I am puzzled by the selective tolerance of secular liberals. These liberals are prepared to protect speech involving depictions of animal cruelty, gruesomely violent video games sold to children, and the intentional infliction of emotional distress at military funerals. They would also agree that the state should not compel people to violate their conscience without substantial justification.
Although the Court’s decision in Hobby Lobby makes clear that none of the involved employees would be denied access to insurance coverage for contraceptives, most secular liberals would deny the freedom of religion claim. I respectfully disagree with one of their main reasons and strongly disagree with another.
I understand the argument that a corporation is not a person. A corporation has no conscience. On the other hand, religious organizations including corporations have freedom of religion rights. The question is whether a for-profit corporation (which liberals typically want to engage in some social justice work) should have freedom of religion rights when all of the owners object to an activity on the basis of conscience. I think to deny the freedom of religion right on the ground that the business is a corporation rather than a partnership elevates form over substance. Moreover, I do not see how the recognition of the possibility of rights in this context opens a door for large corporations. The need for owner unanimity (which I would impose) forecloses that possibility. I do not read the Court’s opinion as contemplating majority rule in the case of for-profit corporations.
The argument that I do not respect is the claim that the law here does not impose a substantial burden. Everyone on the Court agreed that the owners of Hobby Lobby are sincere. I am not sure whether it was part of the record that the Hobby Lobby’s 401 (k) plan has $73 million invested in mutual funds that invest in the very contraceptives to which they morally object! See here. I would like to hear an explanation of why the owners are morally precluded from offering insurance that includes certain contraceptives, but not precluded through their investments from making money off the sale of those contraceptives. I would be on a higher horse regarding this point if I were not an investor in index funds which must include however indirectly many loathsome companies and products.
I also worry that the sincerity of many on the right is politically corrupted. I think the hatred for Obama has helped fuel the religious objections which does not mean that the objectors are insincere. It does mean that many objectors got to these views by a corrupt process.
But the question whether a burden is substantial does not get started without sincerity and everyone on the Court conceded sincerity. So let us assume the owners’ sincerity. How does one support the view that the burden on the owners is not substantial? In the end, the argument in my view ultimately rests on a simple disagreement with the owners’ views. Of course, it is easy to disagree. The owners in the end are being forced by the government to make funds available in the form of insurance for medical care including contraceptives. The contraceptives at issue would be used if, but only if, women make the choice to use the particular contraceptives to which the owners object. Making money available for immoral purposes is a part of our daily tax life. To conclude that obeying this government regulation is foreclosed as a matter of conscience is morally precious to say the least. And the argument that notifying the insurance company of the moral objection is also morally foreclosed strikes me as what Catholics ordinarily characterize as an excessively scrupulous conscience.
My point, however, is that even if the moral claim is crazy, it is still a substantial burden to force someone to engage in conduct that violates their conscience. It is not up to government to officially declare that a religious objection is a false objection. Please understand. I am not saying that freedom of conscience should always prevail. Freedom of conscience should give way in the face of a significant interest in many cases. If women, for example, would have been denied access to contraceptives (the ones at issue would cost a month’s pay of a Hobby Lobby worker), that interest in my view should have overridden the freedom of conscience claim. But that was not the case here.
So I am left to wonder. Why protect those who traffic in depictions of the abuse of animals and the like, but not protect the conscience of conservative Christians?