Hobby Lobby ruling is vat of worms

By Benjamin van Loon
FFRF awarded Benjamin $500 for his essay.

The First Amendment recognizes freedom of speech, freedom of the press and freedom of religion. The amendment opens with the Establishment and Free Exercise Clauses that state, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.”

Thomas Jefferson summed up the clauses’ implication in his 1802 letter to the Danbury Baptist Association, that they erect “a wall of separation between Church & State.” On paper, the separation seems like it should work, but two centuries later, the 1791 amendment is still contentious.

Burwell v. Hobby Lobby originated in 2010 in reaction to the Affordable Care Act and its redefinition of employer-based health plans. Under the ACA, the Health Resources and Services Administration determined that FDA-approved contraceptives should be included in these health plans.

Big-box craft chain Hobby Lobby — owned by founder, billionaire and evangelical Christian David Green and his family — has 28,000 employees and objected to coverage for emergency and other contraception which the company has, in the tradition of corporate myopia, erroneously declared to be abortifacients.

This is less like a can and more like a vat of worms. How can a corporation have religious beliefs? Mark Achbar and Jennifer Abbott addressed the issue in their 2003 documentary “The Corporation,” which investigates corporate personhood through a DSM-IV lens. The movie concludes that corporations are largely psychopathic (socially inept, lacking empathy, deceitful, etc.).

This is not revelatory but it is provocative. We’re led to ask how corporations achieved their personhood. They can merge, acquiesce and sue, but can they go to church? Hobby Lobby cites the Religious Freedom Restoration Act, suggesting that the government has substantially burdened the company’s exercise of religion. The “win” in Burwell v. Hobby Lobby is a liberating benefit to corporations, which can leverage “religious” rationale for commercial gain and a detriment to the real persons affected by corporate decisions.

We must also consider how the case fallaciously conflates religious conviction with ethical opinion. Hobby Lobby’s argument reflects the Christian position about conception and contraceptives in general, where the logic is hermeneutically weak and the reasoning duplicitous.

If Burwell v. Hobby Lobby were truly about religious freedom, the $2.28 billion company would swallow the $100 a month tax for failing to meet HRSA requirements and we’d hear no more of it. But instead, federal notions of religious liberty get dragged into the muck as Jefferson’s wall gets ever more porous.

Finally, in typical psychopathological fashion, Hobby Lobby fails to recognize that what it does in pursuit of its religious liberty doubles as a religious (ethical and ideological) imposition, beginning with its 28,000 employees and extending to the rest of the conscious public.

If Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, it should recognize that religion ends where it begins: in the head, the only place one can be truly free.

Benjamin van Loon, 29, Chicago, is pursuing a master’s in communication and media at Northeastern Illinois University after graduating magna cum laude from North Park University with degrees in both philosophy and English.

Corporate personhood’s oppression by religion

By Zachary Tuck
FFRF awarded Zachary $750 for his essay.

The First Amendment states in part, “Congress shall make no law respecting an establishment of religion.” The amendment expressed the Enlightenment-era philosophy of reason espoused by many of the Constitution’s framers. The Establishment Clause also appealed to people who had faced religious persecution in Europe. The ongoing clash between science and religion and the growth of corporate personhood complicate the issue of religious freedom in a way not anticipated 200 years ago. Corporate religious expression has devastating consequences for women, LGBTQ persons and other minorities. The concomitant erosion of the separation of church and state lets corporations legislate from the board room, circumventing legal precedent to create biased hiring practices and control their employees’ and customers’ access to health, safety and freedom from persecution under the guise of religious expression. The exercise of free speech has been the battleground for corporate personhood. Corporations have a vested interest in removing any limits to political donations, which gives them greater clout than any human person, paving the way for decisions like Citizens United and Burwell v. Hobby Lobby.

The social movements of the 20th century, most notably the civil rights and women’s rights movements, created a fairer and broader definition of what it is to be human. One such source of power is the idea of bodily autonomy, which was advanced by the landmark 1973 Roe v. Wade decision. Burwell v. Hobby Lobby carries with it the implication that a corporation can use a religion to make a medical definition, which thus becomes not only a public health concern, but a threat to women’s rights. In “The Hobby Lobby Decision: A Summary & Explanation,” the blogger known as Carmen breaks down one of the most insidious aspects of the majority decision by exploring a quote from Justice Samuel Alito: “The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients.”

Note how carefully Alito words it: “according to their religious beliefs.” He had to do so because the four contraceptives at issue (Mirena, Paragard, Plan B and Ella) are not, in fact, abortifacients according to the FDA. This is really crucial. The court majority wrongly allowed Hobby Lobby to define what causes an abortion. The court is not solely culpable in this, given that the Religious Freedom Restoration Act, passed by Congress, mandates additional safeguards against laws placing an alleged undue burden on the expression of religion, effectively paving the way for the Hobby Lobby case and others like it.

The 21st century has also witnessed the growth of the LGBTQ rights movement, which faces strong religious opposition. Michelle Chen at The Nation has reported on Hobby Lobby’s unwillingness to let a transgender employee of 16 years use her store’s bathroom, despite having legally transitioned. George Fox University, a Christian university in Oregon, applied for and was granted a religious exemption to Title IX requirements to provide appropriate accommodations for one of its transgender students. As the student himself points out in a report by Daniel Borgen:

“I deserve to be treated like the other men on campus. Apparently, the university disagrees, as they have made clear by forcing me to live off-campus. The university is operating under the doctrine of ‘separate but equal,’ and the religious exemption they received now gives the government’s stamp of approval to what they are doing. My own tax dollars will fund the university’s discrimination against me. I don’t understand it and I don’t think it is fair.”

The Supreme Court and the prevailing political climate are strongly biased toward a very loose interpretation of the free exercise of religion. Each such law passed nationally or locally and supported judicially threatens the Establishment Clause — in word and spirit — and the freedom and safety of individuals and groups. Those of us who fear the imposition of religion, or impositions in the guise of religion, must fight the symptoms of this problem and face up to the problem itself: That no freedom is safe when corporate interests erode representative government.

Zachary Tuck, 30, Austin, Texas, is a student in the writing and literature program at California College of the Arts in the San Francisco area, working toward a bachelor’s degree.

Disquieting decision: Burwell v. Hobby Lobby

FFRF awarded Justin $1,000 for his essay.

By Justin Clark

The Supreme Court made a decision on June 30 that will be remembered for its uneven handling of justice and as a serious challenge to the secular institutions that have sustained the U.S. for over 230 years: Burwell v. Hobby Lobby Stores Inc. For-profit corporations now have a “religious privilege” to not conform to the contraceptive coverage mandate as outlined in the Affordable Care Act. For the first time, personal religious rights have been conferred on for-profit corporations. Owners of “closely held” companies can impose their religious beliefs on their employees. As New York Times reporter Adam Liptak noted, the decision has “opened the door to many challenges from corporations over laws that they claim violate their religious liberty.” That understates the case. Over 90% of all U.S. businesses are “closely held,” which means that while the majority opinion sees this as a narrow ruling, it actually applies the challenges to the ACA to corporate law as a whole. In effect, a private company can now challenge almost any law on “religious liberty” grounds. This terrible decision is not at all what the framers envisioned with the Establishment Clause. The decision stems from the 1993 Religious Freedom Restoration Act, which, in the wake of the 2010 Citizens United decision, has been appropriated to serve the ends of religious business owners who run entities such as Hobby Lobby. Equally troubling is that at no time in the majority opinion does Justice Samuel Alito even remotely define what “deeply held religious beliefs” are or how they allow corporations to discriminate against workers. He only intimates that “it is not for the Court to say that the religious beliefs of the plaintiffs are mistaken or unreasonable.” While the explicit remark of the majority is certainly logical, based on the Establishment Clause, it is the implicit meaning that is deeply unsettling. The court has indirectly decided that the religious beliefs of the majority shareholders of a company trump employees’ rights. Picking and choosing who’s burdened or helped by RFRA sets an awful precedent, and Justice Ruth Bader Ginsburg’s dissent elucidates this beautifully:

No doubt the Greens . . . and all who share their beliefs may decline to acquire for themselves the contraceptives in question. But that choice may not be imposed on employees who hold other beliefs. Working for Hobby Lobby or Conestoga, in other words, should not deprive employees of the preventive care available to workers at the shop next door, at least in the absence of directions from the Legislature or Administration to do so.

That outlines perfectly the problematic aspect of this decision. The Establishment Clause mandates strict neutrality in religious matters, but because of the ruling’s broadening of RFRA, the government is now effectively picking winners and losers based on “deeply held religious beliefs.” This is corporate encroachment on individual liberties and protections, done in the name of religious liberty. It opens the floodgates for cases all over the country.

Secularism requires a position of neutrality, because the complications of defining a deeply held religious belief are astounding. RFRA should be amended or repealed altogether. Hobby Lobby and Conestoga Wood Specialties should not have even been allowed to pursue a claim against forms of contraception in the first place. Calling contraception such as intrauterine devices the moral equivalent of abortion is not a position that the Supreme Court should decide, but it has done so at the expense of individual rights. This decision is dangerous, and future cases will make it only more so.

Justin Clark, 24, Peru, Ind., is pursing a master’s in public history at Indiana University-Purdue University-Indianapolis. He previously earned a bachelor’s in history/political science with a minor in philosophy from Indiana University-Kokomo.

SCOTUS: All freedom not created equal

By Kat Heiden
FFRF awarded Kat $2,000 for her essay.

The New York Times headline sums it up nicely: “Supreme Court Rejects Contraceptive Mandate for Some Corporations.” Within this straightforward statement lies an important key word: “Some” suggests that the court’s decision applies to certain companies with certain characteristics.

In this case that defining characteristic is the business owners’ religious beliefs. The court’s decision ensures that these individuals’ religious preferences are maintained. In doing so, it violates the freedom of countless female employees by preventing them from accessing the contraception that, per the Affordable Care Act, they have a legal right to obtain.
The Burwell v. Hobby Lobby decision suggests that religious freedom is somehow more valuable than workers’ freedom to make decisions about their own health and futures. That alone is a fatal flaw in the decision, but there are several others. In a country where we pride ourselves on “liberty and justice for all,” the decision applies that liberty selectively, with religious business owners as its “chosen” people.

If religious employers refuse to include contraception as part of employee health plans, many women can no longer make a choice about whether or not to obtain it. They are stripped of this freedom because without insurance, contraception can be prohibitively expensive. For example, according to Planned Parenthood, an intrauterine device (one of the most effective forms of birth control) can cost $500 to $900 if paid for entirely out of pocket. For a woman making minimum wage, as many workers at retail stores such as Hobby Lobby earn, this could mean nearly a month’s wages.

A woman’s choice to obtain birth control does not infringe on anyone else’s freedom. No one will be forced to use birth control. Before, during and after the woman’s choice, the freedom to practice religion will remain intact. Disturbingly, the decision suggests that the imposition of one’s religious beliefs on others is a freedom to be protected. Burwell v. Hobby Lobby not only applies the concept of freedom unequally, it relies heavily on the idea of corporate personhood to underscore its religious favoritism. As Justice Ruth Ginsburg noted in her dissent, “the court’s expansive notion of corporate personhood invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faiths.”

The majority opinion justifies corporate personhood by stating:

Congress provided protection for people like the Hahns and Greens by employing a familiar legal fiction: It included corporations within RFRA’s definition of “persons.” But it is important to keep in mind that the purpose of this fiction is to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people.

The above passage shows selective freedom at work. The majority defines “people” as shareholders, officers and employees and justifies corporate personhood as a way to protect those people’s rights. Yet the employee’s right to contraception is denied. By treating employers differently from employees, the court adheres to only a select portion of its own corporate personhood definition. The Supreme Court is a public body whose purpose is to better define, interpret and apply law in service of all Americans. It cannot select which Americans it serves. In principle, the court makes our country freer by ensuring that all laws are just. Burwell v. Hobby Lobby does not strike down an unjust law or create a new one. It simply chooses the application of one existing law over another. The Religious Freedom Restoration Act is favored over the Affordable Care Act. In a more egregious misappropriation of the court’s power to apply the law, RFRA is also essentially chosen over the First Amendment’s Free Exercise Clause. Justice Ginsburg speaks to this point in her dissent:

The Court does not pretend that the First Amendment’s Free Exercise Clause demands religion-based accommodations so extreme, for our decisions leave no doubt on that score. Instead, the Court holds that Congress, in the Religious Freedom Restoration Act of 1993, dictated the extraordinary religion-based exemptions [to the Free Exercise Clause] today’s decision endorses.

Decisions like Burwell v. Hobby Lobby favor some Americans’ freedoms over others, which is extremely problematic. Freedom is the core belief that unites our United States, and it is too precious to be dispensed unevenly, especially by the highest court in the land.

Kat Heiden, 29, Sherman Oaks, Calif., is pursuing an M.A. in communications and leadership from Gonzaga University in Spokane, Wash. She previously earned a B.A. in screenwriting from Chapman University in Orange, Calif.

Their ‘religious liberty’ infringes on us

By Alex Flitter
FFRF awarded Alex $3,000 for his first-place essay.

I got my first job when I was 13, a camp counselor job, looking after children not much younger than me for far below minimum wage. I thought I had a solid understanding of the employer-employee relationship.

Employees are hired to fulfill tasks that the employer needs completed. In return, the employee receives pay and possibly benefits. That’s where I thought the relationship ended. But since then, a transformation has occurred involving “religious liberty.” What used to mean the right to believe or not to believe in any religion you choose now appears to mean the right to impose what you believe on individuals over whom you have power.

Despite the claim that this is a Christian nation by partisan historians who believe the founders abhorred state/church separation, the Establishment Clause is clear. It prohibits an official state religion, including favoring one religion over others or supporting religion over irreligion. It’s a clear indication of how important religious neutrality was to the founders.

How did we get from the Establishment Clause to the Religious Freedom Restoration Act? In 1990, the Supreme Court ruled in Employment Division v. Smith, a case in which two Native Americans in Oregon were fired after consuming peyote, ostensibly for religious reasons. After the court validated the firings, Congress passed RFRA in 1993.

It states that the government can’t “substantially burden religious exercise without compelling justification.” It notes that it can burden religious exercise if it is done to further a “compelling interest” and is done using “the least restrictive means.” This history and legislation came to a head in the recent Supreme Court case Burwell v. Hobby Lobby.

Hobby Lobby and Conestoga Wood Specialties sought an exemption from the Affordable Care Act’s mandate that health plans cover all birth control methods approved by the Food and Drug Administration, citing the owners’ religious beliefs and RFRA. The court in a 5-4 decision found that closely held corporations could withhold benefits from employees due to religious beliefs.
Justice Samuel Alito wrote in the majority opinion that the contraceptive mandate was a “substantial burden” to the owners. He interpreted RFRA to pertain to “humans who own and control corporations,” despite the fact that nothing in the Act indicates that it was ever supposed to facilitate the imposition of one’s beliefs on others.

I keep trying to get into the mind of a religious multimillionaire, to feel the “great burden” he’s supposedly feeling. I don’t doubt the sincerity, but the burden is nonexistent, and I can only conclude that these owners are simply trying to impose their beliefs on as many people as they can.

They believe that contraception, including the morning-after pill, is equivalent to abortion (physiology disagrees). Their argument is that providing this benefit substantially burdens their religious exercise without compelling justification, to paraphrase RFRA.

Except providing full health insurance coverage is not burdening them. They can still pray as they choose and abstain from contraception if they morally disagree with it. They don’t even have to offer health plans to their employees, but could instead pay a tax. The most important point is that whether or not a woman chooses to use contraception in no way hinders the employer’s ability to practice their religion. The only hindrance is to a woman’s right to reproductive freedom.

There could be more of the same on the way. With President Obama recently announcing an executive order that bans federal contractors from discriminating against gay people in the hiring process, 14 faith leaders urged Obama in a letter to exempt religious groups. These leaders, some of whom have spiritually advised Obama, cited the need to respect different opinions on sexuality and claimed that the social services they provide will suffer without an exemption.

But of course, this had nothing to do with social services. This was a blatant case of people in a position of power desperately trying to impose their beliefs on the government and the American people. Their religion dictates that homosexuality is a sin, so they asked the president to impose their beliefs and allow workplace discrimination to continue on our dime.

As I continue my education in hopes of one day being employed, I wonder what my future employer will ask of me in the name of his or her religion. What if my employers are devout Christian Scientists and I get diagnosed with cancer? Will I be forced to pay for chemotherapy because my employer genuinely believes that relying on modern medicine instead of prayer is a sin?

With the Supreme Court’s Hobby Lobby decision and the pervasiveness of this new form of “religious liberty,” I can only guess whose beliefs will be dictating what parts of my life.

Alex Flitter, 25, Cherry Hill N.J., graduated magna cum laude from Rutgers University in 2012 with a bachelor’s in psychology and is pursuing a master’s in psychology at Rutgers.

Name: Sally Dean Mitchell.

Where I was born and live: Fayetteville, Tenn., 1940. I’ve lived in Atlanta since since 1970.

Family: Married happily to Harold Mann, another longtime FFRF member. He is 86 and has a terrific collection of humanist books.

Education: B.S. and M.A. in education from Peabody Teachers College, Nashville; graduate work at Columbia University, New York City.

Occupation: Teacher in public and private schools from 3-year-olds to college student. In the 1960s, I taught for seven years at Punahou School in Honolulu (President Obama was a 10-year-old there two years after I left in 1969). In the mid-’80s, I owned and directed my own preschool called Children First. I trained teachers for Head Start. Since 1997, I’ve taught piano, drawing and sewing in my home studio.

How I got where I am today: My primary family believed strongly in education, which set my destiny, I suppose. I have lots of friends and mentors who have influenced me.

Where I’m headed: Continuing to love life, learning to draw and paint better, to be a more effective teacher and more tolerant person.

Person in history I admire: Ric Masten, deceased, American humanist poet, musician, philosopher.

A quotation I like: “Variety’s the very spice of life.” (British poet William Cowper) These are a few of my favorite things: Dogs, wolves, books, fabric (I have a huge stash for my art quilts), drawing animals (including a cardinal for FFRF’s newest winter solstice card).
Pet peeves: Being called a guy, as in “you guys.”

My doubts about religion started: In high school, studying Latin and then Greek and Roman mythology. Those god-to-mortal matings!

Before I die: I’d like to share more of my art and love of life.

Ways I promote freethought: Since I rely on students and their parents for my career, I have to be cautious being outspoken as a humanist, although in my adult groups (not income-related), I am “coming out.” Harold and I have loved attending several FFRF and humanist national and regional conventions.

I wish you had asked me: How full my life is. Very! I’m proud of teaching children since 1962, being elected Teacher of the Year at a large private school, buying a home as a single person in the mid-1970s, international travel (including two months’ independent travel across Europe at age 49), editing a 300-page Unitarian Universalist cookbook, having three solo shows of my art quilts, directing/producing two different programs of Edgar Lee Masters’ “Spoon River Anthology” at UU services, writing and directing a service about poet Ric Masten (with a cast of 23) and having my artwork on an FFRF solstice card!

Name: Rebecca Markert.

Where and when I was born: Green Bay, Wis., 1976.

Education: B.A. in German, international relations and political science from the University of Wisconsin-Madison (1998); J.D. from Roger Williams University School of Law, Bristol, R.I., (2008).

Family: I live in Verona (just outside of Madison) with my husband, Mike, and our two children, Dexter, 3, and Audrey, 1.
How I came to work at FFRF: By chance. I was graduating from law school and looking to live in Madison and came across a job posting on a legal jobs board. I thought it would perfectly fit my love for constitutional law, separation of state and church and the ability to work on federal issues.

What I do here: A lot. I’m the senior staff attorney, so in addition to state/church complaints (for issues like crosses on government property, mayoral prayer breakfasts, Good Friday closings, electioneering by churches and religious groups, religion in public schools and holiday displays for the 1st, 2nd and 6th federal appellate circuits), I manage the legal department, assign projects, train attorneys and hire interns and clerks. I put together all the administrative policies and protocols to make FFRF’s legal team work more cohesively and efficiently.

What I like best about it: Working in constitutional law. There are not a lot of lawyers who ever get to work in this area and I get to do it full time. I also love working with FFRF members and seeing how my work directly effects change (hopefully for the better). And the tea. FFRF has some amazing tea.

What sucks about it: Victories that look like losses. My first case involved a nativity scene on the courthouse lawn in 2009 in Manitowoc County, Wis. We were thrown out of court before reaching the merits of the case, but the nativity scene never returned to the courthouse again. During litigation, a church offered to place the crèche on its lawn, where it’s been on display ever since. Victories like that don’t make the news!

I spend a lot of time thinking about: How wonderful life is now that Dexter and Audrey are in the world. And how I’m never going to have the time to see everything in my Netflix queue.

I spend little if any time thinking about: This was a hard question to answer, but NASCAR and soccer come to mind.
My religious upbringing was: Roman Catholic.

My doubts about religion started: I don’t remember an exact time or event, I’ve always been skeptical. My parents never discouraged questioning, or critical thinking for that matter.

Things I like: Hugs from my kids and hearing them laugh, the Green Bay Packers, watching baseball, summers in Madison, the Fourth of July; the National Mall in D.C., going to movies at the theater, Spotted Cow beer from New Glarus Brewing, traveling and Diet Coke. Things I smite: The death penalty, concealed carry and stand your ground laws, the lack of high-speed rail running through Madison, misusing the apostrophe and anything requiring audience participation.

In my golden years: I’ll hopefully be debt-free from my student loans and be able to be a snowbird, spending summers in Madison and winters in Arizona or North Carolina.