Hobby Lobby, slippery slopes and the doubled-edged sword of freedom

Michael Peabody is an attorney who blogs at ReligiousLiberty.TV. He says that conservatives think he’s too liberal, and that liberals think that he’s too conservative, but he says he just believes what he believes and that he tries to address every issue on a case-by-case basis. That, he says, has made him a Biblical traditionalist who is tolerant and appreciative of those who offer other religious viewpoints. He’ll argue for young-earth creationism all day because that’s what he believes, but he is a strong advocate of the separation of church and state. As a Protestant, he believes that all people stand individually before God and that trying to force people to believe a certain way is pointless. Before rejoining his law firm in Los Angeles, he worked for a while as the Associate Director of Public Affairs and Religious Liberty for the Pacific Union Conference of Seventh-day Adventists where he represented plaintiffs in workplace religious discrimination and accommodation cases and acted as a legislative liaison for the church.

Last week I grabbed a few minutes of his time to ask a few question about the Supreme Court decision in Burwell v. Hobby Lobby.

It’s always a little surprising to me that “religious liberty” can be used in two totally opposite ways. Why is this so difficult to navigate? Does the Constitution and the RFRA protect against government infringement upon religion or government establishment of religion or both? And if it’s both, how does the law seek to balance these two opposite protections?

In the First Amendment to the U.S. Constitution, you’ve got these two major concepts having to do with religion. First, there is the Establishment Clause which says that Congress won’t make a law respecting the establishment religion and then there’s the Free Exercise Clause saying that Congress won’t make a law prohibiting the free exercise thereof. After the Civil War, the due process clause of the 14th Amendment applied these aspects to the states as well.

These mean that the government is not going to get involved with promoting a particular religion, and it is not going to stand in the way of people who want to practice their religion. The tension comes in when the government protects people who practice their religion, and gets so protective that it seems the government is promoting that religion.

If I come into the argument and say that God is on my side and quote a few Bible verses and completely cut off the other side’s argument, in the eyes of many, I will win the debate. This tactic has been used by tyrannical regimes throughout history and still happens today.

You did mention the Religious Freedom Restoration Act, which was passed nearly unanimously by Congress—unanimous in the House and by 97 votes in the Senate—in 1993 after the Supreme Court said in Employment Division v. Smith (1990) that any law that appeared to be neutral on its face, applied to everybody, even if it infringed on their free exercise of religion.

All kinds of religious groups were up in arms about the Smith decision. In that case two Native Americans who worked for a drug rehab center were not eligible for unemployment benefits because they were fired because they had smoked peyote as part of a religious ritual. Even religious groups that taught peyote was harmful opposed the decision because it wasn’t about the peyote – it was about the principle that the law could be used to override the sincerely held religious beliefs and practices of individuals.

Defenders of the Supreme Court’s decision in Burwell v. Hobby Lobby are quick to point out that it is a narrow decision regarding only a few forms of contraception. But how can it really be so narrow? What is to prevent any number of religions in our pluralistic society from claiming that the government is unduly burdening their business by, for example, requiring them to provide psychiatric drug coverage (in the case of a Scientologist business owner)? We already see religious organizations, including the Seventh-day Adventist Church that we’ve both been employed by in the past, asking for an exemption to employment discriminations mandates coming down from the White House. Do you think this is a narrow decision or is it more of a slippery slope?

I don’t always agree that there are slippery slopes, but in this case there definitely is one. I think there’s a separate standard for religious organizations that are set up for a particular mission, and for secular organizations that are set up to make money.

In the Hobby Lobby case, you’ve got about as extreme a situation as possible in order to build the widest platform for every potential exemption in a smaller case. Here there’s a 13,000 employee closely-held company that opposes, not directly handing contraceptive pills to employees, but paying for health insurance that pays for doctors who may or may not prescribe particular contraceptives to patients, and if they do prescribe them, that is protected confidential information under HIPAA. Some in the past have said that Hobby Lobby’s argument was quite “attenuated,” but if the Supreme Court has blessed that distant an objection, everything closer to an actual requirement by the company is fair game.

What if Hobby Lobby’s owners were Catholic and objected to the provision of all 20 contraceptives, not just four? Then nobody at Hobby Lobby would get contraceptives.

What if same-sex marriage has been legalized, and Hobby Lobby does not want to provide them with benefits that other married couples get? That’s certainly a lot less “attenuated.”

Or what if corporate owners object to vaccinations? As long as they can come up with a religious reason, those would be out too. If a corporate owner is an atheist then they are out of luck when it comes to raising this defense.

Or maybe if they believe that all female employees should wear burkha’s or that prayer mats in the workplace mess up the corporation’s feng shui? It could go on and on and the corporate religious rights could seriously start to tamper with individual religious rights under Title VII of the Civil Rights Act of 1964.

There’s something unsettling about living in a nation where the rights of distant corporate owners to practice their religion can affect what happens to you at the doctor’s office or in your bedroom. If there’s any possibility that corporations could use their faith to save a few dollars, then I expect that many will soon “find the Lord.”

Are you opposed to abortion?

You’re really trying to nail me to the wall here on this issue, but it’s a fair question. I can tell you that having kids changed my perspective.

My answer may be different tomorrow than it is today, but here’s my current thought. With the possible exception of a very few people, I think most people want to see abortion be as rare as possible. My view on this isn’t really religious but just from a human rights standpoint – I want to protect human life. I think “religious” definitions of secular things has really divided America more than it should have. So let me get that out of the way first.

Nat Hentoff, a famous humanist whose writing I’ve always appreciated, once said,
‘Being without theology isn’t the slightest hindrance to being pro-life.” And one of my favorite writers, Christopher Hitchens, said that he considered “the occupant of the womb as a candidate member of society” and argued that “the unborn entity has a right on its side.”

I did some interesting research into how abortion laws are made, and it turns out that in California abortion is an exception to Penal Code section 187 that makes murder illegal. You can read it here.

It is illegal to kill an unborn child if you’re not a doctor or it is without the consent of the mother. If you find out that your girlfriend is pregnant and sneak pills into her food that kill the fetus, you’d be guilty of murder in California. The term “abortion” is kind of a sanitized way to describe it.

We have two kids, and one of them, my daughter, was born 7 weeks early. She was born by C-section but she came out screaming and crying and I started crying because it was such a beautiful, beautiful thing to see. She was in NICU for a couple of weeks and there were babies much smaller than she was and I realized that life is a beautiful thing that can in fact be protected even at its most vulnerable. I saw parents sitting around their babies in these incubators praying and crying and holding them and it was a touching scene.

She was less than 4 pounds when we took her home, and I was thinking, where do you draw the line between being viable and not? People have “baby showers” not “fetus showers” and early on, you’ve got this idea that a real life is forming inside – if you want to keep the life, you think about reading to the baby and if you’re lucky you can feel it start to kick. That’s an awesome thing, and I don’t think you need to have a certain kind of religious belief to realize that there’s a little person inside just waiting to come out. All systems are set to “go” in most cases, and the little kid is going to come out, and take a deep breath and smile.

Oddly enough, I think the Adventist Church is one of the only pro-choice Protestant denominations out there, and I know that there have been abortions in Adventist hospitals and that’s really a sad thing. In a sense, there’s a build-from-the-conclusion-backwards theology that some have developed that claim that Exodus 21 says that killing an unborn child is merely a tort not murder, and a unique view that some Adventists have that a person is only a living soul if they take a breath of outside air because that’s when God breathes into them. On the Exodus issue, a murder would lead to the death penalty and as a lawyer, how do you identify the proximate cause of the miscarriage and as to the living soul thing, those same people aren’t opposed to using oxygen tubes in living adults.

There’s a famous painting that Adventists like to put up that has Jesus guiding the hands of a surgeon. I can’t imagine Jesus guiding the hands of a surgeon performing an elective abortion.

In Catholic hospitals, a baby is born into the arms of the church if it is not wanted and I think that’s a wonderful thing.

There are always the rape, incest, life of the mother type exceptions, and I’m not going to try to get in the head of those involved and tell them what to do, but I would hope that as much as possible that they would choose to let the life within them live. I understand that some people will have abortions no matter what, and that’s why I’m more interested in a persuasive than a legal argument on the issue.

So, do you think that abortions should be illegal?

When you think of it, all of us who were born after 1973 were chosen to live, or our mothers just couldn’t get it together to abort us, but we ran the gauntlet and survived. But I think the ship has sailed with regard to making abortion illegal.

But that doesn’t mean that people have to have abortions just because they are legal. There are lots of things that are legal that are not wise. I do think that those who are pro-life should be willing to do what it takes to support children living in poverty and promote adoption programs. Mothers who decide to go ahead and have children should be treated like heroes and supported and loved. If that means it costs a lot, then we need to be willing to pay that cost.

So long as abortions are legal, or contraceptives are legal, then that’s the legal reality.

Do you think these specific contraceptions in question are, in fact, causing abortions?

This is one of those things that I’m really not sure about. I don’t know what medications do what, and I know that the Court in the Hobby Lobby case tried to avoid that issue as well. The Court said that it didn’t really matter if these medications cause abortions, only that the corporation’s owners had a religious belief that they cause abortions.

Doesn’t that seem strange to you that the court would prioritize people’s beliefs over the science? In that case people could claim to believe anything and seek the court’s protection.

Most religious beliefs are not based on science and I don’t think we want to go down the road where religious liberty protections are contingent upon proving up scientific fact. I’m a creationist as a matter of faith and it makes sense to me that there is a plan and purpose to the way the entire universe is put together. I’m not going to be able to beat back every scientific argument but I also recognize that it is a religious belief so I won’t force it on public schools or water it down by developing some kind of hybrid belief that may make it into a mandated curriculum. At the same time, I would expect that I would have the right to believe and teach as I believe so long as people aren’t mandated by the government to pay for me to say these things or listen to me.

In this case you’ve got a situation where a corporation is making a medical determination for compensability of a medical procedure and determining for secular employees that it will not be paid for based on corporation’s philosophical view of whether an embryo is a human prior to or after implantation in the uterus.  But that’s really just taking a narrow view of what this case is about.

Under Hobby Lobby I suppose a Catholic employer could deny coverage of all contraceptives if they are devout and the same logic would apply.

Abortion is an interesting topic as it has been set up where people argue against it for religious reasons but in favor or it for secular reasons.  For the sake of the future I think people might benefit from deconstructing the issue and addressing the question of what abortion actually is from a secular perspective like other human rights issues are addressed.  Either a fetus is a human or it is something else. For too long those in favor of choice have tried to dehumanize the fetus rather than address the real considerations that are involved in deciding whether it will live or die.

One of the arguments in the health care reform debate was the limitation on the freedoms of consumers. Now it seems Hobby Lobby wants to limit people’s choices. How do social conservatives reason their way through this? It looks to me like a double standard.

There are adults and there are children in society. The adults are strong and successful and the children are weak and needy. This kind of rationale comes from both the right and the left. In Los Angeles, much to my annoyance, grocery stores don’t give you shopping bags for free anymore – you either have to juggle all your stuff to your car or pay some money for a bag. That came from the left and I feel like that limited my choices, and it limited the choice of the grocery store that ends up with a broken jar of pickles in the parking lot at least once a day.

And the left likes to raise taxes more than the right, and taking away somebody’s money is the most effective way to limit their choices. So the left tends to limit choices too. I think if you go far enough to the left you end up with a communist state where you’re thrown in jail for not going along with the program. Or if you go too far to the right you end up in a theocracy and are thrown in jail for not going along with the program. If you think of it like both groups starting out at the 6 on a clock and going the opposite direction, they’ll both end up at 12 eventually.

Health insurance tends to limit freedoms as it stands—just try going out-of-network—so the consumer freedom argument was always kind of strange. In all fairness, Hobby Lobby simply said they wouldn’t pay for the contraceptives that they objected to, they didn’t block them off or prohibit them. And the Court said that if Hobby Lobby won’t pay for them, the government can. If anything, maybe Hobby Lobby created a single-payer system, at least for those four contraceptives.

How do you feel about religious freedom laws being applied to corporations? I know we technically say corporations are people, but can they now have religious beliefs, too? Is this a new thing or is there a precedent for a for-profit corporation, closely held or not, having religious beliefs?

I’ve been doing some digging and there’s always been this idea that corporations are “persons” in the sense of the law. If you’re a business owner and you want to avoid being held personally liable in the event that your business gets sued, you create a corporation. That corporation becomes separate from you, and you have to follow various corporate formalities in order to preserve that status.

If you sue a corporation but want to get to the assets of the owners, you have to do something called “piercing the corporate veil” and show that the corporation is only an alter ego of the owner.

In Hobby Lobby, and in Citizens United which said corporations have the right to political speech, the Court has really started to make certain corporations giant super-persons under the law. In Hobby Lobby the Court said it only applies to “closely held” companies. “Closely held” doesn’t mean small – Hobby Lobby has 13,000 or more employees. But it means that only a few people really own and run them.

Frankly, I don’t see why corporations want to become so closely aligned with their owners because it may make some windows in the corporate veil. I think that’s why the business community has taken a hand-off approach to the Hobby Lobby case.

In Christianity, and I don’t know about other faiths, corporations don’t get to go to heaven—only “natural persons”—so I don’t get that excited about corporations getting religion. I certainly hope that they will respect the rights of the individual employees to believe or not to believe and that the owners will not have their religious beliefs or practices impeded.

Some have suggested that the core problem here is having employers involved in the health care process at all and that the solution would be to remove businesses from the equation. How do you feel about that?

Well, somebody needs to pay for healthcare. Right now it costs a ridiculous amount to get health insurance in the U.S., and most individuals can’t afford it. It used to be a “benefit” that employers would provide to their employees and now it’s more of an entitlement. If businesses don’t provide it, and people can’t afford it, then more people will lack coverage and either the government will have to step up and provide it or people will be dying for lack of coverage.

I don’t know much about what single payer health insurance would do in America, but I do know that the government has had trouble running the Veterans Administration Hospitals, which are probably the closest test of what the Federal government would do to our healthcare. So that’s kind of scary.

One of my liberal friends on Facebook wrote something that surprised me and I wanted to ask you about it. He said, “There is no constitutional obligation for an employer to supply contraception coverage to anyone…. At issue here is not what we think is ‘right.’ What’s at issue is what is constitutionally required, and healthcare coverage is not required.” Is that true? In that case, why was this an issue at all? Why did it rise all the way the Supreme Court of the United States.

That’s an “original intent” questions and the U.S. Supreme Court has already said that the Affordable Care Act is Constitutional so at that level it’s a moot point. But in all seriousness, the Founders didn’t have much to say about health care as they used their mercury medication and had their leech treatments. I suppose if they knew about arthroscopic surgery or heart transplants they might have seen things differently.

How do you respond to people who say that this is about ownership rights and government power to mandate what people can and cannot do with their property?, based on their beliefs? I read one person making an analogy to the government forcing a Jewish deli to sell pork sausages.

Lots of times these examples are things that would simply never come up. If you can show me an example where the government made a Jewish deli sell pork sausages (or anything specific for that matter), maybe we would have something to talk about.

In some ways, and this is still a developing idea for me, religious liberty really is a fundamental property right – you have a right to your religious beliefs. Nations that respect private property tend to respect religious liberty (and by this, I mean the right to believe and practice or not according to the dictates of your own conscience) more than nations that don’t.

I believe that the United States has been one of the most free nations in the world because there’s a separation of church and state, and there’s also this sense that has developed in the last 50 years since Title VII was passed, that the government will promote religious accommodation along with a host of other civil rights.

Because we live in a nation that appreciates these kinds of freedoms, and seeks to keep everything in balance, we’re always going to have times when the pendulum may swing a bit in one direction or another, but we’re really doing alright at this point.

Religious freedom is an inclusive, not exclusive, right, but it’s in constant tension. I think the tension is a good thing because it keeps the freedom alive and means that all sides are actively engaged in the process of preserving it. I’m glad to see the debate on the Hobby Lobby case because it means that lots of people are thinking about it and developing a working knowledge as to how the Constitution works. One of the biggest killers to conversation on these issues is when people stop addressing the specific legal issue and start impugning motives by claiming that the other side is intentionally trying to destroy freedom. That kind of argument is a non-starter and kills the conversation. Instead, the discussion needs to focus on the issues and both sides should be able to present their cases in good faith. It won’t always mean that an agreement will be reached, but that’s not necessary – what is necessary is that both sides remain engaged in the discussion – if the left or the right were to give up, that’s when freedom could capsize.

 Thank you so much for talking to me about this, Michael!

About Ryan Bell

For 19 years Ryan Bell was a pastor, most recently the senior pastor of the Hollywood Seventh-day Adventist Church. In March 2013 he resigned his position due to theological and practical differences. As an adjunct professor he has taught subjects ranging from intercultural communication to bioethics.
Currently he is a researcher, writer and speaker on the topic of religion and irreligion in America. In January 2014, Ryan began a yearlong journey exploring the limits of theism and the atheist landscape in the United States and blogs about that experience here at Year Without God.


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