‘Granting an exemption … operates to impose the employer’s religious faith on the employees’

Reading this older Ian Millhiser column at ThinkProgress, I’m struck by how pertinent the 1982 Supreme Court ruling in United States vs. Lee seems to be to the current Hobby Lobby hubbub. It seems to me that ruling in favor of the billionaire owners of Hobby Lobby would require the justices to overturn Lee.

Here’s Millhiser:

One year before Bob Jones, the Court decided a case called United States v. Lee, which involved an Amish employer’s objection to paying Social Security taxes on religious grounds.

As the Court explained in Lee, allowing people with religious objections to opt out of Social Security could undermine the viability of the entire program. “The design of the system requires support by mandatory contributions from covered employers and employees,” Burger wrote for the Court. “This mandatory participation is indispensable to the fiscal vitality of the social security system. … Moreover, a comprehensive national social security system providing for voluntary participation would be almost a contradiction in terms and difficult, if not impossible, to administer.”

Just as importantly, allowing religious employers to exempt themselves from the law would be fundamentally unfair to the employees who are supposed to benefit from those laws. “When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer’s religious faith on the employees.”

I don’t doubt that at least four of the current justices have no problem tossing aside that argument and that legal precedent. And since the Hobby Lobby case pits the rights of billionaires against the rights of workers, I have little doubt how the Roberts court will decide. (They’ve already affirmed that money is speech, declaring that money is religion seems like the next logical step in rewriting the First Amendment.)

But I’m not a lawyer, and I can’t imagine what kind of legal or constitutional argument could possibly be constructed to rationalize gutting Lee.

I can just barely begin to imagine the consequences of doing so, though, and those are not pleasant to contemplate. Rewriting American law to make opting-out the default setting for citizen responsibility would seem to open up everything to relitigation on behalf of anyone claiming a religious objection — Social Security, taxation, the 14th Amendment … heck, even the 13th Amendment.

As someone once said:

Any society adopting such a system would be courting anarchy. … The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind … ranging from compulsory military service, to the payment of taxes, to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races.

That was Supreme Court Justice Antonin Scalia in 1990. His point there also seems applicable to Hobby Lobby’s attempt to exempt itself from the law, and Scalia would seem to have a hard time arguing with himself to reject his own precedent. But I suppose, from Antonin Scalia’s perspective, the opportunity to criminalize birth control, further privilege his version of Christianity, gut Social Security and hobble the IRS, “health and safety regulations … minimum wage laws … environmental protection laws, and laws providing for equality of opportunity” looks irresistible. Precedent be damned.