The Supreme Court will decide in the Hobby Lobby case whether a business can be released from adherence to the law based on the religious convictions of its owner. The governor of Arizona will sign or veto a law which gives businesses the right to discriminate against gay individuals if they do so to prevent violating their own religious convictions. The liberals are upset that businesses might be allowed to impose their conservative beliefs on their employees or customers. In the case of Hobby Lobby, federal law mandates that businesses provide health coverage to their employees and with it contraception coverage which also must include access to morning after contraceptives that some consider to be abortifacients. Can a business owner be exempt from the law, infringing on the rights of its employees to services the law provides, in the name of his own religious rights? In the Arizona case, and in other states considering similar laws, a business owner could refuse to serve people who do not adhere to the standards of behavior and belief that his religion demands. Liberals see both of these cases as an attack on the individual rights of employees and customers; conservatives as upholding individual rights of the business owners.
But before we solidify a response into unimpeachable, abstract principles, let’s do a bit of a thought experiment. Let’s imagine a scenario where a liberal business owner would insist that his rights were being violated if forced to provide services in circumstances he disapproved of.
For an analogy to the Hobby Lobby case, I propose that it’s 2017, Rick Santorum is president, and the Republicans have majorities in both the House and Senate. Realizing that they can’t take away the health insurance that the ACA has already provided to untold numbers of citizens, they decide to tinker around the edges. They pass a law that requires all business owners to provide gay conversion therapy as part of their health plan, and to identify which of their employees might be gay and encourage them to take advantage of the gay conversion offering.
As an analogy to the Arizona law case, imagine that Duck Dynasty has come to town to demonstrate and promote its views. A business owner who owns a catering shop is asked to provide catering to the marchers at their destination.
Would a business owner who has gay employees and supports gay rights and who might be gay himself be justified in refusing to provide and promote gay conversion therapy in the employee health plan. Would liberals support his case as it wended its way to the Supreme Court? Would the caterer who disapproves of Duck Dynasty-like homophobia and doesn’t want to be associated with it be justified in refusing to provide services based on his convictions? Where would liberals stand?
The point is not to equate gays with homophobes, but to get at the heart of being forced as an individual to participate in activities of which you strongly disapprove.
Jonathan Haidt has written about morals. He contrasts how we approach aesthetics with how we approach morals. We can look at a painting and say I like it or not without feeling a need to justify our judgement. But with moral judgements, we do feel a need for justification, so we refer to abstract principles, and then use this reasoning to demonstrate conclusively the rightness of our moral judgement. Unfortunately for most cases, our abstract principles break down when subjected to close scrutiny, as I propose is the case here.
Does this then justify the Hobby Lobby position? The Arizona law? Kentucky senator Rand Paul has promoted in the past a reasoned and clear principle that we should all have freedom of association, to the degree that business owners should be able to choose who they wish to serve and not serve. Even if it means blatant discrimination against blacks. Or Jews. Or gays. It is telling, though, that he has backed off of this clear statement of principle as he ponders a campaign for the presidency. Why should this be so?
Life with other human beings is messy. The neurons of our brains and the synapses which connect them are far more intricate than our ability to reason by principle. We are social beings who have evolved, and whose brains have evolved, to facilitate living with other human beings in society. This makes us complicated and difficult to fathom.
But society also evolves with us. One day it will be considered odd for government to promote discrimination on the basis of gender preference, as it is to promote discrimination on the basis of gender, or ethnic or racial origin. Legally, that day has probably already arrived. The courts will almost assuredly reject discriminatory laws like those being forwarded in Arizona. Or maybe they will be dropped, as in Kansas, or vetoed in Arizona, and just disappear.
What about the Hobby Lobby case? (Our analogy of contraceptive coverage with gay conversion therapy breaks down in that there are employees of Hobby Lobby who wish to take advantage of contraceptive coverage (have the right to it under the law), whereas our thought experiment regarding gay conversion therapy is a case of forcing something on businesses and individuals). The Obama administration and the ACA have carved out exceptions for some groups which are so obviously religiously-oriented that it is easy to accept that they should be exempt from certain considerations of the law. If Hobby Lobby were a corporation rather than a privately-owned business, they would certainly get nowhere trying to carve out an exemption to the ACA on personal religious grounds, Citizens United notwithstanding. I don’t believe there are many who are predicting with confidence how the court will ultimately decide. (Personally, I think that one business owner doesn’t get to rule over many employees in a case like this).
How disappointing it is not to be able to promote one’s conservative or liberal sentiments by means of airtight, bullet-proof abstract principles. I guess we have to do it in the wrestling match of the political arena.