Tuesday, July 1, 2014

Harm to Others Should Be the Standard

Supreme Court Justice Ruth Bader Ginsburg, in her dissent to Monday's Hobby Lobby decision, asked,

Would the [Religious Freedom Restoration Act (RFRA)] require exemptions in cases of this ilk? And if not, how does the court divine which religious beliefs are worthy of accommodation, and which are not? Isn’t the Court disarmed from making such a judgment given its recognition that ‘courts must not presume to determine the plausibility of a religious claim’?
As an example, she referred to a 1985 Minnesota case of a born-again-Christian-owned health club, whose owners discriminated against cohabiters, women working without their father or husband's permission, fornicators, and homosexuals. The Minnesota court found that the company's owners were bound by the state's anti-discrimination laws, despite the religious base for their rules.

The case of the two men who brought the suit that resulted in the passage of RFRA in the first place -- Employment Div., Dept. of Human Resources of Ore. v. Smith -- was different from either Hobby Lobby or the Minnesota health club. The men had smoked peyote in a Native American religious ceremony and were fired from their jobs as drug counselors, then denied unemployment compensation. That denial was the proximate reason for their lawsuit -- not the firing itself.

Their peyote smoking, based in their religion, had caused no direct harm to anyone else -- unlike the Minnesota health club owners or Hobby Lobby's corporate policies. Ginsburg's dissent even affirms this idea as consistent with past Supreme Court findings:
Accommodations to religious beliefs or observances, the Court has clarified, must not significantly impinge on the interests of third parties. The exemption sought by Hobby Lobby and Conestoga would override significant interests of the corporations' employees and covered dependents. It would deny legions of women who do not hold their employers' beliefs access to contraceptive coverage that the ACA would otherwise secure.
This type of "no harm to others" basis for decisions is the standard that should be used. It would, for instance, protect kids from parents who refuse medical treatment to the children. And it might recognize Quakers' right not to pay taxes that go toward wars -- because that has no direct effect on anyone else. (Won't that be the day, when the Supreme Court hears a suit on that basis. Hah.)

The courts clearly need a standard to use to decide when religious beliefs can and cannot be infringed on, since there is a long history of infringing (anti-polygamy laws, for instance). No significant harm to others seems like a much better standard than whatever Samuel Alito and the rest of the current majority have in their back of their minds.


And none of this even addresses the reality that Hobby Lobby's objection to IUDs and the morning-after pill is based on factually incorrect understandings of how those kinds of contraception work. Neither is an abortifacient, though they were thought to be decades ago. The court, unfortunately, didn't consider that objective called "truth" in its consideration.

1 comment:

Gina said...

Oh, excellent post with sharp points! Thank you. I have not read what Ginsberg wrote or even snippets until your post. I was still glad she wrote such a long dissent. It really bothers me that an employer can dictate to me 1) my religious beliefs and 2) what kind of medical care I receive. Obviously I would not work for such an employer, but there are women who might not have a choice. They need the job.

Another point that bugs me: I've always considered religious belief a personal and private matter. It really bothers me that the owners of Hobby Lobby want to impose their religious beliefs on others. While they are free to believe what they wish, the Constitution protects us, doesn't it, from that kind of imposition? Or no?

Anything that violates the church-state separation really bugs me anyway.