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Neither the First Amendment Nor RFRA Enacted Mr. Robert Nozick’s Anarchy, State and Utopia

[ 108 ] November 8, 2013 |

Today, let us go to the comments section to address some terrible conservertarian arguments from Mr. David Nieporent. Objecting to my argument that the contraceptive mandate doesn’t violate RFRA, he first demonstrates a fundamental misunderstanding of both my argument and the dissent:

It is unclear what makes Harry Edwards, or Scott Lemieux, an expert on the religious beliefs of Francis and Philip Gilardi. If you want to argue — and of course you do — that you don’t care about their religious beliefs, that’s one thing. If you want to argue that the federal government has a compelling interest in enforcing the contraceptive mandate notwithstanding their religious beliefs, and that there’s no less restrictive means of accomplishing its goals, such that the mandate should survive the RFRA, that’s one thing. (Although completely unsupportable, empirically.) But your claim, and Edwards’, that it doesn’t really violate their religious beliefs at all because it doesn’t require that they themselves use contraception, is ludicrous.

Of course, neither Edwards nor I are arguing that the mandate doesn’t burden the Gilardis “at all.” I agree that on the question of whether there is any conflict between religious practice and a statute, the courts should be deferential to an individual’s characterization of their beliefs. The legal standard, however, is not whether there is “any” conflict. It’s whether there is a substantial conflict. Courts do not have to be deferential on this question, and indeed since the finding of a substantial burden triggers the rare use of heightened scrutiny they can’t be deferential.  And for the reasons Edwards explains, this is pretty much the definition of a de minimis burden: the Gilardis are not required to use contraception, required to promote the use of contraception, or denied the right to publicly oppose the use of contraception. Being required to offer insurance plans that cover contraception may constitute a burden, but it’s not the “substantial” one Sherbert requires. In Sherbert and Yoder, there was a clear, direct burden involved, not an incidental one.

The idea that an irrefutable bare assertion of conflict with religious belief, no matter how trivial, is sufficient to make any state action subject to strict scrutiny is absurd. It’s an obviously unworkable standard, it’s not what the Court said in Sherbert, and it’s not the policy enacted by Congress, which also requires a “substantial” burden. The backdoor attempt to subject all regulations to strict scrutiny does, however, show what’s going on here: this case is about opposition to the ACA, not religious freedom. It’s not a coincidence that the author of this opinion also believes that some unspecified parts of the Constitution require the protection of “cowboy capitalism” against the “democratic process.” The contraceptive mandate might well violate the imaginary “cowboy capitalism” clause of the Constitution. It does not, however, violate either the 1st Amendment of the real Constitution or the Religious Freedom Restoration Act.

Responding to my point that upholding the argument would actually result in a net diminution of religious freedom because many employees will be denied a statutory right base on religious beliefs they don’t share, we get a world-class terrible analogy:

Me not serving pork chops to my employees in the company cafeteria — solely on religious grounds — does not impose my religious beliefs on them. They’re free to go eat pork chops; they’re just not free to get them from me.

If the government then passes a law that says that all employers with company cafeterias must serve pork chops to employees, and I object on religious grounds, that’s still not imposing my religious beliefs on them. They’re still free to go eat pork chops.

The analogy is howlingly inapt for a number of reasons. To be comparable, pork chops would have to have such clear and unique health benefits, especially for women, that they are often prescribed by doctors. Employers would have to receive a substantial taxpayer subsidy to pay employees in food vouchers, which can be used to purchase pork, rather than wages. The employer would then have to prevent employees from using the vouchers to purchase pork — not only at the company cafeteria, but from a third party — and deduct the typical amount used to purchase pork from the voucher, while keeping the tax subsidy and not providing the employee any additional compensation. Now that the analogy actually resembles the facts of the case, we can see that 1)the interposition of the religious beliefs of the employers between the government and the employees leaves the employees clearly worse off, even if they remain free to purchase pork with their remaining wages, and 2)the burden on the religious practices of the employer — which boils down to the distinction between employees doing something with wages in the form or insurance or ordinary wages — has a ways to go to rise to the level of being “trivial.”

The analogy does, however, do a pretty good job of self-refutation — The Gilardis aren’t being forced to eat pork chops. Their claim is like the lone cashier in the company cafeteria arguing that she has a statutory right to refuse to ring up purchases that involve pork while still keeping her job at full wages. It is, in other words, transparently frivolous, and no conservative would be defending the Gallardis’ claim if it was directed against a policy they liked.

Comments (108)

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  1. TribalistMeathead says:

    Once you see the sheer ignorance most libertarians hold of what it’s actually like to be a non-union employee of a corporation, it’s not terribly surprising to see that so many work for the government.

  2. Jeremy says:

    “I agree that on the question of whether there is any conflict between religious practice and a statute, the courts should be deferential to an individual’s characterization of their beliefs.”

    I wouldn’t even concede this much, especially not in an era when Republicans/conservatives reflexively shout “religious freedom!” to avoid doing anything they don’t want to do.

    I mean, let’s use this contraceptive mandate as an example: is it actually a violation of the Christian religion, or any branch thereof, to operate a for-profit business, which, in accordance with applicable law, provides a group health insurance plan to its employees, which in turn provides coverage for contraception for its employees? I sincerely doubt that the answer is yes.

    Moreover, no one has adequately explained why it violates one’s religion to provide a group health plan that covers contraception, but not to pay wages to employees who use such wages to buy contraception. The obvious explanation is that neither scenario violates anyone’s religion, and instead, you are correct that what this is really about is opposition to the ACA. “Religious freedom” in this context is nothing but a pretext.

    • Anon21 says:

      s it actually a violation of the Christian religion, or any branch thereof

      Okay, so the problem here is that courts are constitutionally prohibited from defining what is actually a “branch” of the Christian religion. Even if the belief is an entirely idiosyncratic interpretation of religious doctrine, and even if the belief is connected to no organized religion, if the belief is sincerely held, it qualifies for protection—again, if and only if it is “substantially burdened” by the government activity. But Scott’s quite right to concede that organs of the government have no place whatsoever in defining the contents of an individual’s beliefs.

      • Jeremy says:

        I guess I misspoke in my previous post–I don’t think that the courts should actually rule on the question of whether an individual actually holds a certain belief. I agree that as a practical matter the courts would be unable to determine the content of an individual’s beliefs, and they would quite likely be prohibited from doing so.

        However, I personally am not willing to concede that any of the people fighting this mandate even believe that it violates their religion. They just don’t like Obamacare. The Eden Foods case was a great example, where the Plaintiff admitted that his case had nothing to do with religion, he just didn’t like the government telling him what to do.

        In other words, what I am unwilling to concede is that this mandate actually violates anyone’s sincerely held religious beliefs.

        • Jeremy says:

          I am certainly willing to be proven wrong, but so far all the evidence is that the people fighting this mandate are motivated solely by anti-ACA animus.

        • David Hunt says:

          In other words, what I am unwilling to concede is that this mandate actually violates anyone’s sincerely held religious beliefs.

          The U.S. is a big country. I’m sure there are people out there that this would apply to. That, or course, has nothing to do with this specific case, nor do I think that it would matter if it did.

          e.g. Aren’t Jehovah’s Witnesses against blood transfusions? That doesn’t mean that they can refuse to offer insurance to people that cover them.

      • Bijan Parsia says:

        Exactly.

        I’d add as well that relying on contingent features of the beliefs is a bad idea. It’s not hard to “fix” your doctrine so that complying with Obamacare at all is really and truly against it. But as Brad’s Quaker example shows, there are limits to this. The limits should be external and objective, not based on content or sincerity, if at all possible. I.e., public health or child safety can be in conflict with sincere religious belief, but the public health or child safety considerations do not crumble before those beliefs. If your religion requires that you ritually murder an Iranian-American computer science who is on sabbatical every other year, I’m quite glad that we can constrain that bit of your religious freedom.

        Thinking about:

        Moreover, no one has adequately explained why it violates one’s religion to provide a group health plan that covers contraception, but not to pay wages to employees who use such wages to buy contraception.

        I would think that a line would be something around double effect or indirection. By providing wages, you are not, yourself, procuring or supporting contraception. Once the money leaves your hands, your control is gone so your hands are clean. However, if you directly cover the contraception option, you will, in all likelihood, end up partially paying for someone’s contraception and thus be complicit. It’s the difference, I’d guess, between giving a homeless person a twenty hoping that they’ll buy food but expecting that they will buy a beer, and taking them into the store to go shopping (for up to $20 worth of groceries) and saying, “But I won’t buy beer.”

        (Of course, the nominal reason to do the shopping in this case is to ensure that the money is spent “appropriately”.)

        (Not that I think this is a good justification at all, mind, but it fits in with a lot of doctrine.)

        • flamingolingo says:

          However, if you directly cover the contraception option, you will, in all likelihood, end up partially paying for someone’s contraception and thus be complicit.

          I don’t think even this logic holds. The employer contribution to an employee’s healthcare is part of the latter’s compensation package. The employer isn’t giving the employees a gift by helping cover their health insurance, but paying them.

          • sibusisodan says:

            Yeah. The employer is complicit by virtue of being an intermediary in the insurance transaction, but no more complicit than if their employees took their wages and spent them identically. They’re just more aware of their complicity.

            So until they also start petitioning the govt to end the tax-deductibility of employer-organised insurance, since their tax dollars are already being used that way to fund practices we know they disapprove of, my sympathy is minimal.

            • Bijan Parsia says:

              But paying for it directly vs. not paying for it is the distinction, not whether it’s a gift or not. It’s double effect: You know your employees will spend some of their wages on contraception, but *you* haven’t spend anything on anyone’s contraception. Whereas with paying for a plan, you have, in part, directly paid for someone’s contraception.

              If I owe my gambling addicted friend $1000, I have to pay them back even knowing that they’ll blow it at the casino. But if they ask me to pay them in chips, I feel that it’s not unreasonable to think that that’s a bridge too far. In the latter case I’m more directly involved in the objectionable activity.

              I’m not a huge fan of double effect arguments, since they often are deployed in evil and stupid ways and overstress the distinction. For example, if I were forseeable that you would use the $1000 to pay to have someone killed, I think it’s required for me to try to thwart that. But in the gambling case, I think my move is perfectly reasonable.

              • Lee Rudolph says:

                Well, if we’re going to get all Jesuitical—no, you don’t “know your employees will spend some of their wages on contraception”, nor in the case of your paying for a plan that they will exercise their option to obtain contraception under that plan. You may have a sound actuarial argument that some fraction of them are likely to do so, but unless you are actively snooping on them in entirely illegal ways (or have friends in the NSA to do it for you) you don’t know. So, at the worst, you have created an occasion of sin for them; but you do NOT know they’ve actually sinned, and a fortiori you do NOT know you’ve sinned through them. And (if I understand it correctly) your culpability for creating an occasion of sin is blind to the distinction you’ve pointed out (in a way that your culpability for actually MAKING them sin might not be).

                • Bijan Parsia says:

                  Well, if we’re going to get all Jesuitical

                  Yay!

                  no, you don’t “know your employees will spend some of their wages on contraception”

                  This was part of a stipulation, i.e., the scenario wherein the employees use contraception either way. I agree that in generally you don’t know that they will either way, so you have to go with risk. But then, it’s the risk of being directly complicit vs. being, well, not complicit.

                  And, of course, if we look at the gambling example, you are directly paying the money to the the organisation faciliting the activity and setting things up so that it is easier to get to the objectionable behavior and nigh impossible to avoid it (with that money).

                • DrS says:

                  Not to get too deep into theologicalist type talk, but the religious right are perfectly ok with setting up a system whereby creating occasions where some will sin is ok.

                  In fact, there are plenty of times that they demand it, especially in service of the “free market”.

                • Bijan Parsia says:

                  Hey DrS,

                  Sure! And I’ll also bet that these folks are being straight up hypocritical. However, again, it’s possible to distinguish allowing freedom to sin or even providing generic infrastructure which enables sinning, without specifically encouraging or supporting sin.

                  So, you have nice parks, but whoops! some people have sex there. You aren’t thereby required to close the parks. This is very different than setting up a “for public sex” section of the park, even if no one uses it.

                • cpinva says:

                  “This is very different than setting up a “for public sex” section of the park, even if no one uses it.”

                  hey, i’d vote “yes” on that referendum question! i’m old, I get my entertainment where I can.

                • Jeremy says:

                  Bijan, I understand your point, but I respectfully disagree. Is there really a religion out there that says “you can give people wages knowing that they will be used to purchase contraception, but you cannot give people a health insurance plan that will be used to purchase contraception”? To me, this is still a distinction without a difference.

                  And from the standpoint of the conscience of the hypothetical religious business owner, in either scenario the owner knows for a fact that he or she has subsidized the contraception use of his or her employees. Is God really okay with people knowingly supporting others’ sins, as long as the support is sufficiently indirect? Although I am unable to divine the Divine, I suspect the answer is no.

                • J R in WV says:

                  Oh, Jeremy,

                  You have proven that God doesn’t allow Strict Christianists to pay wages in denominated monies!

                  We’re all going to be paid in flour and baking powder now! No Pork, either!

                  Your Bad, dude!

                • Bijan Parsia says:

                  Hi Jeremey,

                  Actually, double effect reasoning is standard catholic doctrine and mobilzed in life or death situations wet abortions.

                  If a Catholic doctor is willing to let a women AND her baby die because they can’t do an abortion directly, I fail to see that they wouldn’t regard directly supplying contraception equally seriously.

                  You may think its specious, jut the reasoning does exist and I think mobilzed in some cases by sane people. Cf the gambling case.

      • cpinva says:

        “Even if the belief is an entirely idiosyncratic interpretation of religious doctrine, and even if the belief is connected to no organized religion, if the belief is sincerely held, it qualifies for protection—again, if and only if it is “substantially burdened” by the government activity.”

        that’s not true, and never has been, since 1789. a “sincerely held religious belief” in human sacrifice is not considered “substantially burdened” by the gov’t outlawing murder, never has been.

        • Anon21 says:

          You need to read more carefully. The question of whether the belief is sincerely held is the first step. If there’s no sincere belief, no protection is available. If there is a sincere belief, the next step is to ask whether that since belief is substantially burden by the government action. If the sincere belief is substantially burdened, the final step is to ask whether the government action is justified by a compelling interest and is narrowly tailored to achieve that interest. What I was responding to was the idea that there’s a step zero: determining whether the belief is a legitimate interpretation of the doctrine of this or that religious sect. Courts are not allowed to undertake step zero; they have to accept the content of the belief as described by the adherent, then ask whether that belief is sincerely held.

          • cpinva says:

            “Courts are not allowed to undertake step zero; they have to accept the content of the belief as described by the adherent, then ask whether that belief is sincerely held.”

            no they don’t. if the content of the adherent’s belief is something already illegal, it matters not a whit how sincere their belief is, or if the belief is even really a part of their professed “religion”. the court needn’t go even that far. if that were the case, there just aren’t enough judges and courthouses in the land.

            • Anon21 says:

              I’m sorry, but you’re just wrong. If the content of practice-compelled-by-belief is illegal, and the belief is sincerely held, the court then asks whether the belief is substantially burdened by the existing prohibition on the practice. In your hypothetical of the person who sincerely believes that human sacrifice is a necessary tenet of his religion, the answer is probably that laws against murder do substantially burden his religious practice. What you are completely missing is the last step—compelling government interest/narrow tailoring. That’s where laws against murder are saved.

              You seem to have gotten it into your head that if the end result of the legal inquiry is clearly against the claimant, then each independent step of the analysis must also be against him. That’s wrong. Your human sacrifice practitioner loses at step 3, not before.

              • cpinva says:

                “You seem to have gotten it into your head that if the end result of the legal inquiry is clearly against the claimant, then each independent step of the analysis must also be against him. That’s wrong. Your human sacrifice practitioner loses at step 3, not before.”

                hogwash. if the act itself is illegal, the courts needn’t go any further, because the answers to 2 & 3 are moot. once a contract has been determined to be for an illegal act, the courts needn’t go any further, in determining that it’s unenforceable. murder is illegal, period. that someone holds a “sincere religious belief” in human sacrifice is irrelevant to the issue at hand. presumptively, question 3 was answered, long before the religious issue came up, as it has been in the case of the ACA.

                • Anon21 says:

                  RFRA is a standard that other laws are measured against. (So is the First Amendment, but Smith ensured that most laws would be held to a very low standard.) If it were otherwise, it would have no force whatsoever. The point is that the law being challenged must justify itself within the RFRA framework, assuming a sincere religious belief is present and a substantial burden is imposed. So yes, a (federal) law against murder would have to pass muster under the compelling state interest/narrow tailoring inquiry, assuming a plaintiff with a sincere religious belief in the necessity of human sacrifice came forward to challenge it. Because of RFRA’s purpose, the illegality of the practice claiming RFRA sanction under current law is baked into the case.

      • Dilan Esper says:

        Okay, so the problem here is that courts are constitutionally prohibited from defining what is actually a “branch” of the Christian religion.

        I don’t think this is true. Obviously courts should generally avoid this where possible, but if a statute requires that analysis, it requires it.

        • Hogan says:

          Any statute that did that would be establishing a religion, and therefore unconstitutional.

          • cpinva says:

            “Any statute that did that would be establishing a religion, and therefore unconstitutional.”

            apparently, both the tax court and supreme court disagree with you, as they have established a set of criteria, in determining whether an entity qualifies as an actual church. these criteria make no judgment on the entity’s beliefs, just determining if it is a real church.

            • Hogan says:

              Gee, then that’s not what we’re talking about, is it? Not whether it’s a church, but whether it’s really and truly a Christian church.

              • J R in WV says:

                No, NO!

                Any church works in this country, Sikh, Hindi, Shaker, Quaker, Jewish, even Christian.

                But NOT necessarily Christian!

              • cpinva says:

                “Gee, then that’s not what we’re talking about, is it? Not whether it’s a church, but whether it’s really and truly a Christian church.”

                the determination is whether or not it’s a church, Christian or not. there have been cases where the courts (including the supremes) have determined that a church is a legitimate offshoot Christian church. so yeah, they have made those distinctions.

                • Hogan says:

                  the determination is whether or not it’s a church, Christian or not.

                  Have you read Dilan’s comment? The one I was responding to?

                  there have been cases where the courts (including the supremes) have determined that a church is a legitimate offshoot Christian church. so yeah, they have made those distinctions.

                  What are those cases?

          • Scott Lemieux says:

            Any statute that did that would be establishing a religion, and therefore unconstitutional.

            This was actually Stevens’s argument in City of Boerne.

        • Anon21 says:

          I think Eugene Volokh has the right of this: http://www.volokh.com/2010/10/20/may-courts-interpret-contracts-under-religious-law-islamic-law-jewish-law-canon-law-etc/

          The Establishment Clause forbids courts from determining what is or is not a true tenet of a particular sect, regardless of what a statute may say. And in any event, I don’t think RFRA has any requirement that a court determine if a protected religious belief is a correct interpretation of Catholic or Mormon or Jewish dogma; the only question is whether the belief in question is sincerely held. I suppose a subsidiary question which rarely arises is whether the belief is religious in nature, but again I think the answer to that question cannot involve any interpretation of religious doctrine, but rather has to refer to standards that depend on the claimant’s assertions, such as whether the claimant feels that a deity compels adherence to the practice.

          • J R in WV says:

            I’m pretty sure a deity (nor a Deity) is not required here.

            Because requiring a deity is too close to establishing a religion.

            That’s my belief, and I’m a stickin’ to it!

            • Anon21 says:

              You’re correct. I was using that as an example of one kind of thing that surely would be considered a religious belief, but RFRA and the First Amendment protect nontheistic religions, too.

  3. brad says:

    I ain’t no lawyerist, but seems to me that if Quakers are taxed to fund the military then…

  4. Murc says:

    Their claim is like the lone cashier in the company cafeteria arguing that she has a statutory right to refuse to ring up purchases that involve pork while still keeping her job at full wages.

    Or the lone cashier at a pharmacy arguing they have the statutory right to refuse to ring up contraception while still keeping their job at full wages. They’re both so transparently ludicrous that…

    What? Oh.

    • Another Holocene Human says:

      Oh, believe me, the legal team bringing these cases is well aware.

    • DrDick says:

      “Terrible conservertarian arguments” are Nieporent’s modus operandi an I am pretty sure he would actually buy the argument you are presenting.

    • cpinva says:

      “Or the lone cashier at a pharmacy arguing they have the statutory right to refuse to ring up contraception while still keeping their job at full wages.”

      or a licensed pharmacist refusing to fill a prescription, because it violates their personal religious beliefs, and still keeping their license. that would never happen in va! oh, um, well, never mind!

  5. Aimai says:

    No mention of Robert Nozick would be complete without this:

    My google fu and my computer are not letting me get to the actual link to Brad’s page but this is a quote from it from a site by a cranky philosopher who thinks its an ad hominem to point out that Libertarians can’t make their own philsophy work so why should we trust them to evaluate its real world implications when they can’t even figure out how their own closest subject (themselves) would act or when they themselves would act always in the most unprincipled manner?

    This point was brought home to me most powerfully when I discovered that the critique of Robert Nozick’s Anarchy, State, and Utopia that was most effective in providing my students with the proper critical distance from the book were not any of the critiques of Nozick’s philosophy…but was instead a little piece, “Anarchy, State, and Rent Control” in the New Republic…about how Robert Nozick used the Cambridge Rent Control Board to squat in Eric Segal’s apartment until he had extorted $30,000. [...]

    Whenever I teach “Anarchy, State, and Rent Control,” odds are that the class will then have a furious argument over whether Nozick’s failure to take his own libertarian principles very seriously should or should not be taken as a reason to distrust Nozick’s book. I have, after much thought, decided that it should be taken as a strong reason to distrust Anarchy, State, and Utopia.

    • Bijan Parsia says:

      I remember reading that article back in the day. Hilarious.

      It was quite good in pointing out that you do live under the regime you live under and not the one you wish for, but also that there was something odd and unseemly about the enthusiasm and extremity with which Nozick pursued his case.

      • Another Holocene Human says:

        It’s not really odd when you consider the personality type that is drawn to libertarianism.

      • Aimai says:

        Just before his death, in an interview, he seems to have explained to the interviewer that there is some “I felt pissy with Eric Segal” clause that makes it more or less ok. The basic point which is that absent laws forbidding being an asshole, which might make for even more stringent regulations than rent control, the world has a whole lot of Robert Nozicks and they are probably all going to act pretty badly if they get half the chance. Its not that he exploited a legal loophole, its that he would have done even more harm absent regulation because clearly he values his well being above that of any other person or system of government. As Brad points out elsewhere, the argumen tthat libertarianism will actually be good for the poor (non property owners) is obviously bunk but bunk that Nozick occasionally needs to argue because his philsophy is so patently pro-rich. In other words: as a philosopher as well as a citizen Nozick and presumably his followers will always do what is advantageous under any set of rules. No set of rules just means more mayhem.

    • Pseudonym says:

      I’m not always willing to agree that people who compromise with reality are hypocrites for abandoning their fantasies. I might support a higher capital-gains tax rate, but am I a hypocrite for only paying what I owe according to the IRS’s accounting? Likewise, professed libertarians taking advantage of Social Security and Medicare is not a huge scandal in my book. But when it comes to abuse of the law I have less patience. Or was Nozick just trying to heighten the contradictions?

      • jefft452 says:

        “I might support a higher capital-gains tax rate, but am I a hypocrite for only paying what I owe according to the IRS’s accounting?”

        No, because taxes and voluntary donations to the government are not the same thing

        • Pseudonym says:

          Right. Tax rates are a collective agreement for which the aggregate benefit stems from the total contribution and not the donations of any individual. But Nieporent et al. are too busy masturbating to their dark vision of democratic government being conducted at the point of a phallic symbol (i.e. a metaphorical gun) to notice any distinction.

  6. JP Stormcrow says:

    The broccoli horrible comes back as the pork chop horrible. Only even less relevant.

  7. Snarki, child of Loki says:

    “It is unclear what makes Harry Edwards, or Scott Lemieux, an expert on the religious beliefs of Francis and Philip Gilardi. If you want to argue — and of course you do”

    It is strangely ironic that David Nieporent’s objection is based on Scott not being able to know what beliefs are going on in the Giliardi’s mind, but that Nieporent ABSOLUTELY KNOWS what Scott’s inner motivations are.

    But, unfortunately, par for the Conservitard course.

  8. Bijan Parsia says:

    Great take down and discussion, Scott. A couple of small additions to:

    The analogy is howlingly inapt for a number of reasons. To be comparable, pork chops would have to have such clear and unique health benefits, especially for women, that they are often prescribed by doctors. Employers would have to receive a substantial taxpayer subsidy to pay employees in food vouchers, which can be used to purchase pork, rather than wages. The employer would then have to prevent employees from using the vouchers to purchase pork — not only at the company cafeteria, but from a third party — and deduct the typical amount used to purchase pork from the voucher, while keeping the tax subsidy and not providing the employee any additional compensation.

    Pork consumption is a subset of food consumption and (barring the unique health benefits) has substitutes. Eating *pork* isn’t satisfying a nigh-universal drive either. In the contraception case, you are burdening the category (non-procreative PIV sex) which is socially and (somewhat) biologically strongly driven (which is asymmetrical burdensome on women to manage or resist). Plus, the burden is high on insurance companies and individuals in cost and on individuals in health, and, well, life.

    Should Jehovah’s Witnesses be able to supply health insurance that forbids transfusions?

    • Another Holocene Human says:

      Forget about sex. That’s an attempted derail (see Limbaugh, Rush). Many women take hormonal contraception in order to retain their fertility in order to be able to have children in the future. (Others take them because of serious medical conditions, such as surviving certain cancers, or abnormal hormone production, which just adds a whole other level of cruelty here to this discussion.) There are a number of conditions that can be treated by hormones which otherwise would be treated by cauterizing the womb or removing it. The latter has a lot of nasty side effects including diminished life expectancy (bladder collapse is another great one).

      The bishops who started this mess don’t understand women’s reproductive health and think that their religious education makes them equal to doctors and biologists. (They love to pontificate about zygotes too, another topic they know little about.)

      But even worse are those who know exactly what they are talking about–those who think that a woman, or the family she belongs to, should not be able to control when and whether they have children. This includes preventing conception or preserving fertility. If you don’t believe me, see the persistent attacks on IVF.

      • Hogan says:

        Many women take hormonal contraception in order to retain their fertility in order to be able to have children in the future. (Others take them because of serious medical conditions, such as surviving certain cancers, or abnormal hormone production, which just adds a whole other level of cruelty here to this discussion.)

        And whether they’re using them for this or any other reason is, I should hardly need add, none of their employers’ damn business.

        • Aimai says:

          Can the employer forbid the women from having safe sex with contraception they purchase with their wages? Because that is basically what is happening here. The health insurance is no more than a kind of wages/benefit.

          • Pseudonym says:

            Right, it’s pretty well-established that the government has the right to force — i.e. coerce, with the threat of violence, at the point of a gun! — employers to compensate their employees with a guaranteed number of cold hard simoleons (debased as they are like all fiat currencies) rather than, say, vouchers for the company store (that doesn’t carry contraceptives).

            Does this violate the freedom of contract, the only freedom libertarians actually value? Well, not really. This isn’t East Germany. Nobody is forcing them to live under the auspices of the U.S. Constitution and its government and laws. If they are unhappy with the provisions of that contract they are free to seek another venue and have hundreds to choose from. I even suspect that they won’t be missed.

      • Bijan Parsia says:

        I agree with all of those, but…are they forbidden? Perhaps I’m naive but I thought that the idea was to forbid things being prescribed for contraceptive purposes, not for these other purposes.

        It’s worse than I imagined, isn’t it :(

        • stepped pyramids says:

          My understanding is that insurance companies either cover a medication or they don’t. Surgeries, diagnostics, procedures, etc. might be approved or denied based on the relevant diagnosis but I don’t think that’s done for medication. So a contraceptive-free insurance plan would not cover hormonal birth control pills for any purpose.

          I very well could be wrong, though.

      • MAJeff says:

        Forget about sex. That’s an attempted derail (see Limbaugh, Rush). Many women take hormonal contraception in order to retain their fertility in order to be able to have children in the future.

        When I was living there, women in North Dakota were required to get their doctor to swear they were prescribing contraceptives for the “other” reasons even if it was a lie and they were prescribing for them for contraceptive purposes. The (almost monopoly) largest insurer in the state refused to cover contraceptives for contraceptive purposes.

        (I’m grateful every single day that I fled that shithole of a state)

    • cpinva says:

      “Should Jehovah’s Witnesses be able to supply health insurance that forbids transfusions?”

      well, yes. and Christian scientists shouldn’t have to provide health insurance at all.

      • john not mccain says:

        I think its a damn shame doctors are legally allowed to treat Christian Scientists at all. It’s like the government is saying their religious beliefs are wrong. It should also be legally impossible to murder an evangelical.

  9. Steven desJardins says:

    If there’s a federal regulation requiring airlines to give meal vouchers to passengers who miss their connections, and El Al wanted to hand out vouchers that could only be used at the two airport restaurants that maintained kosher kitchens, I’d have no trouble with the federal government slapping them down. If El Al wanted to serve only kosher meals on their flights, on the other hand, I’d be fine with that. I’m not sure how I would formulate a standard that distinguishes between the two cases, but I’m quite sure there is one.

    • Aimai says:

      But there’s no religion that *forbids* the eating of kosher meals so how would that infringe on anyone’s religious rights anymore than the airline picking the restaurants that will accept a low cost voucher to provide the service violates anyone’s rights? This actually happened to me in France. The airline produced a voucher but only one restaurant in the entire airport would accept it, and the food was god awful.

      • Lee Rudolph says:

        Food that induces the feeling of awe at God trumps merely kosher food any day!

      • Light Rail Tycoon says:

        Sikhs are prohibited from Eating kosher meat.

        • Aimai says:

          I stand corrected. I did not know that! However, one could argue that they could go vegetarian, in that case. If they can’t eat food that is slaughtered incorrectly I’m not sure there is any accomodation to be made, is there? If the positions were reversed and Orthodox Jews were given vouchers only good at a barbecue restaurant which did not serve kosher meat would they be entitled to a special voucher so that their religious sensibilities weren’t infringed or would they just be out of luck?

          • L2P says:

            I think that’s kind of backwards.

            The government isn’t forcing anyone to take the potentially discriminatory action in either example. El Al is, on it’s own, choosing to only have Kosher food; Airline B is, on it’s own, choosing to allow only barbecue (pork, I assume?) There’s no government action here.

            A more interesting question would be whether the government could require vouchers for alternate restaurants so that El Al had to provide a voucher for pulled pork sandwiches. The answer, up until a few weeks ago, was obviously “yes.” That’s a minor infringement, not a substantial one.

    • TribalistMeathead says:

      Both are pretty unlikely due to a) airlines frequently being viewed as common carriers by the courts and b) El Al’s desire not to alienate potential passengers who don’t keep kosher.

  10. Dave says:

    Why does a belief about the merits of contraception get away with being a religious belief that is protected under the 1st Amendment?

  11. Malaclypse says:

    There is one rather germane thing that is always overlooked. At least in my experience (sit on benefits committee for Massachusetts employer), benefits plans that offer contraception are not, for painfully obvious reasons, actually less expensive than plans that do not. So this isn’t that someone is complaining that they are forced to pay for contraceptives. This is either 1) panty-sniffers who want too punish the sluts, and are willing to pay extra to do so, or 2) people who want to whine about government, and will seek out any excuse, not matter how transparent, to do so.

    David, obviously, is 3) both.

    • Malaclypse says:

      Gah. Plans with contraception are not more expensive than those that do not. I can haz edit button now, pleaz?

    • Aimai says:

      People have a hugely difficult time understanding this–I had just this argument with my stupid brother-in-law. They can’t grasp that paying for something (contraception) can be cheaper than not paying for it and paying for the various ills and costs of pregnacy. Its like they lack conservation of mass or movement or something. Or brain cells.

      • DrS says:

        It also points out just how dumb the anti-abortion/anti-contraceptive stance is with regard to their purported outcomes.

        If they were truly interested in reducing the number of abortions they should be heavily in favor of contraceptive availability.

      • jefft452 says:

        “They can’t grasp that paying for something (contraception) can be cheaper than not paying for it”

        Do they ever pay to have the oil changed in their car?

        • cpinva says:

          “Do they ever pay to have the oil changed in their car?”

          no, because they’re manly men, and they’re not going to let a bunch of weenie engineers tell them what to do with their car!

  12. Box of Hair says:

    Shorter Nieporent and every other wingtard on this issue:

    My belief in my god entitles me to pick your pocket and / or break your leg if I have the power to do so, and your refusal to allow me to do so is an intolerant infringement on my religious liberty.

  13. Incontinentia Buttocks says:

    This is rather like shooting fish in a barrel. Unfortunately, I fear that our Supreme Court may provide said fish with a bullet-proof lid.

  14. Pseudonym says:

    David M. Nieporent: all the sneering arrogance and incoherent bloviation in support of institutionalized cruelty of Dagchester or JenBob, but only a small fraction of the entertainment value.

  15. Matt says:

    Since the Gilardis’ company’s actions in buying insurance are apparently a “personal religious exercise”, I’m sure they’ll have no objections whatsoever to having all the OTHER actions of that company treated as personal ones – as in, personally LIABLE ones. Who needs a corporate veil?

  16. Pseudonym says:

    As with all things pro-life/anti-sex/anti-woman, it’s instructive to consider how much the movementarians distort and contradict science in pursuit of their goals. I think I remember the Hobby Lobby folks objecting to birth control on the basis that all hormonal birth control drugs (and presumably IUDs or whatnot) were really abortifacients, since there’s conflicting evidence (now considered unlikely) that the drugs may interfere with implantation in addition to their primary mechanism of suppressing ovulation. Presumably they left the woman’s uterus permanently embedded with little fetus graveyards as well. I wish those folks were forced to be more explicit about their belief that it is a positive duty of all woman at all times to cultivate their wombs such that they are maximally receptive to the implantation of blastocysts. Beyond all the philosophical masturbation, that’s what Nieporent et al. are really arguing: the ability of employers to use their control over compensation to enforce the receptivity of the uterine linings of their employees shall not be infringed.

  17. Anonymous says:

    Help me out here: how is providing health insurance for a tax break an expression of religious belief?

  18. stepped pyramids says:

    Hobby Lobby is not required to provide health insurance for its employees. They have the option of not providing it (and potentially paying fees under the ACA, but that’s just a cost of doing business).

    What I don’t understand, as a non-lawyer, is how the regulations here could be construed as regulating Hobby Lobby’s activity at all. The insurance companies are being regulated here, not Hobby Lobby. When Voodoo Doughnut was ordered to stop selling NyQuil donuts, that prevented me from buying donuts with NyQuil in them, but I can’t see how that counts as the State of Oregon regulating my right to eat NyQuil donuts. Does that make any sense? Do any of the billion lawyers here have an explanation for why Hobby Lobby even has a leg to stand on?

  19. Shwell Thanksh says:

    Tracing the nerve that has been touched here back to its basal ganglion, we find the bloated sense of entitlement that these two feel in their corporate roles to exert control over the companies’ employees’ lives outside of work.

    So-called “Christian” corporations have no souls, no consciences, and no beliefs.

    Forcing workers to bow to executives’ religious beliefs is a betrayal of their employment agreements — it’s like an advanced stage of metastasis in which the “Peter Principle” becomes the “Simon Principle”.

  20. cpinva says:

    what both hobby lobby and the ghilardi’s are arguing, is that employers should have dominion and control over their employee’s both on and off the job. this might have some substance, if they were paying their employee’s off the job. since they aren’t, it doesn’t.

    their is no such thing as a “religious, for profit” business, period. a for profit business has no religious beliefs, in and of itself. the owners might, but they aren’t the business.

  21. marc sobel says:

    Interesting analogy. One of the cashiers at your local grocery’s name tag say “Ahmed”. I noticed that when he handles pork, he first puts it into a bag so he doesn’t touch the package which might have juice from the meat on it.

    I didn’t remark on it to him.

  22. Tybalt says:

    Can anyone explain to me what the beliefs of Francis and Philip Gilsrdi have to do with any freaking thing at all? Francis and Philip Gilardi employ no one and the ACA does not apply to them. Courts are awfully deferential to the laity of corporat personhood when, say, liability of those owners is at stake. Why not now?

  23. [...] mandate “substantially” burdens this belief. For reasons I have previously discussed at length, this argument is remarkably weak. The mandate does not require anyone to use contraception or [...]

  24. [...] I’ve argued at some length, the crucial problem with the argument that the contraception mandate violates RFRA is that holding [...]

  25. [...] with so many conservertarian arguments, this is an argument based on “freedom” that would result in a net diminution of freedom. The employers bringing the suits want the tax subsidy to compensate workers in health care rather [...]

  26. [...] exemption to neutral laws is a big deal, particular if the Supreme Court ends up defining the ludicrously trivial burden of the contraception non-mandate as “substantial.”  An individual exemption would [...]

  27. [...] I hope that the “basic civil rights protections are slavery” meme becomes a prominent feature of the Republican celebrations of the imaginary Martin Luther King who was totally a Reaganite before his time that recur every January. And it’s not that Republicans oppose civil rights; they just support the Jesse Helms version, and I’m sure if Helms were alive today he’d enthusiastically agree that civil rights statutes are like slavery and denying arbitrary individual exemptions to generally applicable laws is the essence of tyranny. [...]

  28. [...] As you can see from Paul Clements at the oral argument, the strategy of the litigants has been to for all practical purposes read the threshold test out of RFRA. Under Clement’s theory, almost any bare assertion of any degree of conflict with religious practice is sufficiently “substantial” to trigger strict scrutiny. For reasons I’ve discussed already, this would be a bad and unworkable way to read the statute. [...]

  29. […] I’ll return to the issue of how the court should interpret RFRA later today. But the fact that the managers of the Hobby Lobby never noticed that the contraceptive coverage in the insurance they offered to their employees intolerably contradicted their Deeply Held Religious Principles until the Republican Party decided that the  Affordable Care Act was the greatest threat to freedom in known human history tells you what you need to know about how seriously we should take these legal arguments. […]

  30. […] they’re entitled to. Does McArdle have any defense for the Court’s proposition that Congress intended any bare assertion of religious conflict to trigger strict scrutiny for every fede…? Of course not; the decision reaches a pro-employer, anti-employee outcome that feels right to her, […]

  31. […] litigants should have failed because 1)the requirement that insurance plans cover contraception does not substantially burden the religious beliefs of employers, and 2)accommodating the employers leads to unacceptable burdens on third parties who do not share […]

  32. […] idea that what constitutes a “substantial burden” has to be determined by the party alleging the burden is absurd. Unfortunately, that seems to be the standard that Hobby Lobby established, and as a result the […]

  33. Heron says:

    Hell, I’ll make that argument. By their lights, the earth and all on it are the creations of god -a divine work- and the literal Word of god, since god made all things through speech. To deny the word of god or oppose the works of god is, by their own beliefs, to be irreligious, immoral, anti-Christ, blasphemous, and heretical. By insisting in their beliefs upon interpretations of human biology and chemistry that are counter-factual(and indeed, willful lies) the Gilardis are denying the Word and opposing the Works of God and thus, according to their own beliefs and system of morality, in opposition to their God and their faith in it.

    Not only does accepting a scientifically valid understanding of contraception not violate their faith, it is indeed required by it. To refuse to accept god’s work as it is, is to refuse the Light of god’s Truth as the intelligence god gave us reveals it, in favor of Lies, and we all know who the father of THOSE is. Lemieux and Edwards’ views are no attack upon the Gilardi’s faith; indeed, they are a call to the Gilardi’s to turn their faces back to god, and to cease their blasphemous, heretical march towards personal damnation. Far from being a burden, their arguments are a life-line to redemption if only these prideful hypocrites would take it.

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