Hobby Lobby – Supremely disturbing, or simply right?

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Editor’s Note: In light of our congresswoman’s latest cosponsored bill we felt this op ed is most timely

by Phil Erwin

In an Op-Ed appearing in the LA Times (“The broad reach of the narrow Hobby Lobby ruling”, June 30), Erwin Chemerinsky complains that “The Supreme Court’s decision striking down the contraceptive mandate for family-owned businesses seems narrow, but its implications are broad and disturbing.”

What I find disturbing is Chemerinsky’s inability (or is it the unwillingness of a  “respected” left-wing lawyer?) to accurately describe what the Court’s ruling actually does.  He states that the Supreme Court “…held that it violated the federal Religious Freedom Restoration Act [RFRA]  to require that a family-owned business… include contraceptive coverage for women in the insurance it provides its employees.”

That is simply wrong.  The Court did not strike down a legislated mandate.  The Court simply decided that the RFRA protects the owners of such companies from being forced to violate their religious beliefs in order to comply with the requirements of federal law (in this case, Obamacare), if other means of accomplishing what those requirements are designed to accomplish are available.  That is far more circumspect than Chemerinsky implies.

Stated as Chemerinsky does, it seems as if the Court had explicitly and completely exempted family businesses from a provision of Obamacare.  But the Court did not say, “You can’t require…”  It said, “You can’t step on religious liberty if there’s a less injurious way to require…” 

Erwin Chemerinsky

Next he laments that the Court held for the first time that a for-profit corporation can claim to have religious beliefs, complaining, “But a fictional entity [a corporation] cannot have a religious conscience or religious beliefs.”   Dumb point, even for a lawyer.  The people who own those corporations are certainly entitled to have religious beliefs and moral conscience.   The Court simply recognized that a family does not automatically give up those beliefs when they start a business.  As the popular “Duck Dynasty” shows, they bring their own morality, beliefs, sensibilities and habits to the workplace every day, as is their right under the First Amendment.   Publicly-held corporations, on the other hand, have thousands to millions of owners (stockholders.)  For such corporations, there is no concept of a collective religious belief.  Equating the two types of organizations is either a failure to see the fundamental difference, or (for a lawyer) a deliberate obscuring of the legalities involved.

Since Chemerinsky is the Dean of the UC Irvine School of Law, one would think he could grasp the difference.

But that’s the problem with The Law, isn’t it?  It isn’t exactly a stone-engraved rulebook.  It’s just a bunch of words that people interpret in whatever way seems good to them.  That’s why the Supreme Court’s rulings, vaunted and cherished and nation-changing as they can be, are called “legal opinions.”  It’s just nine cherry-picked people like Chemerinsky making believe they know What’s True, when all they’re doing is agreeing on their own biased guesses.  “I guess that’s what the Constitution means” doesn’t sound quite as important as “The Court finds that …”

Hobby Lobby owner David Green

What is lost in all the brouhaha surrounding the Hobby Lobby case is that it is at bottom about a requirement laid down by the Department of Health and Human Services in its interpretation of what the Affordable Care Act allows.  The requirement is not even in the Act itself.  It wasn’t voted on by 535 members of Congress.  It wasn’t even voted on by the 60 Democrat Senators who sneaked this monstrosity by the American people in the dead of night.  It was instituted by HHS, perhaps by only a single person at HHS.   Somehow, HHS decided that all medical insurance in the US must include twenty forms of contraception in order to pass muster (be legal.)  Those twenty forms are all designed to do the same thing, albeit in different ways.  The family that owns Hobby Lobby simply said, “Hey… Four of those twenty types of contraception actually induce abortion, something our religion does not allow.  Therefore we cannot in good conscience provide them.  We will, however, provide all the other 16 types.”

Not exactly as profound an act of civil disobedience as some would have you believe, is it?  Not exactly the outrageous War on Women’s Reproductive Rights that some insist it is.

Just a simple case of a family saying, “Sorry, but we cannot be involved in providing the means of abortion, because our religion forbids it.”

Seen this way, one has to ask:   Is it really so wrong that the Supreme Court decided to let the religious beliefs of a family trump the arbitrary judgment of a few (or perhaps only one) persons at HHS?  Isn’t the fundamental purpose of the Supreme Court to uphold the precepts of the Constitution in the face of legislation which challenges those precepts?  Doesn’t the first Amendment in the Bill of Rights guarantee that the “free exercise of religion” shall not be abridged by The Law?

Again: Chemerinsky should know better.

And so should the LA Times.

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Phil Erwin is an author and IT administrator living in Newbury Park. 

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