemed to me from the beginning that being made to pay for something that someone views as deeply morally wrong (or to facilitate the transaction for same, if you take the general view that employee health insurance ultimately comes out of employee wages) was going to be a giant burden on people of conscience. And because the loss to women was small, it seemed fairly obvious to me that we should grant the freedom of conscience to people who clearly have some very deeply held beliefs -- not because women’s health is not very important, but because this was not going to have a very important impact on women’s health.
And yet the logic of politics, and the culture war, made this sort of fine distinction-drawing impossible. As I see it, this case should never have made it to the court; the Barack Obama administration should have pre-empted the issue by quietly allowing exemptions for nonprofits and closely held corporations that had clear and deep religious beliefs that existed outside of the desire not to pay for contraception. (Hobby Lobby, for example, is closed on Sundays in observation of the Sabbath, even though this costs them sales; I think we can all agree that the Little Sisters of the Poor have demonstrated a fair amount of commitment to demanding religious principles.)
Instead, the administration chose to pick this fight -- and got a definitive ruling that will probably have much broader impacts than quiet exceptions. Nor is this surprising; it was pretty predictable from earlier rulings like Citizens United, in which the court also held that people don’t lose their First Amendment rights simply because they have come together in a group or legally organized that group as a corporation.
Presumably, the administration hates this ruling -- but at the same time, it has to love the passion that it has engendered. This is going to be fundraising gold for Democrats for the next two years. In a politics that cares more about symbolism than substance, that too was predictable. And it’s hard to avoid the conclusion that this was the prediction that mattered more. Politics may not be rational, but it still has its own remorseless logic.
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