The Thoughts and Musings of Tom Allain

If this is going to be a Christian nation that doesn't help the poor, either we have to pretend that Jesus was just as selfish as we are, or we've got to acknowledge that He commanded us to love the poor and serve the needy without condition and then admit that we just don't want to do it

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Archive for July, 2014

The Justice Chronicles Volume 15: Burwell v. Hobby Lobby: This Is Going To Cost Us

Wednesday, July 16th, 2014

The end of June is always an interesting time for me because I get to read a small mountain of Supreme Court opinions. I’ve generally found these opinions easy to read and it gives me a leg up on those who listen to 30 seconds of a news story on the opinion.

Far and away the opinion that has interested me the most was Burwell v. Hobby Lobby Inc.. Here is my (brief) analysis: According to the terms of the Affordable Care Act, if you are an employer you are required to provide health care to your employees (you can get tax credits if you employ only a few people). As part of this you have to provide birth control.

Hobby Lobby and a few other privately owned companies objected because they oppose abortion and feel that certain forms of birth control actually abort a fetus after conception. They filed suit against the Department of Health and Human Services and the court agreed with Hobby Lobby.

Justice Samuel Alito wrote for the 5-4 majority. He argued that if a company is privately owned by a small number of owners and they all agree that a law (in this case the Affordable Care Act) violates their core values, they are not required to violate those values. Much of this was based on the Religious Freedom and Restoration Act.

Justice Ruth Bader Ginsburg wrote the dissent. She argued that this will open a door to much greater problems. If we allow these companies to exempt themselves from laws that violate their beliefs, where do we end? What if another company finds all forms of birth control? Or a company whose beliefs on homosexuality prevent them from employing gays or lesbians?

I find Justice Ginsberg’s arguements compelling. To the extent that government has no business deciding which relgious beliefs are appropriate, we rely on people of those faiths to determine what they find offensive. And while mainstream America supports gay rights and birth control, good people of different faiths oppose them. If you are an employee of a small, privately held company, you are essentially a hostage of their beliefs even if they are not your own.

I read the opinion (I downloaded it for free on my iPad) and see a disconnect with what I’ve been reading in other outlets. The most troublind disconnect I’ve found is the impression given that these will only apply to small companies. But the opinion applies to companies with only a few owners, not employees. For example, Hobby Lobby is owned by one family, but they employ 16,000 people. Koch Industries employ 60,000. Simply put, as long as these companies don’t go public they can subject their employees to anything they want.

This wasn’t prominent in the decision, but I think this is an important issues: while Hobby Lobby and other companies are privately held, they are also incorporated. This allows the family financial protection if they go bankrupt; the creditors can only go after assets in the company and not personal assets. It seems to me, though, that these companies are trying to have it both ways. If they want protection for themselves, shouldn’t there be some protection for their employees? If these families see their companies as an extension of their own values, shouldn’t they then be compelled to “go all in” and not protect themselves?

I wonder how long it will take for the Court to see that they’ve opened a bad door.