In “The Conscience of a Corporation” Mr. Keller discusses stretching religious freedom to the breaking point. Prof. Krugman, in “The Ignorance Caucus,” says the G.O.P. refuses to live in an evidence-based world. Here’s Mr. Keller:
David Green, who built a family picture-framing business into a 42-state chain of arts and crafts stores, prides himself on being the model of a conscientious Christian capitalist. His 525 Hobby Lobby stores forsake Sunday profits to give employees their biblical day of rest. The company donates to Christian counseling services and buys holiday ads that promote the faith in all its markets. Hobby Lobby has been known to stick decals over Botticelli’s naked Venus in art books it sells.
And the company’s in-house health insurance does not cover morning-after contraceptives, which Green, like many of his fellow evangelical Christians, regards as chemical abortions.
“We’re Christians,” he says, “and we run our business on Christian principles.”
This has put Hobby Lobby at the leading edge of a legal battle that poses the intriguing question: Can a corporation have a conscience? And if so, is it protected by the First Amendment.
The Affordable Care Act, a k a Obamacare, requires that companies with more than 50 full-time employees offer health insurance, including coverage for birth control. Churches and other purely religious organizations are exempt. The Obama administration, in an unrequited search for compromise, has also proposed to excuse nonprofit organizations such as hospitals and universities if they are affiliated with religions that preach the evil of contraception. You might ask why a clerk at Notre Dame or an orderly at a Catholic hospital should be denied the same birth control coverage provided to employees of secular institutions. You might ask why institutions that insist they are like everyone else when it comes to applying for federal grants get away with being special when it comes to federal health law. Good questions. You will find the unsatisfying answers in the Obama handbook of political expediency.
But these concessions are not enough to satisfy the religious lobbies. Evangelicals and Catholics, cheered on by anti-abortion groups and conservative Obamacare-haters, now want the First Amendment freedom of religion to be stretched to cover an array of for-profit commercial ventures, Hobby Lobby being the largest litigant. They are suing to be exempted on the grounds that corporations sometimes embody the faith of the individuals who own them.
“The legal case” for the religious freedom of corporations “does not start with, ‘Does the corporation pray?’ or ‘Does the corporation go to heaven?’ ” said Kyle Duncan, general counsel of the Becket Fund for Religious Liberty, which is representing Hobby Lobby. “It starts with the owner.” For owners who have woven religious practice into their operations, he told me, “an exercise of religion in the context of a business” is still an exercise of religion, and thus constitutionally protected.
The issue is almost certain to end up in the Supreme Court, where the betting is made a little more interesting by a couple of factors: six of the nine justices are Catholic, and this court has already ruled, in the Citizens United case, that corporations are protected by the First Amendment, at least when it comes to freedom of speech. Also, we know that at least four members of the court don’t think much of Obamacare.
In lower courts, advocates of the corporate religious exemption have won a few and lost a few. (Hobby Lobby has lost so far, and could eventually face fines of more than $1 million a day for defying the law. The company’s case is now before the Court of Appeals for the 10th Circuit.)
You can feel some sympathy for David Green’s moral dilemma, and even admire him for practicing what he preaches, without buying the idea that la corporation, c’est moi. Despite the Supreme Court’s expansive view of the First Amendment, Hobby Lobby has a high bar to get over — as it should.
For one thing, under Title VII of the Civil Rights Act — which was enacted at the behest of religious groups — companies cannot impose religious tests on their employees. They can’t hire only Catholics, or refuse to hire Catholics. They cannot oblige you to practice the same faith their owners do. Companies are, by legal design, zones of theological diversity and tolerance. So Green, whose company is privately held, can spend his own money to promote his faith, but it would be an act of legal overreach to say that he can impose his faith on his employees by denying them benefits the government has widely required.
“If an employer can craft a benefits system around his religious beliefs, that’s a slippery slope,” said Marci Hamilton, a professor at the Benjamin N. Cardozo School of Law and a critic of religious exemptions. “Can you deny treatment of AIDS victims because your religion disapproves of homosexuals? What if your for-profit employer is a Jehovah’s Witness, who doesn’t believe in blood transfusions?”
Also, courts tend to distinguish between laws that make you do something and laws that merely require a financial payment. In the days of the draft, conscientious objectors were exempted from conscription. A sincere pacifist could not be obliged to kill. But a pacifist is not excused from paying taxes just because he or she objects to the money being spent on war. Doctors who find abortions morally abhorrent are not obliged to perform them. But you cannot withhold taxes because some of the money goes to Medicaid-financed abortion.
“Anybody who pays taxes can find something deeply offensive in what the government does,” said Robert Post, a First Amendment expert at Yale Law School. “ ‘I’m not paying my taxes because of torture at Guantánamo.’ ‘I’m not paying my taxes because of drones.’
“People can’t pick and choose their taxes, because you couldn’t have a functioning tax system.”
I don’t know what the courts will say, but common sense says the contraception dispute is more like taxation than conscription. Nothing in the Obamacare mandate obliges anyone to use contraception if, for example, she is in the tiny minority of American Catholics who take the church’s doctrine on birth control seriously. And Hobby Lobby’s policy doesn’t prevent the use of morning-after pills: it just assures that if an employee does use emergency contraception, she pays for it out of her Hobby Lobby paycheck rather than her Hobby Lobby insurance.
Douglas Laycock, a law professor at the University of Virginia who often sides with proponents of broader religious liberty, has taken to warning his friends that their aggressive positions on abortion, gay rights and now contraception are undermining the longstanding American respect for free exercise of religion.
“The religious community cannot take religious liberty for granted,” he said in a speech before the contraceptive issue blew up. “It needs to expend a lot more energy defending the right to religious liberty, and it would help to spend a lot less energy attacking the liberty of others.”
Cases like Hobby Lobby, he told me, have compounded his worry.
“Interfering with someone else’s sex life is a pretty unpopular thing to do,” he said. “These disputes are putting the conservative churches on the losing side of the sexual revolution. I think they are taking a risk of turning large chunks of the population against the idea of religious exemptions altogether.”
But Laycock’s is a lonely voice among advocates of religious exemptions. More typical is Rick Warren, the evangelical megachurch pastor, who says the battle to preserve religious liberty “in all areas of life” may be “the civil rights movement of this decade.” Warren goes on to say — I am not making this up — that “Hobby Lobby’s courageous stand, in the face of enormous pressure and fines,” is the equivalent of the Birmingham bus boycott.
When I read that kind of rhetoric from our country’s loftier pulpits, I understand why the fastest-growing religious affiliation in America is “none.”
Rick Warren is an infected pustule on the posterior of humanity. Here’s Prof. Krugman:
Last week Eric Cantor, the House majority leader, gave what his office told us would be a major policy speech. And we should be grateful for the heads-up about the speech’s majorness. Otherwise, a read of the speech might have suggested that he was offering nothing more than a meager, warmed-over selection of stale ideas.
To be sure, Mr. Cantor tried to sound interested in serious policy discussion. But he didn’t succeed — and that was no accident. For these days his party dislikes the whole idea of applying critical thinking and evidence to policy questions. And no, that’s not a caricature: Last year the Texas G.O.P. explicitly condemned efforts to teach “critical thinking skills,” because, it said, such efforts “have the purpose of challenging the student’s fixed beliefs and undermining parental authority.”
And such is the influence of what we might call the ignorance caucus that even when giving a speech intended to demonstrate his openness to new ideas, Mr. Cantor felt obliged to give that caucus a shout-out, calling for a complete end to federal funding of social science research. Because it’s surely a waste of money seeking to understand the society we’re trying to change.
Want other examples of the ignorance caucus at work? Start with health care, an area in which Mr. Cantor tried not to sound anti-intellectual; he lavished praise on medical research just before attacking federal support for social science. (By the way, how much money are we talking about? Well, the entire National Science Foundation budget for social and economic sciences amounts to a whopping 0.01 percent of the budget deficit.)
But Mr. Cantor’s support for medical research is curiously limited. He’s all for developing new treatments, but he and his colleagues have adamantly opposed “comparative effectiveness research,” which seeks to determine how well such treatments work.
What they fear, of course, is that the people running Medicare and other government programs might use the results of such research to determine what they’re willing to pay for. Instead, they want to turn Medicare into a voucher system and let individuals make decisions about treatment. But even if you think that’s a good idea (it isn’t), how are individuals supposed to make good medical choices if we ensure that they have no idea what health benefits, if any, to expect from their choices?
Still, the desire to perpetuate ignorance on matters medical is nothing compared with the desire to kill climate research, where Mr. Cantor’s colleagues — particularly, as it happens, in his home state of Virginia — have engaged in furious witch hunts against scientists who find evidence they don’t like. True, the state has finally agreed to study the growing risk of coastal flooding; Norfolk is among the American cities most vulnerable to climate change. But Republicans in the State Legislature have specifically prohibited the use of the words “sea-level rise.”
And there are many other examples, like the way House Republicans tried to suppress a Congressional Research Service report casting doubt on claims about the magical growth effects of tax cuts for the wealthy.
Do actions like this have important effects? Well, consider the agonized discussions of gun policy that followed the Newtown massacre. It would be helpful to these discussions if we had a good grasp of the facts about firearms and violence. But we don’t, because back in the 1990s conservative politicians, acting on behalf of the National Rifle Association, bullied federal agencies into ceasing just about all research into the issue. Willful ignorance matters.
O.K., at this point the conventions of punditry call for saying something to demonstrate my evenhandedness, something along the lines of “Democrats do it too.” But while Democrats, being human, often read evidence selectively and choose to believe things that make them comfortable, there really isn’t anything equivalent to Republicans’ active hostility to collecting evidence in the first place.
The truth is that America’s partisan divide runs much deeper than even pessimists are usually willing to admit; the parties aren’t just divided on values and policy views, they’re divided over epistemology. One side believes, at least in principle, in letting its policy views be shaped by facts; the other believes in suppressing the facts if they contradict its fixed beliefs.
In her parting shot on leaving the State Department, Hillary Clinton said of her Republican critics, “They just will not live in an evidence-based world.” She was referring specifically to the Benghazi controversy, but her point applies much more generally. And for all the talk of reforming and reinventing the G.O.P., the ignorance caucus retains a firm grip on the party’s heart and mind.