[Everything below is ranked, roughly, from what I take to be least important to what I take to be most important. So if this is too dang long for you, skip to the end. But really, the whole thing is brilliant, eloquent, and probably life-changing.]
I was so not going to do this. And I was mainly not going to do it for reasons of intellectual integrity: I haven't read the decision in the Hobby Lobby case carefully, and I haven't read the dissenting opinion at all. I'm willing to say publicly that--to the degree I understand it--I think SCOTUS got this right. It's at least possible, however, that I might change my mind, and even if I don't, I think it must be acknowledged that some of the salient questions are genuinely difficult ones; I don't find it at all obvious, for instance, that the law should treat corporations (even closely held corporations) as persons, nor do I find it obvious (because insurance payments are fungible) that AHCA imposes a substantial burden on employers who are required to pay for services they find objectionable.
So why weigh in at all? Well, while I don't take myself to be competent to weigh in on the subtleties of the decision, I am genuinely alarmed by the state of the discourse surrounding it. At first, I thought it was just the card-carrying Team Democrat folks in my Facebook feed who were generating an amount of noise out of proportion with their actual numbers. But then I made the mistake of listening to NPR's "On Point" [Aside: I like NPR a lot and generally find it to be as unbiased and trustworthy a news source as we have in America] as I was running errands this morning, and got the sense that some of the things which I was taking to be "fringe" views may be quite a bit more mainstream than I had hoped. And if I may be so bold, I think that my professional training and experience put me in a reasonably good position to assess that discourse. That is, even if I have no business weighing in on what people are talking about, I might have some business weighing in on how people are talking about what people are talking about. In that vein, I offer the following:
(1) ON RELIGIOUS FREEDOM
There's an ever-increasing tendency to understand religious freedom--a First Amendment right, you'll recall, which has typically been taken to be fundamental to our existence as a pluralistic society--as mere freedom of worship. That might sound like a merely terminological difference, but it's important to notice that the free exercise of religion is far more expansive than merely being permitted to gather in private with like-minded folks and sing the songs you happen to like. Now, like any other negative claim right, the right to free exercise of religion has to be balanced against the rights of other people. It does not, should not, and must not be understood as the freedom to do whatever you want to other people and then to be excused on the grounds that "it's my religion."
(1a) There's a surprising blind spot on the part of many left-of-center folks (including many self-described religious believers) who seem to think that religious belief and practice must be utterly private. The assumption seems to be that it's okay to have religious beliefs, but those beliefs must never, ever, in any way, shape, or form, impact the way you live in society, including the way you conduct business or how you think about social policy (unless those beliefs are already in conformity with what the law says, or with what the law is changed to say).
What this assumption fails to appreciate is that, for most of us who are serious religious believers--and there are still a few here and there!--obedience to God is understood as a holistic, life-shaping commitment. It is *impossible* for many devout believers to simply cut off their "religious life" from everything else they do.
[Aside: This is the part where people start complaining about what terrible things religious people have done, and about how Hobby Lobby is hypocritical because they invested in firms that profit from some of the very products they're unwilling to provide to their employees. On the first of these: the fact that some religious people are insincere or wicked is just totally irrelevant to this issue. There are a lot of very decent, very sincere religious people in the world, Christian and non-Christian alike, and the question of how their interests should be protected is what's relevant here. On the second point (Hobby Lobby invests in the products they don't like): I haven't read up on this. Assuming that it's true, I absolutely agree that it's hypocritical (if the Green family knew it), and that the Green family cannot be taken seriously if they don't immediately sell the stock in question. They should be ashamed. But... in defense of the Green family, they do run a retail business and yet choose not to open their stores on Sundays. This fact gives us all pretty good reason to hesitate before condemning them as money-grubbing hypocrites. More importantly, however, that fact too is irrelevant to the question of what the law should say. Now back to the main thing I was saying.]
And they shouldn't be asked to do so! This is for two reasons:
(1b) Because of the way in which religious belief often, and rightly, shapes a person's sense of self, we should support public policies that maximize individuals' freedom to live in accordance with their beliefs.
(1c) Sincere religious faith often pays dividends for society as a whole, including to the benefit of those who don't share it. Are "religious" people universally and unequivocally good citizens? No, of course not. Should every religious belief and practice be endorsed? No. Don't be silly. Life is complicated and the devil is in the details and blah blah blah. But look. If you take some of the secularists' words seriously; if you think that religion has no legitimate role to play in shaping how people conduct their lives in public; if you insist on a perfectly "naked" public square; if you go in any of these directions... then you are going to have a very difficult time endorsing either the abolitionist movement or the ministry of Dr. Martin Luther King, Jr. You are going to be forced to conclude that much of what Dr. King said in his speeches and much of what he wrote involved unconstitutional violations of the separation of church and state. And. That. Would. Be. Crazy.
Oh, speaking of crazy, here's the real reason I felt like I had to write this post.
(2) THE LEFT HAS GOT TO STOP WITH THE ORWELLIAN NEWSPEAK
No, seriously, you guys have got to stop this. And you intellectual types need to lead the way. I'm trying to do some of the work over on the cultural right: I'm exhorting folks in my tribe to think carefully, to pay attention to what's being claimed and what isn't, to interpret others' positions charitably, to look for common ground, etc., etc., etc. Can you help a fella out? We can work together, you know. It won't be easy. On every side of every issue, there are people who are going to demonize the people who disagree with them. And there are many, many people who are convinced that there is no such thing as a "common good;" they see American political life as a competition between groups whose interests are often incompatible, and the goal of politics not as the health of our society but as crushing defeats over those with whom they disagree and on whose throats they want to step. If that's you, then you can stop reading now. But if it's not, then please...
Stop pretending like words mean things they don't. Seriously: STOP IT. Are you worried about the *precedent* set by yesterday's ruling? That's fine. I get that. I think there are lots of interesting things to be said about it. Do you think it's crazy to think of paying for abortifacient drugs as a form of complicity in abortion? I get that, too. There's definitely room for debate there. Does it seem unjust that men have greater "reproductive freedom" than women? Again, I hear where you're coming from. I think we as a society need to keep wrestling with this, because equality between the sexes is a matter of genuine importance. And so on and so forth.
If employer X refuses to buy A for employee Y, X is not, not, NOT thereby "preventing" Y from having A.
If X has religious beliefs on the basis of which X refuses to buy A for Y, X is not--contrary to the very words used by the host of the NPR show I was listening to--"forcing employees to live in accordance with their employers' religious beliefs."
You should pause for a second and read that again. Think about it. Let it soak in. We live in a society where the host of a national radio show, on a network that is widely respected as a source for thoughtful, intelligent commentary, can speak of the refusal to pay for some kinds of birth control (4 out of 20!) as equivalent to forcing another person to live in accordance with one's religious beliefs. Friends, this is lunacy.
The basic point I'm making here should be obvious.
No, it *is* obvious.
It is painfully obvious.
It's a matter of basic English and rudimentary logic. This kind of thing has got to stop. Please. Anyone who says that Hobby Lobby is denying women access to birth control (and people really do say this! like, people who went to college! people who are serious presidential candidates!) is guilty of either extraordinary ignorance or willful dishonesty. Either way, such statements are harmful to our political discourse. Please stop saying such things, and please don't let others get away with saying them either.