The Real Issue with the Hobby Lobby Decision

As usual details get in the way. We get mixed up on the highly visible and miss out on the crux of the matter.

Reading Facebook and many other first reaction posts to the recent Supreme Court Hobby Lobby decision you would think that the decision was about abortion. Many people on the pro-Hobby Lobby side made the very good breakdown that Hobby Lobby was not, for whatever reasons, NOT unwilling to pay for birth control, per se. It was not wanting to support certain contraceptive methods that many feel are abortion-related. So, in essence, that makes it sound like abortion is the issue.

On the other side many took issue with the supposed right of a company to a) be treated like a person with freedom of religion rights and/or b) have the right to make medical decisions based on these religious freedoms for others, specifically, women.

These, too have valid points.

But lost in the abortion/contraceptive frenzy was perhaps the most dangerous part of the decision. It is one of basing many kinds of decisions on religious grounds and whether these are good things. The list of "what-ifs" and hypothetical situations could fill up many blog posts. Does this mean, for example:

• Now Christian Scientist parents can legally refuse, on religious grounds, medical treatment for their children, even if it means saving their lives.
• Now the right of religious parents to refuse vaccinations for their children and the public schools may not be able to keep those children from attending.
• And of course, now, small, closely-held family-owned companies can refuse to pay for vaccinations or even medical treatment itself, on sincere religiously held beliefs.

I will admit that I raise these without deeply studying the decision and its broad and narrow interpretations. They are simply the places we might find ourselves on an always slippery slope.

I also will readily admit that there are many slippery slopes on both sides of the argument. That is the problem with any such controversial decision. If there were not a myriad of possible dangers the decisions wouldn't be controversial. The question underlying some of this is, as I discussed a few weeks ago, the issue of conscientious objection. In this case, objecting to being required to do something that goes against your principles.

I continue to be a supporter of the ideal and philosophy of conscientious objection. But, there may be times when

• saving or promoting life legally trumps such conscientious objection or
• you must be willing to pay the consequences if such objection is not upheld.

There is also the other issue- having a corporation, even a closely-held, family-owned corporation- be able to impose a religious belief on its employees. Sure there are extremes that are always possible- making an employee attend a church or prayer meeting or something clearly coercive. While someone may try that (there are enough kooks in the world!) it won't go very far. (I hope.)

Add to that what amounts to the personification of organizations that has been going on for a period of time. Is it really true that corporations have the same rights as people? Is it really the case that corporations can be treated like individuals? That makes no sense to me. Even with a closely held company like Hobby Lobby it is not- and cannot be held in many ways to the same standards as we hold individuals. Yet they have increasingly been getting the same rights.

Finally, and here for me may be the most blinded-by-privilege understanding:

Would we agree with this decision if it had been brought by a Muslim-owned firm?

Many would be screaming persecution and prejudice at a moment's notice. In spite of what some may believe, the freedom of religion DOES apply to Muslims and Jews, Buddhists and Hindus.

Back when the Supreme Court outlawed sanctioned prayer in the public schools, I believe it was someone like Martin Marty, professor and wise man of the history of religion in America, who wondered aloud what might happen if a Christian child living in an area where some non-traditional religion was in political control, were forced to pray a different kind of prayer? "Whose prayer?" was the question he asked.

In any case, I am not attempting to answer these questions. They are simply a few of the thoughts that the Hobby Lobby case brought to mind. One of the real difficulties of freedom of religion (and religious conscience) is that we all have a different interpretation of what that might mean. As long as the decision is one that agrees with OUR beliefs, we support it. But religious conscience is tricky- since it is based on "theology" of some kind that is, believe it or not, ever changing.

Conscience- or Discrimination?

Back in the 60s (and before) there was this moral position about war that was called "Conscientious Objection." You had to prove to your local draft board that you were opposed to war- and that being drafted and going to war was against your faith and belief. It became quite contentious in many places. Some draft boards were notorious for never granting CO status to anyone but those who were from the traditional "peace churches:" Quaker, Mennonite, Brethren, etc. Other draft boards would take the position that someone who went to all the trouble to put together the application probably was being sincere. There were all the positions in-between that caused much anguish and tension within communities and families.

This was of course the Vietnam War era and the thinking was that they didn't want to give CO status to someone who was just out to save his own butt in that particular war. If you were opposed to ALL wars and wouldn't have fought in other wars either, then you were more likely to be deemed CO. Otherwise you found yourself with a difficult dilemma. What if you didn't get your draft board to grant you CO status so you could do alternative service in a hospital or other such institution for two years? What if you ended up getting drafted and ordered to report for your physical or, if passing that, your induction?

Well, you had several choices. First, you could simply follow the law and your notice and go into the Army if drafted. Second, you could enlist in one of the military branches before being drafted and try to get something that would fit your conscience. Third, you could refuse, get arrested and sent to prison for several years. Or, fourth, you could leave the country and become an ex-pat in Canada. There were people who chose from this list and followed their conscience. Some went into the service, voluntarily or not, because they didn't want to go to jail or leave the country. Others who didn't want jail went to Canada. Needless to say there was a lot of soul-searching by a lot of young men in that era. The stakes for any individual were of course quite high. To become a felon, refugee in a foreign country, or move from your principles and possibly be killed in war- none of those was particularly enticing. Many of those were not from the traditional peace churches also faced separation from their communities or families simply for taking the stand.

Were there those who misused this? I am sure there were. Did some lie or build a case that wasn't their true beliefs but were simply to stay out of Vietnam? Of course there were. But most of those I knew were honest- sincere- and ready to take the consequences. Some fought it in the courts; most of them lost their appeals. Nearing the end of the Vietnam Era the Supreme Court broadened the requirements some, allowing those who were not part of the "peace churches" to be considered.

Back to accepting the consequences, though. That was the underlying decision faced by many. Which consequence, in their mind, was the least onerous, the best of all bad options?

So what does this have to do with discrimination?

• Example: A doctor who refuses to see patients who wish to have an abortion because of their belief that abortion is wrong.
• Example: A counselor who refuses to counsel a gay man because he believes homosexuality is sinful and would urge that person to work to change their sexual orientation.
• Example: A family-owned company does not want to pay for contraception as part of insurance coverage because of a sincere belief that it is sinful and against God's will.

The doctor, counselor, or corporate owner could easily see themselves as "Conscientious Objectors." Who am I to make them follow MY conscience or beliefs against theirs?

Ah yes, but it can get really tangled up. It has only been in my lifetime that in some states it became legal for people of different "races" to get married. It is only in my lifetime that people were told they couldn't treat people of other "races" or ethnic groups differently because they were "different." That is to name but a few examples of how discrimination can show up in the guise of "conscience." It wasn't that long ago that women weren't allowed to vote. And it is not long before that when even men who didn't own property were given the same right.

When, then, does conscience become discrimination? When does conscience become prejudice- or become a justification for what acts and looks like prejudice? When can a society- by cultural standards or law- tell people that their "beliefs" or "conscience" is wrong, unpatriotic, or even "illegal."

Mormons in the 19th Century wanted to practice polygamy- by their conscience. The greater society said no. Was society "discriminating" against Mormons in so doing?

Yet, prohibitionists in the early 20th Century persuaded the society to adopt "their" "moral position." The society suffered greatly.

Perhaps to answer the questions we need to look at issues and ethical principles like "the greater good" or "justice" (in the ethics sense of equality of care, fair distribution of resources, etc.), "autonomy", "do no harm, do good. We can get into different types of ethical stances and come out in different places. I believe it is worth the discussion. We are having it, of course, in our country at this time over same-sex marriage and its ramifications as well as the Affordable Care Act and contraception.

Let's do it in honest and supportive ways. Let's recognize that there are consequences to any of our actions. Which ones are we willing to accept- and live with- and which ones do we feel will cause harm and injustice? Let's do it with openness about what we really do believe and why we believe it, accepting that in a diverse and highly pluralistic society we may be in the minority as often as we are in the majority.

The COs of the Vietnam War era were definitely in the minority. Yet they were listened to and accepted. What can that mean for our current debate?