On Monday, conservatives across the country celebrated Justice Samuel Alito’s decisions in Harris v. Quinn and the so-called Hobby Lobby case. Harris v. Quinn established that states could not force home health care providers into unions; the Hobby Lobby case decided that closely-held, for-profit corporations owned by religious people could not be forced to pay for the contraceptive care of their employees.
Right-wingers on Twitter, talk radio, and throughout the blogosphere hailed the decisions as great conservative victories; leftists hailed them as great defeats (including the execrable Sandra Fluke, who falsely tweeted that the Supreme Court had somehow granted blanket ability for employers to reject birth control coverage).
Conservatives would be significantly wiser to react with caution.
SCOTUS Always Limits Freedom Broadly But Makes Exceptions Narrowly. Before Hobby Lobby, the Supreme Court ruled that Obamacare could mandate that employers purchase health insurance plans for their employees, and that individuals had to buy health insurance plans or face a fine. That left the door open to complete government control of how Americans receive their health care.
Today, the Supreme Court stepped back from that in the slightest of ways, explaining that “closely-held corporations” could not be forced to purchase health insurance coverage for certain types of contraceptive care. This was the narrowest possible ruling in this case. It only applies, as we will explain, to certain types of businesses, and only then in certain types of situations. For conservatives to celebrate this decision seems overblown.
The same holds true in Harris v. Quinn, which did not overturn Abood v. Detroit Board of Education (1977), the case establishing that public sector employees could be forced into unions. While blasting the Abood decision, the Court did not overturn it, instead distinguishing “personal assistants” to the disabled from public employees, since “PAs are almost entirely answerable to the customers and not to the State, do not enjoy most of the rights and benefits that inure to state employees, and are not indemnified by the State for claims against them arising from actions taken during the course of their employment.”
SCOTUS Carved Distinction Between Businesses For Purposes of Religious Freedom. The Supreme Court’s decision to limit religious freedom of any sort to “closely held corporations” means that publicly-traded companies are not included in their analysis. The Court simply found that “it seems unlikely that the sort of corporate giants to which [the Department of Health and Human Services] refers will often assert [Religious Freedom Restoration Act] claims.” Which means that religious businessowners have now been encouraged not to go public. The Court also leaves the government in the position of determining religious “sincerity” for purposes of the law.
SCOTUS Suggested That Taxpayers Should Cover Contraceptives. The Court states that instead of religious corporations being required to provide certain types of contraception, taxpayers should do it at the behest of HHS. In essence, then, individual businessowners are off the hook, but their taxes will still pay for their employees to receive contraceptive coverage to which they morally object.
SCOTUS Did Not State That Religious Freedom Extends to Religious Freedom Broadly Defined. The Supreme Court states in the case syllabus, “This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs. Nor does it provide a shield for employers who might cloak illegal discrimination as a religious practice.” Presumably, that means that religious employers who don’t wish to cover homosexual spouses, believing that doing so subsidizes sin, would be barred from asserting such complaints.
SCOTUS Finds That Religious Freedom Is More Important Than Ordinary Freedom, For Some Odd Reason. The Supreme Court has found that Obamacare can mandate that you cover your employee’s health insurance, and has found that the government can force you personally to buy health insurance. But for some odd reason, the Supreme Court has found that religious people have different rights. The founders would have abhorred this. The right to practice religion is not supposed to give you special benefit simply because you invoke your belief in God. According to today’s ruling and the Obamacare ruling combined, if I didn’t attend synagogue, I wouldn’t be able to reject covering contraceptives for my employees. Is this freedom?
SCOTUS Left Open The Possibility Of Hiring Home Health Care Workers Directly, Then Unionizing Them. On Harris v. Quinn, leaving Abood intact means that the state of Illinois can find a way to charge home health care workers for union dues. The answer is simple: force the home health care workers to become state licensees, then provide payment directly to home health care workers predicated on the people for whom they care. That would bring them squarely within public sector employee territory.
Both Decisions Were 5-4. We were one vote away from the Supreme Court of the United States declaring openly that business owners have no religious rights in America, and that the government can declare you a member of a union even if you don’t work for the government. This is pathetic. The leftists members of the Court today argued in dissent that both decisions were broad – a way for the left to paint these decisions in a political light, to create impetus for a new Democratic campaign about the “war on women” or the “war on unions,” and to justify broad opposite decisions if and when Justice Kennedy retires and is replaced by a leftist.
Conservatives must recognize that the Supreme Court’s tidbits of good news today are no counterweight to its steady encroachment on Constitutional liberties. Leaning back on our heels, waiting for our supposed betters at SCOTUS to save us, is a recipe for disaster.
Ben Shapiro is Senior Editor-At-Large of Breitbart News and author of the new book, The People vs. Barack Obama: The Criminal Case Against The Obama Administration (Threshold Editions, June 10, 2014). He is also Editor-in-Chief of TruthRevolt.org. Follow Ben Shapiro on Twitter @benshapiro.