Tuesday, April 1, 2014

David Gans on Hobby Lobby: Whose Rights Count--Owners' or Workers'? (and Hobby Lobby Folks Meet Pope as Contraception Skirmish Occurs in Oklahoma)

At the Balkinization blog, David Gans offers one of the clearest explanations I've read of the fundamental issue at stake in the Hobby Lobby case about religious freedom and corporations. As he notes, 

The fundamental question at the heart of the case is whether the Court will extend free exercise rights to secular businesses and allow them to extinguish the rights of their employees.  That would be a radical break from both the Constitution’s text and history and everything the Court has said in the past about the meaning of the constitutional guarantee of the free exercise of religion. 

He concludes,

Hobby Lobby has been billed as a clash between the religious beliefs of the company’s owners and the power of the government, but that is a too narrow a frame.  As the Justices reflect on the oral argument, they should recognize that the rights of Hobby Lobby’s thousands of employees – who have deeply held beliefs and convictions of their own – are at stake here, too.   The big question at the heart of the case is whether Hobby Lobby’s owners will be entitled to impose their religious beliefs on Hobby Lobby’s employees and deny them federal rights critical to women’s health and reproductive freedom.  A ruling that would give business owners the power to extinguish their employees’ rights would be a grave setback for hard-working Americans.  And as Justice Kagan recognized, it would also open the floodgates to numerous other claims challenging other important federal laws and threatening other employee protections.  Employees should not have to check their personal liberty and human dignity at the workplace door.  

Religious freedom for me, but not for thee: as I've said in one posting after another (e.g., here) after the U.S. Catholic bishops began their spurious "religious freedom" war against the Obama administration, this has been the consistent pattern of that campaign. It's about maintaining their right to define your rights and my rights.

As a not-disconnected footnote: isn't it interesting that within days after President Obama met with Pope Francis, the Green family of Oklahoma--the evangelical business dynasty that owns Hobby Lobby and has filed suit against the Obama administration--also met with the pope? According to DeMoss, "the Atlanta public relations firm that represents the Greens," the purpose of this meeting of Francis with 18 members of the Green family was for them to thank the pope for the Vatican's loan of items to a traveling religious exhibit the Greens are mounting in various places.

Curious timing, isn't it, this stagey meeting? But surely one ought not to doubt the word of a high-powered evangelical public-relations firm about the accidental staging of this meeting, even if the founder of that firm was an advisor to the Romney campaign in 2012 and has a long history with Mr. Romney?

Surely there's nothing political about the Green family and their Hobby Lobby case. Is there?

And speaking of interesting footnotes: isn't it fascinating to note the dust-up occurring in the Greens's (and the Koch brothers') stomping ground of Oklahoma right now, as the Bartlesville Examiner-Enterprise reports that administrators of St. John Health System, the Catholic non-profit group that owns Jane Phillips Hospital in Bartlesville, gave doctors at the hospital a directive in a closed-doors meeting last Wednesday to stop prescribing contraceptives for birth control purposes? Steven Hsieh tells the story at The Nation today.

As the Bartlesville paper is now reporting in an update to the story, after a public outcry ensued following the original story, the St. John folks have issued the following rather labored and tortuous statement about their position:

Consistent with Catholic health care organizations, St. John Health System operates in accordance with the Ethical and Religious Directives for Catholic Health Care Services, and therefore does not approve or support contraceptive practices. However, only physicians (not institutions) are licensed to practice medicine and make medical judgments. While our physicians agree to abide by the Directives, they also have the ability to prescribe medications, including hormonal medications, in accordance with their independent professional medical judgment. This includes informing patients when they are operating under their own professional medical judgment and not on behalf of St. John Health System.

As I say, I find it interesting that this little skirmish in the culture wars around contraception is playing out in Oklahoma, as the Green family of Oklahoma engages in a Supreme Court battle with the Obama administration over contraceptive issues and meets with the pope within days of President Obama's meeting with Francis. But maybe I'm seeing patterns and politics where there are only coincidences and innocence.

Many thanks to Jim McCrea for posting a link to Gans's article in a comment here. 

The drawing of the hearing of the Hobby Lobby case is by Art Lien at the SCOTUS blog.

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