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[REV. DR. C. WELTON GADDY, HOST]: Welcome back to State of Belief Radio, I’m Welton
Gaddy.
A lot of us chuckled at presidential candidate Mitt Romney’s exasperated assertion that
“corporations are people too, my friend.” But now it’s no joke: that premise is likely
to be tested in a new and frightening way this coming week as the Supreme Court of the
United States hears oral arguments in the Hobby Lobby case.
Joining me now to discuss what could come out of this is Dr. Jay Michaelson, always
a knowledgeable voice on attempts to redefine religious liberty in this country.
Jay, welcome back to State of Belief Radio!
[DR. JAY MICHAELSON, GUEST]: A pleasure as always, Welton.
[WG]: You’re going to be at the Supreme Court for this case. Are you excited or worried?
[JM]: I gotta say I’m worried. Observers in the court think this is going to be a very
close case. The so-called “religious liberty” movement really had the wind knocked out of
it in Arizona, with the defeat of the turn-the-gays-away bill; but the odds are, we may lose this one.
And I think a lot of folks are not aware of how significant this case could be for all
of us in America.
[WG]: I want you to give all of us a quick overview - but I also want to make a comment
before you do, because if anybody is just listening, kinda, they really need to listen
fully at this moment; because, in my opinion, I think in yours too, this case is a game-changer.
Given the wrong decision here, we’ll be looking at religious liberty through an entirely
different lens, and be going a direction this nation has not gone since its founding.
[JM]: Well, that’s absolutely right. You know, everybody’s in favor of religious
liberty, right? So, nobody’s on the opposition side to that. The question is, what the parameters
of that are: whether I can use my religious liberty not just as a shield - against others
or against the government - but as a sword, to actually take away other people’s rights.
That’s the first major question of Hobby Lobby: whether religious liberty is a sword
as well as a shield.
The second question is whether corporations, like you said, corporations not only are people,
but do they have souls? Are corporations going to go to either heaven or hell? Can they sin,
or can they be saved? Which sounds like a joke, but that’s actually the premise - the
second major point of Hobby Lobby.
Hobby Lobby is a huge corporation. They have 21,000 employees and 550 stores around the
country. They are owned by a sincerely devout religious family that has particular religious
views that nobody is criticizing or calling into question. But they believe - the owners
believe - that their religious beliefs should now be imputed onto the company. And so as
a result, the company shouldn’t be required to provide contraception coverage as part
of their insurance plans under the Affordable Care Act or “Obamacare.”
This is a huge change. So right now, already, Obamacare has exemptions for churches, for
religious organizations, and even organizations that are just religiously-affiliated - so
if you run a hospital, a Catholic hospital, for example, you don’t have to provide any
kind of health insurance, necessarily, for your employees. The question now is whether
that exemption also applies to corporations - whether corporations have a conscience,
and if so, whether that conscience can be used as a sword agains the rights of their
employees.
[WG]: You wrote in the “Forward” about Hobby Lobby, about how it pits religious liberty
against reproductive rights; and I’d like for you to talk about that part of the argument.
But I want you also, if you will, to go beyond it, because whatever the ruling is related
to reproductive rights here has implications for all of the cases related to religious
liberty.
[JM]: Absolutely. And let’s make no mistake: this is actually religion versus religion.
It’s not as though it’s just religion versus some secular human rights claim on
the other side. For example, in my religion, Judaism, contraception is fully acceptable.
There’s no teaching against contraception in the Jewish tradition. And in fact, by the
way, about 80% of Americans think that there’s absolutely no problem with contraception.
What Hobby Lobby wants to do is make their owners’ religious beliefs trump the religious
beliefs of all of their employees. So if I’m a practicing, believing Christian and working
at Hobby Lobby, and I believe that contraception is a morally correct choice for me - the owners
of the company want to make that decision for me. They want to take away my rights to
make a religious decision and supplant it by their religious decision. And as you point
out, this doesn’t just apply to birth control, contraception - this also can apply to anything.
So if a corporation can choose not to obey the Affordable Care Act, well, they should
be able to not obey non-discrimination laws. So this is really the same case that we saw
in Arizona with the turn-the-gays-away law that was vetoed by Gov. Jan Brewer. If a company,
a large company - let’s say McDonald’s, or Burger King, it could be any large corporation
- has owners who have a particular religious view, what Hobby Lobby is arguing is that
that religious view could get them out of any law - any law at all, including non-discrimination
law. So turn the gays away, or turn the Jews away, or turn the mixed-race couples away
- whatever someone believes violates their religious conscience - their corporation,
not just them individually - their corporation could then get out of all kinds of laws on
the basis of this.
[WG]: Jay, how did we get here - where an individual’s religious conscience can be
overruled by a corporate religious conscience? How did we get here?
[JM]: Well, you know, the main answer to that is a whole lot of skillful money and resources
from a small group of very conservative Catholics, and some Evangelicals who are aligned with
them - conservative Evangelicals, that is. There has been a tremendous amount of money
going into organizations that listeners may not have heard of, like the Becket Fund, the
law firm that’s putting forward this case; the Alliance Defending Freedom, formerly known
as the Alliance Defense Fund. These organizations are working in the courts and in legislatures
around the country to redefine, just like you said at the top, religious liberty, and
to say that my religious liberty allows me to bully another person, or to shame another
person, or to deny access to health care to another person - and that’s really how we
got here.
I would just say as a footnote, you know, this is a tricky case because it’s also
about Obamacare, and even though it has these consequences that go far beyond that context,
the reality is this is not a Supreme Court that’s a big fan of Obamacare - the Individual
Mandate itself just barely survived, really, on a technicality, in that case - and this
is a Court that has been willing to find rights for corporations, as evidenced by the Citizens
United case about corporations having free speech rights, which was why Mitt Romney could
say that corporations are people. So those footnotes make this an even harder case, and
one that we should all be quite worried about.
[WG]: This past week, I was happy to sign on to a statement from the Religious Institute,
along with many other diverse faith leaders, demanding freedom of conscience for those
Americans who do not believe contraception to be against their values. In fact, there
are many moral arguments to be made in favor of deliberate reproductive decision-making.
Share some of your thoughts about that, Jay.
[JM]: Well, I only wish that I could put a megaphone in front of what you just said,
and that petition that the Religious Institute put around. You know, it’s like deja vu
all over again: we’re seeing the Right is depicting this as religious people on one
side, and anti-religious people on the other - and thats just not true. There are a number
of important, positive religious values around family planning - not least the impact of
what it’s like to bring a child into this world if you’re not prepared financially
or emotionally, or in a relationship, if appropriate, to raise that child properly.
And the idea that sometimes you hear, well, this is only about insurance coverage - you
could just go out and buy contraception; you don’t need insurance coverage for it. But
that’s not true! Contraception can run between $500 and $1000 a year - and that’s a significant
amount of money for folks who might be making, before taxes, thirty or forty thousand dollars
a year. So it really is, who has the right to make your ethical and moral health care
decisions. And people of faith who don’t want their bosses making those decisions for
them should be outraged by the arguments that Hobby Lobby is putting forth.
[WG]: Jay, you’ve written extensively on this concerted effort to redefine religious
liberty. Help our listeners understand what some of the possible outcomes could be from
this Hobby Lobby case, depending on what the Court decides.
[JM]: So, I’m going to answer in what may seem to be a roundabout way, but it’s not.
30 years ago, the Court had a case from Bob Jones University, which originally barred
African-Americans from applying, and later changed that policy but still barred interracial
dating, and had separate housing - basically had segregation into the 1970’s at Bob Jones
University. The Court said that the IRS could take away Bob Jones university’s tax-exempt
status; that you can’t discriminate in the name of religion. Imagine if that case had
gone the other way.
Imagine if Bob Jones University were allowed - today - to maintain a racially segregationist
policy at their university, and still function as a tax-exempt charity. The landscape would
be completely different.
This is the same argument that we’re facing now. If Hobby Lobby and other large corporations
like it are able to exempt themselves from Obamacare on the basis of religion, they’re
going to be able to exempt themselves from other kinds of laws as well. And it’s hard
for me to see, as an attorney, it’s hard for me to see what the distinction would be
between this case, and another case that comes down the line that does say, let’s say,
I believe that intermarriage is against my religion, therefore I won’t let any multifaith
couple stay at my hotel; or anything - you know, I’m a Muslim and I will not allow
someone in my taxicab to be drunk or to be intoxicated, so I’m going to be able to
refuse people on whatever basis that I want based on my religion. This just isn’t really
how democracy works, and yet we have gotten to the point where it may actually be validated
by the Supreme Court.
[WG]: Jay, is this case the tip of the spear in the culture wars right now? Where else
of you see religious liberty language being misappropriated?
[JM]: Well, not surprisingly, it’s used in the same old fronts of the culture war
that it’s always been used in, right? There are some who say this is about religious liberty
- this is not about religious liberty. This is about fighting the culture war, using this
as a tool to do so. So the main fronts are reproductive rights - contraception, abortion,
and so forth; and LGBT rights - marriage equality, non-discrimination, and so forth.
The same kind of language that’s being proposed in the Hobby Lobby case was in the turn-the-gays-away
bill in Arizona: that if a corporation’s owners profess a religious belief, that you
couldn’t sue them for discrimination, you couldn’t sue them for anything else. And
this is - you know, is it the tip of the spear, or is it the rear guard, the cannons at the
back? The arch-conservative Right has lost the battle - not just legally, but culturally
as well. There are people of faith all around the country who believe that their faith compels
inclusion and acceptance, not just that it’s okay to be gay, but that it’s actually a
positive moral value to build a world filled with love and inclusion and acceptance.
So they’ve lost the battle, and they’re now trying to carve out spaces where the democratic
process doesn’t apply. And we saw this in the 1970’s and 80’s, and now we’re seeing
it all over again.
[WG]: Jay, are the justices that sit in that high court as in touch as they ought to be
with the far-reaching effects of this case?
[JM]: You know, I generally would say that they are. I think the justices are always
looking toward the future; I don’t think that they’re going to blunder into this
decision, however it goes - and this is really going to come down to the moderates; it’s
going to come down a lot to just Justice Kennedy. And so you look at his record on these kinds
of issues. He tends to try to find some kind of a middle road, but it’s tough that all
of our hopes for liberty are basically riding on someone who doesn’t usually find expansive
definitions of liberty.
No, I don’t think they’re going to blunder in ignorance into this. Folks said before
Citizens United that that case would be a game-changer, an that case was a game-changer:
we saw a billion dollars of corporate money enter the political world after that decision
came down. It actually did - I wouldn’t say that the sky fell, exactly, but it did
permanently change, at least so far, to the present day - it changed how politics is.
There’s a lot more super pac money, there’s a lot more negative ads, there’s a lot more
corporate voices out there in the political space. So I think as they go into this, they
will see the change - they may just want to see that change.
[WG]: You know, ordinarily I would ask you how you think it’s going to come out. I
think I won’t do that, because we began by you saying you’re afraid. I’m afraid.
This one is almost too important to guess. A lot is at stake; and Jay, you have helped
us again, as you always do.
Dr. Jay Michaelson is an author, activist and public speaker. He has great insight on
matters of religion and society. You may recall he’s the author of “God vs. Gay: The Religious
Case for Equality,” among other books. You can follow his work at jaymichaelson.net.
It’s always great to have you on the show. I hope that you’ll let us come back to you
on a follow-up, maybe even before we get the ruling, but certainly at the time of the ruling.
You’re always welcome right here on State of Belief Radio.
[JM]: Thank you, Welton. And I’ll put in one little quick pitch right here at the end,
which is that Catholics for Choice is holding a rally right on the steps of the Supreme
Court, starting around 9 in the morning. Everybody is going to be there from both sides, and
we really need faith progressives to come out in force and in numbers to support justice
in this case.
[WG]: I will just say, you’re exactly right, and I hope some of our listeners will be there.