In Burwell v.
Hobby Lobby, the Supreme Court ruled that the contraceptive mandate of
the Patient Protection and Affordable Care Act (PPACA) violates the First
Amendment religious rights of closely held for-profit corporations by violating
the Religious Freedom Restoration Act (RFRA). The RFRA
states: “Government shall not substantially burden a person’s exercise of
religion even if the burden results from a rule of general applicability.” By a
5–4 margin along traditional ideological lines, the Court struck down the
contraceptive mandate of the PPACA in the case of closely held for-profit
corporations which have religious objections. The owners of Hobby Lobby claimed
that being required to cover certain forms of contraceptives such as Plan B and
IUDs violated their religious rights because they consider these particular
contraceptives to be akin to abortion.
Justice Alito stressed that the ruling was
very narrow and only applied to closely held for-profit corporations objecting
to a law on religious grounds. He claimed that few situations would arise which
would be relevant under the holding. While the First Amendment religious
freedom aspect is the one which most commentators have focused upon, there is a
far more important aspect that has been overlooked. It does bear noting,
however, that granting a corporation—even a closely held one—religious rights
is dubious. A corporation is not identical with its shareholders. If business
owners wish to have their company as their alter ego, then they are perfectly
free to establish their business as a sole proprietorship or a partnership. By
forming a corporation and gaining the benefit of limited liability, shareholders
in a closely held corporation give up the right to use their business as their
alter ego. A corporation is a fictional person which has a fiduciary duty to
produce profits for its shareholders. It is simply not the kind of entity which
has religious values. While the personhood that is granted to corporations is a
legal fiction aimed at defending the Constitutional rights of shareholders, granting
freedom of religion to a corporation seems to be taking things at least one
step too far.
The more important feature about the case
is what it demonstrates about the future of Obamacare. Hobby Lobby is not going to derail Obamacare. Employees of corporations
such as Hobby Lobby will either do without one benefit of the PPACA or the
Obama administration will find some other way to accomplish the same end as the
contraceptive mandate—most likely allowing such corporations to pass the buck
and force taxpayers as a whole to somehow foot the bill. Justice Alito—a
supposedly conservative Justice—suggested as much in his opinion. The manner in
which socially conservative Republicans have celebrated this holding
foreshadows an ugly truth. Obamacare is here to stay. Any talk among
Republicans about getting rid of the PPACA appears to be nothing but lip
service. Given that neoconservatives do not care about deficits or about
domestic policy in general and given that RINOs were in favor of corporatist
health care back when it was viewed as a more free market alternative to a
socialistic single payer system, this should come as no surprise. Republicans
have a nasty habit of eventually acquiescing to new progressive Nanny
State programs. While the GOP once
opposed the programs of the New Deal and the Great Society, it has long since
resigned itself to making minor tweaks to these socialistic programs. These
so-called conservatives are content to save taxpayers pennies on the dollar by
making welfare, unemployment insurance, Medicare, etc. a little more efficient.
Even Ronald Reagan for all his huffing and puffing about eliminating the
Department of Education ultimately did nothing about it. It is alive and well.
Bigger and better than ever. Well, bigger at any rate.
Obamacare is patently unconstitutional.
However, it appears to be here to stay. The GOP is likely to use it as a
scapegoat when it needs to toss red meat to its base, but like the New Deal,
the Great Society, and the Department of Education, the PPACA is going nowhere.
In addition to using it as a symbol of the progressive bogeyman, the GOP will
now apparently use Obamacare to fascistically pick winners and losers in a
crony capitalist fashion. This First Amendment loophole created in Hobby Lobby is likely the first of many.
Exemptions to particular mandates in Obamacare will be used by both Democrats
and Republicans as a way of granting favors to partisan supporters.
Justice Roberts should take no solace in
the fact that he defended the Constitution in the Hobby Lobby case. Two years prior he ignored the Constitution so
egregiously that he destroyed his reputation beyond redemption.
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