Hobby Lobby Horse Hockey

Today’s SCOTUS Hobby Lobby decision was an obvious assault on logic and common sense: Not only are corporations considered "immortal persons," they can now have religious convictions and therefore deny their employees birth control on moral grounds.

As humorist Andy Borowitz summed up in his parody news story style, "By a 5–4 vote on Monday, the United States Supreme Court settled a dispute that Justice Samuel Alito said was 'at its core about the rights of women versus the rights of people.'" But the problem goes beyond the legal fiction of corporate personhood. It shows how the rhetoric of freedom is routinely turned on its ear by conservatives who have chronic difficulty recognizing others' rights and it shows why they really hate government.

Various conservatives have called today's decision a victory for religious liberty. It is an Orwellian choice of words because it is actually a victory for religious coercion. Russell Moore, President of the Ethics & Religious Liberty Commission of the Southern Baptist Convention, tweeted, “#HobbyLobby wins. This is a great day for religious liberty. Government is not lord of the conscience.”

No, apparently your employer is.

This is familiar conservative illogic. It is even found in the mouths of self-identified “libertarians.” Indeed, as conservatives have co-opted libertarian rhetoric, libertarians have become more conservative. At this point, libertarian ideology has largely become a hodgepodge of elaborate rationalizations to excuse coercion. Corporate personhood is only one among many institutionalized absurdities that they enlist - states rights is yet another. Both are employed to deny the rights of breathing human beings. The Libertarian Party's morphed position on abortion illustrates this. As I wrote in my book:

Ayn Rand was staunchly pro-choice. “Abortion is a moral right – which should be left to the sole discretion of the woman involved.” She reasoned, “An embryo has no rights. Rights do not pertain to a potential, only to an actual being.”(1)(emphasis original) Her words could not possibly speak clearer. This issue was once so central to libertarian thought that, in the early 1980s, they printed tee-shirts with the image of a pistol, a pot leaf, and a woman symbol with the slogan “Libertarians are pro-choice on everything.” Well, they are no longer pro-choice on abortion. Today, the Libertarian Party regularly fields anti-abortion candidates for president. Indeed, they began back in 1988 with Ron Paul. Naturally, they reconcile this with their rhetoric of liberty by saying that your freedom should be left to the states. As one anti-Ron Paul graphic I saw put it: “Government so small it fits in your uterus.”

The court's Hobby Lobby decision is actually the predictable result of such thought. Consider this incident I recounted in the book:

When promoting his latest book, Every Day is an Atheist Holiday! [Penn] Jillette appeared on Glenn Beck’s show, “The Blaze.” Jillette argued (2) that a religious pharmacist “absolutely” had the right to deny a woman the abortion pill because the pharmacist’s individual conscience is sacred. But what about the woman’s? Beck did not ask that question, but they both probably would have said that she can go to another pharmacy. But what if there are not any more in the area? Then it sucks to be her. But individual conscience is actually not all that sacred to Penn Jillette. He added that the pharmacist’s employer was free to fire him and that would be fine just so long as the government did not get involved. The employer has an individual conscience too and apparently that trumps the pharmacist’s. Money trumps many things. It all seems pretty reasonable until you stop and think about it. Then you realize that there is a hierarchy with women at the bottom and bosses at the top. To paraphrase George Orwell, some consciences are more equal than others.

I was happy to see that I had anticipated Justice Ruth Bader Ginsburg’s dissent in the case. She wondered if the exemption would "extend to employers with religiously grounded objections to blood transfusions (Jehovah's Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations." In my rejoinder to Penn Jillette's argument, I had added:

You do not have to be a genius to realize that allowing pharmacists to deny birth control is only going to prompt theocratic prudes to become pharmacists. Why not allow Christian Science pharmacists to deny all prescriptions the same way they try to deny their children medical attention? Granted, they would be unlikely to find jobs, so you could say that the market would prevent that. But the principle still remains the same: The law should not allow others’ religious convictions to restrict your bodily autonomy. It is an abuse of your position to use your job to force your personal mores or desires on others. Likewise, bosses cannot demand sex from employees to grant raises or promotions. That is illegal – and should be. The predatory employer’s rationale is "If you do not like it, you can work someplace else."

In short, libertarianism is not pro-freedom but anti-government. To them, there is no coercion until government gets involved. Obviously, this philosophy does not recognize when government is trying to protect our freedoms. But one of the most fundamental functions of government is protecting us from each other. That is why we have laws against murder, robbery rape, etc. And this includes civil law as well as criminal law: If someone breaks a contract with you, you take them to court instead of taking the law into your own hands. This is some pretty fundamental stuff:

Take gay marriage, for example. On Glenn Beck’s show, Penn Jillette asked when government got involved in love and marriage as if this were some unprecedented new intrusion. Um, try the Code of Hammurabi. Marriage was a monetary transaction for millenniums before love got involved. And property remains a large part of marriage today, thus disputes over divorce, custody, or inheritance. As long as people own homes, have children, and have disputes, government has a role to referee. The notion that government should not get involved is absurd. Without a referee, "Might makes right" would decide every dispute. Libertarians ignore non-governmental bullying and insist government must never intervene to stop it. During the show, Jillette emphasized, "We do not want to be a country of bullies," But his philosophy is a bonanza for bullies and he should be smart enough to see that.

So, yes, corporate personhood is a big problem at the heart of this case, but it is not the only one. Misogyny is obviously another problem. But lopped on top of those is the right's opposition to the proper role of government. And that opposition has historically been grounded in their love of bullying and hostility toward liberty and equality. After all, it was not until after we began recognizing and upholding the civil rights of African Americans in the 1950s, that conservatives began screeching about "federal tyranny." But every other form of tyranny seems to be pretty okay to them.

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(1) Anne C. Heller, Ayn Rand and the World She Made (New York: Doubleday, 2009), 320-321.

(2) The abortion pill part starts at 28:47. Throughout the broadcast, Penn Jillette gave Glenn Beck passes on things he obviously should not have. For example, Jillette “absolutely” agreed with Beck that our country was founded on “Christian principles.”