The Supreme Court’s two, term-ending First Amendment decisions, Burwell v. Hobby Lobby and Harris v. Quinn, advance conservative policy goals. But they don’t do that in a way that seems particularly conservative.
In bygone days, conservatives often complained that liberals dispensed rights with abandon while seldom imposing corresponding responsibilities. Especially in the 1960s and 1970s, liberals stood accused of presiding over a “rights revolution” in Congress and the courts, expanding protections for racial and ethnic minorities, women, accused criminals, and the poor. These groups enjoyed greater freedom, the conservative argument went, but in the process avoided necessary societal obligations. “It is time,” then-Gov. Ronald Reagan of California said in 1968 at the Republican National Convention, “to restore the American precept that each individual is accountable for his actions.”
You don’t hear this sort of conservative rhetoric quite so much anymore. Partly that’s because once Reagan became president he stopped preaching personal responsibility and embraced a more hedonistic variety of conservatism. Taxes were cut without corresponding cuts in spending, ushering in an era of out-of-control budget deficits. Regulations were eased on business. Enforcement of civil rights and labor protections fell by the wayside, though this was done quietly. The idea wasn’t to restore accountability; rather, it was to shift prior non-accountability (real or imagined) to a more conservative clientele.
Burwell v. Hobby Lobby and Harris v. Quinn are the logical outcome of this shift.
This is especially so in Hobby Lobby. Congress (in passing the Affordable Care Act) and the Health and Human Services Department (in issuing regulations) decided that government-mandated health insurance should cover contraception. They created a right to contraception where none existed before. In the old days, the conservative counterargument might have been that creating this right was irresponsible because the broader society had a more compelling interest in discouraging extramarital sex. Because free (or heavily discounted) access to contraception could not be extended without making extramarital sex more common, that right, conservatives might have argued, ought not be granted. That would be more straightforward and honest.
Just this type of argument was laid out by Justice Antonin Scalia in Employment Division v. Smith, which denied two Native American drug rehab counselors the right to smoke peyote — even though it was part of a traditional Native American religious ceremony. The broader society, the Court found, had a more compelling interest in saying no to drugs. Ironically, this decision prompted a Democratically-controlled Congress to pass, in 1993, the very religious-freedom law on which the Supreme Court purports to base its Hobby Lobby decision.
Conservatives are much less inclined today to argue that rights outweigh societal responsibilities. With libertarianism now ascendant on the right, today’s preferred method is to apply the language of pluralism and tolerance. Society doesn’t care whether you engage in extramarital sex at all. But society does care if your exercise of such liberties happens to violate someone else’s freedom — in this instance, freedom of religion. That “someone else” in Hobby Lobby is a privately held for-profit corporation. And in this instance, the aversion is not to extramarital sex but to any recreational, non-procreative sex, even between married people.
For the record, for-profit corporations do not hold religious views, no matter what the Supreme Court says. They’re legal constructs, not spiritual beings, nor even, for that matter, atheists. But lets concede the point so we can examine the implications. Fine, Mitt Romney, corporations are people.
The reason these corporate “people” exist is to limit investors’ personal liability. There are tax advantages, too. For instance, while the top income tax rate on homo sapiens is 39.6%, the rate for corporations is 35% — and a lot of folks think that’s too high. Why should a for-profit corporation get to be a person under the Constitution’s First Amendment but not under the 16th, which established the personal income tax? To pile on top of these privileges the additional privilege of ignoring a legal mandate to provide contraceptive coverage to employees is awfully indulgent.
What type of person is the for-profit corporation? A spoiled brat — all rights and no responsibilities, a traditional conservative argument would say.
In Harris v. Quinn, thankfully, all parties are living, breathing human beings, but the upshot is similarly to extend rights without incurring obligations. Harris is about health care workers in Illinois who benefit from collective bargaining by the Service Employees International Union (SEIU), but who don’t want to join the union … which would be fine, but they don’t want to pay non-member fees to the union either. That’s a problem.
Nonpayment to collective-bargaining agents is allowed in “right to work” states in which employers have successfully persuaded state legislatures to help them drain union coffers. But Illinois is not a right-to-work state; it’s what the National Right To Work Legal Defense Foundation, the plaintiff in this case in all but name, calls a “forced-unionism state.” Hence SEIU was able to require that non-members pay fees. Several Illinois health care workers objected, and filed suit. The fees violated their First Amendment rights, they argued, by forcing them to subsidize an organization with which they didn’t agree. The Court, in a majority opinion written by Justice Samuel Alito, agreed.
The defendants claimed that Abood v. Detroit Board of Ed., a 1977 Supreme Court decision protecting collective bargaining at the state level, had settled this question in the union’s favor. As noted in a dissent by Justice Elena Kagan, Alito really wanted to overturn Abood, but he didn’t have the votes, so instead he argued that Abood (whose reasoning he savaged in the opinion) didn’t apply to these health care workers for technical reasons having to do with the uncertainty of their legal status as state rather than private employees.
Of course, neither the National Right To Work Legal Defense Foundation nor the businesses that fund them actually care a whit about anybody’s First Amendment rights. They’re in this to weaken SEIU and thereby lower labor costs. But Harris, like Hobby Lobby, diminishes personal accountability. To have a union negotiate your salary is good, the selfish calculation goes, but to have a union negotiate your salary without your having to pay the union? That’s pretty obviously better, because you get to be what economists call a “free rider.” And if that free rider option should happen to damage the union’s ability to collect enough dues and fees to survive? Who cares? I got mine.
Timothy Noah