The big news across America today is the final pre-summer decisions of a Supreme Court that has not been altogether on board with the cafeteria constitutionalism of the Obama Administration. So this morning was apparently a victory for religious liberty:
Obamacare Rebuffed By High Court In Contraception Ruling
Up to a point. Hobby Lobby will continue to pay for all its employees' contraception except for a trio of abortifacients - that's to say, "morning-after pills" that dispose of any long-term consequences from the night before. A month's worth of these pills costs nine bucks from Wal-Mart. In the old days, we used to add "or less than a daily paper or a cup of coffee". But you can't buy a paper or a cuppa joe for 30 cents anymore. So a month's supply of these pills for any young lady paying full freight is the cost of one-and-a-half venti lattes at a big-city Starbuck's.
That's what we're arguing about: who's going to pick up the one-and-a-half lattes.
It would, of course, be outrageous to expect the person using the pills to pay for them. So what to do?
The great organizing principle of 21st-century American life is that everything should be fiendishly complicated. If, say, an Italian wishes to take a leak, he strolls six feet across the corridor to the bathroom and unzips. To achieve the same end in America, a Keystone pipeline-long catheter has to be inserted snaking from his underwear out the front door, down the road to his employer's human resources department, on to the chief executive at head office, across town to the micturition management services company, over to the bodily fluids evacuation insurance provider, down the railroad track to the federal bureaucracy in Washington, before winding its way back to his place and the bathroom six feet from where he's sitting. With regard to bathroom breaks, I'm speaking metaphorically, but who knows for how long?
The robed regency of nine judges is silent on this third-fourth-fifth-sixth-seventh-party health-care provision system. In a sane world, the principal provider of health insurance would not be one's employer. But the government mandates that all but the smallest companies are obliged to be in the health-care business, and then further mandates what type of health care companies are obliged to provide. This is nuts. But, having already determined the burdens of Obamacare are "constitutional", America's ultimate court of appeal had nothing to say on the bigger picture, and ruled very narrowly. For "closely held" corporations who have religious and moral objections to providing abortifacients, the Supreme Court says you don't have to do so. Instead:
HHS has already devised and implemented a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all FDA-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage. The employees of these religious non-profit corporations still have access to insurance coverage without cost sharing for all FDA-approved contraceptives; and according to HHS, this system imposes no net economic burden on the insurance companies that are required to provide or secure the coverage.
Although HHS has made this system available to religious nonprofits that have religious objections to the contraceptive mandate, HHS has provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections.
So Hobby Lobby's employees will be able to get the same abortifacients via the same insurer, but without Hobby Lobby paying for it. On the other hand, the insurer isn't paying for it, because this arrangement "imposes no net economic burden" on the insurer.
So the morning-after gal isn't paying for the night before, her religious employer isn't paying for it, and their insurance company isn't paying for it. Yet somehow that nine bucks a month gets paid. How? Appellate lawyer Mark Arnold:
A meaningless decision. The less restrictive alternative that the majority settled on is a certification by Hobby Lobby that it opposes contraceptive coverage, after which the insurance company must provide that coverage for free. Meaning that the premium charged to Hobby Lobby will necessarily include the cost of the free contraception. All smoke and mirrors.
In other words, they just added another loop or two to the Keystone catheter.
I am by nature the kind of guy who sees the glass as four-ninths empty. The fact that only five justices could be found for as narrowly drawn a decision as this doesn't say anything good about where we're headed. America is one Supreme Court retirement away from a view of religious liberty more circumscribed than at any point in its history. As I wrote a couple of years ago:
Words matter, as then-senator Barack Obama informed us in 2008. And, as president, his choice of words has been revealing: He prefers, one notes, the formulation "freedom of worship" to "freedom of religion." Example: "We're a nation that guarantees the freedom to worship as one chooses." (The president after the Fort Hood murders in 2009.) Er, no, "we're a nation that guarantees" rather more than that. But Obama's rhetorical sleight prefigured Commissar Sebelius's edict, under which "religious liberty" â€” i.e., the freedom to decline to facilitate condom dispensing, sterilization, and pharmacological abortion â€” is confined to those institutions engaged in religious instruction for card-carrying believers.
This is a very Euro-secularist view of religion: It's tolerated as a private members' club for consenting adults. But don't confuse "freedom to worship" for an hour or so on Sunday morning with any kind of license to carry on the rest of the week. You can be a practicing Godomite just so long as you don't (per Mrs. Patrick Campbell) do it in the street and frighten the horses.
In Obama's view, "religion" is fine for a once-a-week hymn-sing with a couple of scripture readings but it cannot inform your life. Leave it in the umbrella stand by the front door as you head off to work on Monday morning. There is literally no point to "religion" under this shrunken definition, as the Europeans have begun to figure out. Eventually, even that Sunday-morning private members' club gets opened up to the Bureau of Compliance. Breaking news from our friends across the pond:
Denmark Forces Churches To Conduct Gay Marriages
It would be interesting to read the headline "Denmark Forces Mosques To Conduct Gay Marriages", but that's probably what it's going to take to bring a halt to the shriveling space for religion in the public sphere.
So no, I don't see this as a great victory for religious liberty - or, indeed, liberty at all. As I said here after last week's Supreme Court decisions:
It's striking to me that, even when the other branches of government "get tough" with this abusive President, they do so very tentatively.
And, of course, in political terms the Democrats have their talking-point: five old men have denied women their "reproductive health". They'll be running that into the ground from now to November.
There is no morning-after pill for the burdens of Obamacare and its assaults on core principles of liberty. Serious objectors will have to consider ways of breaking the law on a scale that renders it unenforceable. Obama seems to respond to that. At least on the southern border.
~It is worth remembering that elsewhere round the world issues of faith and identity do not come down to legalistic hair-splitting but are settled in blood:
Bodies Of Three Missing Israeli Teens Found Near Hebron
It is comforting for nice westerners to think that whichever Hamas-affiliated killers did this are nothing to do with us. But, in fact, the delegitimization of the Jewish state and of Jews more generally that is now routine among the political and intellectual elites of Europe, and on American campuses and in the Presbyterian Church, emboldens and licenses the slaughter.
Say a prayer for Naftali Frenkel, Gilad Shaar and Eyal Ylfrah, who were murdered because they were Jews, no more, no less.