13 April 2014

Frei ≠ Kostenlos

Before too long, the Supreme Court will issue an opinion in Hobby Lobby relating to exercise of religion. Unfortunately, the decision will inevitably be wrong, due to two layers of linguistic confusion on the issue.

The first, and most obvious, is the religion/person interaction. The First Amendment allows neither the establishment of religion, nor impediments to the free exercise of religion. But what is "religion" and, more to the point, which "persons" may exercise "religion"? It seems to me that the only reasonable definitions of both "religion" and "persons" — in Hobby Lobby, a close-hold corporation's unwillingness to pay for contraception for all of its female employees, as required by the Affordable Care Act — entirely exclude Hobby Lobby's position.1 If there is one thing that the artificial person known as a corporation cannot have, it is faith in a supernatural being or philosophy. Its shareholders may do so; its officers and directors may do so; but because the corporation is even less capable of "belief" than it is of being labelled as a "woman-owned" or "racial-minority-owned" entity, this shouldn't even be an issue. In this sense, religion is special: It is so special that it can be a consideration only for natural persons and organizations made up of natural persons specifically and exclusively for religious purposes. Once the profit motive (and related taxation and regulation and everything else) comes into play — and there's no question that Hobby Lobby is a profit-making enterprise, and was conceived for profit and not for religious exercise — the corporation must, of necessity, be an agnostic.

By itself, that first layer should get the entire dispute thrown out of court, with a resounding declaration that religion is not an excuse for violating otherwise-neutral law... and especially not when it is a mere pay-the-same-as-everyone-else-does law. That, however, is not going to happen; this Court is unwilling to imply at even the barest whisper that some litigants use religion as a pretext for warping law, for personal economic advantage, indeed even for corruption. That may not be the case with the principals of Hobby Lobby themselves — I don't know them personally — but it is sure as hell the case with a lot of their supporters.

The second layer of linguistic confusion comes from the word "free." In English — and particularly in American English — we use the same word for "unrestricted" as for "not having any economic cost." Hobby Lobby's advocates desperately want "free" to mean both at the same time, because that's the foundation of their position in this particular suit: Not only should they be allowed unrestricted exercise of their religion (that is, that they should not have to support a female employee's access to contraceptives), but there should be no economic consequences to that exercise (that is, that they should not have to pay for a female employee's access to contraceptives just as every other comparable corporation not sharing their beliefs must do). German distinguishes between frei and kostenlos in a way that I wish the First Amendment did, at least on this issue. The First Amendment must mean only the former, not the latter... and the Supreme Court's previous decisions on "taxpayer standing" concerning taxpayers who — usually for religious reasons — objected to their tax dollars going to military spending supports this interpretation. Because the First Amendment uses a word that has an ordinary English meaning, too many readers try to import all possible ordinary English meanings of that word into First Amendment jurisprudence, instead of admitting that the common usage of the word has changed over time. There just weren't a lot of "buy one, get one free" sales at eighteenth-century general stores... or advertising.

The "right" decision in Hobby Lobby would note that "free exercise" does not mean "free of cost," but "free of non-safety-related restrictions"... and would stop right there after noting the Hobby Lobby itself is not made unsafe by paying for its employees — many of whom do not share the religious beliefs of its insiders — to have certain healthcare in furtherance of their own, individual rights and personal safety. The "right" decision would not even wade into the quagmire of corporation-versus-individual rights, or the nature of what the Perfesser calls "reverse veil-piercing" in this context. It would, instead, note that this is a decision relating to something that this Court has already determined is primarily a tax issue, and therefore a corporation may not properly do more than lobby for an exception; since there's no exception in the law, the corporation is stuck. Just like religiously-owned corporations with pacificism as central tenets must continue to pay taxes that support the military.

  1. I'm also going to note that the nature of the particular dispute is, itself, sophistry. Not too long ago, an entire nation founded apartheid upon specific religious guidance. Parallel guidance had a strong influence on the inhumane racial environment in the former Confederate States, too... and too often continues to do so. Indeed, definitions of what constitutes "acceptable" religious belief and behavior continue to cause trouble throughout the nation; consider the problems raised by zoning ordinances excluding Santeria churches, by labelling laws intended to prevent fraudulent labels of "kosher" and "halal" on food, by child-"marrying"-and-raping cults.