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Separating the Sheep from the Goats

April 6, 2014

All the nations will be gathered before Him, and He will separate the people one from another as a shepherd separates the sheep from the goats. He will put the sheep on His right and the goats on His left.
– Matthew 25:31

The Supreme Court of the United States heard the oral arguments of Sebelius v. Hobby Lobby Stores, Inc. last Tuesday. The court case is the latest act in the War on Obamacare. This obsession to affect the execution and results of the Affordable Care Act, is a well-coordinated and financed effort. From the state houses and legislatures, U.S. Congress, courts and media, countless hours and dollars have been spent to defeat the law. I don’t have the time to research and tally, but consider these examples. Prior to the passage of ACA, the health insurance lobby and member companies took a public position that they supported reform, but they also separately funded the campaigns of those who were trying to defeat the bill with $102 million. The U.S. House of Representatives has voted 54 times to repeal or amend the law. Using Congressional Research Service figures about operating budgets provides an estimate of $1.9 million per day. On the (very conservative, I submit) assumption that preparing for and acting on each of these votes would consume the equivalent of a full day of the House’s resources, we’ve given them more than $100 million to make their point.

Hobby Lobby is in court because it objects to the portion of ACA that provides insurance beneficiaries with certain birth control methods. HL contends that this government mandate forces it to choose between following the company’s owners’ religious beliefs and paying the government punitive taxes. Paul Clement, a talented attorney who served as solicitor general under President George W. Bush, is representing HL. Clement is a familiar actor in the drive to upset the new law. He represented Florida in The United States Department of Health and Human Services, et al. v. Florida,  in which among other things, the SCOTUS ruled that the ACA’s plan to hold back funding from states that did not expand Medicaid was unconstitutional. Clement  has even represented a U.S. Senator who took issue with certain ACA subsidies and exemptions that were provided to the Senate staff. So, HL has the best man for the job. He’s a smart, skilled former government lawyer with a lot of experience on this issue and others before the highest court in the land. Plus, he seems to have a thing about the ACA. Indeed, he is an ideal lawyer for HL.

If Clement and his client had their way, the government would allow the company to pick and choose which portions of the ACA it wants to implement according to the owners’ religious beliefs. After all, HL is a privately held company, so the government can mind its own business, thank you very much.

This of course gets tricky. Where does the use of this tactic end?

“Your understanding of this law, your interpretation of it, would essentially subject the entire U.S. Code to the highest test in constitutional law, to a compelling interest standard. So another employer comes in and that employer says, I have a religious objection to sex discrimination laws; and then another employer comes in, I have a religious objection to minimum wage laws; and then another, family leave; and then another, child labor laws. And all of that is subject to the exact same test which you say is this unbelievably high test, the compelling interest standard with the least restrictive alternative.”
– Justice Elena Kagan

This is similar to the argument made in the majority opinion in the ruling on Employment Division, Department of Human Resources of Oregon v. Smith. Here, two native Americans claimed that they were not subject to the laws surrounding the use of peyote, a hallucinogenic drug, because using it was an integral part of their religious worship.

“The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind—ranging from compulsory military service to the payment of taxes to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races.”
– Justice Antonin Scalia

It seems to me that passing along this strict standard of judging a person’s religious sincerity to the courts and balancing it against the government’s compelling interest would be the last thing that the HL owners and their supporters would want. Clement would know better, of course. He is the expert. Perhaps with the Roberts court, they are willing to take the chance. In response to Justice Kagan’s statement of how the court’s ruling in his favor could go wrong, Clement referenced Justice Sandra Day O’Connor’s concurring opinion in Smith, telling Kagan that “…you’ve got to trust the courts; just because free exercise claims are being brought doesn’t mean that the courts can’s separate the sheep from the goats.” For his part, Justice Roberts doesn’t seem that concerned. During this week’s hearing, a discussion about how the courts would handle these matters that are relevant for religious people would be addressed with public companies, he told the Solicitor General Donald Verrilli, “…we’ll have to await another case when a large publicly traded corporation comes in and says, we have religious principles, the sort of situation, I don’t think, is going to happen.”

I don’t have any doubt about the sincerity of HL owners’ religious beliefs. I’ll take their word for it and observe the way they go about their lives and run their daily store operations. Nonetheless, some of this outrage doesn’t add up. As has been frequently reported, the two contraception drugs that they object to, Ella and Plan B, were once part of their health care plan’s formulary. It was only after they learned that these were required by the ACA that they removed them from the plan. We’ve also heard about the HL matching investments in the 401(k) plan that is sponsors for its employees. The 401(k) plan invests in mutual funds that include the stocks of the companies that manufacture Ella and Plan B. Of course, it’s very difficult to restrict the 401(k) plan’s investments. Difficult, but not impossible. Should HL wish to help its employees save for retirement and remain faithful to their owners’ religious beliefs, they could manage it.

It seems that the HL owners have led Christian lives and built a workday world around themselves to match their worldview, all the while with an understanding that there are other points of view in a cosmopolitan and democratic nation. Not everyone will agree with their beliefs and they have a record of respectful acceptance of others. They must know that it a wonderful thing that they can evangelize all they want without fear of interference from the government. It’s even better than that for them, since we have broad national policies that enhance the social and economic health of their chosen church and faith. Certainly they must recognize this and are grateful that this is their good fortune.


Sotomayer to Clement, “…you picked great plaintiffs…” A slip of the tongue, perhaps? I don’t think so. I think Clement indeed chooses his clients. Further, I suspect with a purpose in mind, a talented lawyer and established like him could find a client to make a case.

I’m not close enough to it to know. None of us are. But it almost seems as if this legal challenge is cooked up; that HL owners are being used by someone else to make a political gain. No matter how strongly the HL owners’ faith, this “taking it all the way to the Supreme Court” appears to be an effort for someone’s political gain. Just as Clement is the perfect attorney for HL, HL is the perfect client for Clement. It seems like the expert legal maneuvers are simply another technique to stall reform to a messy and rigged healthcare system that is designed to benefit some at the expense of others. Even the administration’s most vocal political opponents have advocated for meaningful reform in the past. The architecture of ACA closely resembles some of those policy recommendations, including clauses around mandatory and standardized coverage. But alas, the country is on hold while someone drags us into a “not invented here” mode of operation. But while the prospect of HL being bamboozled and coaxed by other interests may be a figment of a temporary fevered imagination, the risk of an unsatisfactory outcome remains the same.

All eyes will be on the Supremes this week. I want very badly for them to rule against the plaintiffs. I don’t look forward to every Tom, Dick and Harry (or Google, Apple and ExxonMobil) picking and choosing laws to obey depending on their religious principles. Anarchy – Poli. Sci. 101. As Justice Scalia wrote in Smith,

“The government’s ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, ‘cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development.’ To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is “compelling” — permitting him, by virtue of his beliefs, ‘to become a law unto himself,’ contradicts both constitutional tradition and common sense.”

So let the HL owners practice their faith as they have all these years, but is it not clear that this is a case that affects others more than themselves? It’s not only about birth control and about women’s rights to choose. It’s not only about their religious freedom. It’s not just about politics and power grabs in Washington D.C. A victory for HL sets social and legal precedent that will create gnarly situations that will further damage our democracy, not enhance it. With Citizens United and McCutcheon now the guidance big money in political campaigns, the last thing we need is yet another opening for companies to use religious principles to get their way. Where are you now, Sandra O.? We need you.

“I sort of thought the framers of the Constitution were talking about the rights of individuals, not corporate entities. So I’ve been pretty concerned about the whole approach.”
– Justice Sandra Day O’Connor on legal trends regarding money and politics

  1. Excellent … I’m so fatigued with the constant assault on the ACA, Reproductive Rights and Contraception. I very much hope the Supremes do the right thing (IMHO)
    Love that last quote from Sandra Day O’Connor.


  2. Thanks, Laurie. Me too. So much of the attack seems to motivated by politics without regard to the effect it has on us.


  3. Are we not allowed to discuss personal responsibility anymore? Can’t Hobby Lobby publicly affirm that they don’t support birth control while simultaneously expecting individuals to make their own choices from among various health care options?

    I support a lot of things that I don’t personally approve of, via my taxes. But resisting the particular line-items that don’t suit me would be taking it to an impractical level. I could resist, and try to make a point, like Hobby Lobby, but if I step back and look at the whole picture, my protests would just be silly. There is simply no other way to run a country than to make policy that does the most good for the greatest number of people. I believe that is what the ACA does.


  4. Crystal – I agree. When thinking of HL, the thought comes to mind, “mind your own business.” Rights of religious expression are meaningless if as a country, we are not free from the overreach of religion.


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