Conscientious Objection in the Hobby Lobby

Posted by WiredSisters on March 26th, 2014 filed in Abortion, Anarchism, Health and Medicine, History, Moral Philosophy, Peace Testimony, Sexuality

Back when I was a graduate student in sociology, I did a research paper on conscientious objection to military service.  This may seem like an esoteric subject these days, since it mostly applied to young men faced with conscription into the armed forces.  We don’t conscript any more, we let the economy do the job for us.  Any young person, male or female, who has a high school diploma or the equivalent, and any hope of going to college, is going to give a lot of thought to military service, which is one of the few available ways of paying for college.  But nobody gets forced to join up, so nobody much needs to look for legal exemptions from having to do so.

Back then, though, you had to prove that your objection to serving Uncle Sam arose from sincerely held religious or moral or ethical beliefs.  Your sincerity got judged mostly by your draft board, a bunch of local civilians who asked you stuff like “What church do you belong to?”, “Where did you get these weird ideas?”, “What makes you think you’re better than the guys who joined up?”, and “What would you do if somebody was raping your sister?”  Shortly after writing the research paper, I became a draft counselor for people facing conscription into the Vietnam War, and had to help them in earnest in the search for non-silly answers to such silly questions. 

 Now the proprietors of the Hobby Lobby claim to be facing a similar situation, and the Supreme Court seems to be applying a lot of the same rules to their case.  I watch eagerly to see whether any of the Supreme Court cases that arose out of the Vietnam War rear their heads again (think “Seeger” and “Welsh” and “Kerley.”)  But I’m not holding my breath.  Given their average age, the Supremes can be excused for having difficulty remembering cases from 50 years back, when most of the rest of us can’t even remember Vietnam in any context other than restaurants with interesting soups (“pho”)  and sandwiches (“ban my.”) Dunno how old the Hobby Lobby’s lawyers are, but they probably don’t remember either.

 A lot of the questions are the same, however.  The government requires somebody to do something that conflicts with his,her, their, or its religion.  The First Amendment rears its hallowed head.  The judiciary wants to know how much of a conflict the government’s demands really impose, and how sincere are the plaintiffs in their religion.  Who will suffer the most if the government wins?  How about if the plaintiffs win?

But nobody is trying to draft Hobby Lobby.  All that is being demanded of them is that they either: provide their employees with health insurance that includes contraception, or pay a financial penalty for NOT providing any health insurance at all, and letting their employees fend for themselves on the ACA insurance exchanges.  The said penalty, apparently, is LESS than the cost of providing the insurance, so they don’t even lose any money through choosing that alternative.  They claim that the only reason they don’t want to pay the penalty is that they want to think of themselves as good-guy law-abiding employers.  How is this evidence of a sincerely held religious belief?  How is it parallel to the penalties imposed on young men back in the Vietnam era, who faced up to 5 years in prison and a $5,000.00 fine for refusing to comply with the draft?

 There are a bunch of other holes in the Hobby Lobby’s arguments, too.  One is that there is no way to know in advance whether any of their employees will use their insurance to pay for contraception.  Conceivably (you should pardon the expression) their workforce is old enough, or male enough, that the issue might not arise at all.  All the ACA does is request the employer to provide insurance for the employee which might be used for that purpose.  The employer is also, presumably, providing that same employee with a paycheck that, in the absence of a contraceptive insurance mandate, she might use for the same purpose.  Wouldn’t the Hobby Lobby bear the same moral burden either way? And if so, can they require their employees to promise not to use their paychecks for that purpose?  Or just not hire any non-sterile women of childbearing age?  Or anybody who isn’t an observant conservative Catholic?  At what point does the Hobby Lobby’s religious freedom collide with the sexual, medical, or even  religious freedom of their employees? And what happens when it does?

 I am gritting my teeth while I wait for the Supremes to rule.  I will be equally perturbed if the body of law supporting the right to refuse military service for religious or ethical or moral reasons, formulated in the twentieth century, gets perverted to buttress the moral vanity of a corporation, or if it is forgotten entirely.  The two outcomes, at the moment, seem equally likely.

 Red Emma



One Response to “Conscientious Objection in the Hobby Lobby”

  1. Lynn Gazis-Sax (Sappho) Says:

    Wow, I never thought, when I made the categories, that someone would legitimately be able to put “Peace Testimony” and “Sexuality” on the same post.

    Seriously, I’m glad you wrote this. I’ve been trying to frame my thoughts for a post on this topic, and you did better than I could have.

    Rod Dreher has been arguing that liberals, having supported the Religious Freedom Restoration Act over the case of people who made religious use of peyote, now can only be inspired by spite when they have concerns about religious freedom arguments over workplace decisions involving sexual orientation or birth control. But, for me, the turning point was when I realized that the move for “conscience” exemptions for pharmacists from dispensing emergency birth control (and sometimes from refilling prescriptions for regular birth control) wasn’t about allowing people to follow their own odd beliefs about birth control when a woman could otherwise fill her prescription anyway (one pharmacy not covering emergency contraception in a town where another one that’s open just as long already dispenses it, or an employee in a mail order pharmacy being placed filling different prescriptions while someone else fills the birth control ones), but asking for their objection to trump everyone else’s freedoms, so that you could randomly show up at a pharmacy, maybe even after being raped, and discover that the pharmacist currently on duty would refuse your prescription, or you could show up at your regular pharmacy and discover that the pharmacist on duty wouldn’t fill your regular birth control prescription, or that your pharmacy had developed a conscience about it and would neither fill it or give you back the prescription so you could take it elsewhere. At some point, conscience exemptions have to be balanced against the limitations they impose on other people’s freedom.