Monthly Archives: July 2014

Hobby Lobby

Now, before you all lose your collective shit, I want to remind everyone of one critical fact:

The Supreme Court doesn’t exist to make the morally right decision.

I’m going to repeat that, blockquote it, and bold the damn thing because it’s that important.

The Supreme Court doesn’t exist to make the morally right decision.

Now, I know that this may come as a shock to most of America. But then, Americans have never exactly had a good grasp of civics. In fact, some of the worst law comes from the Supreme Court trying to work a moral decision into the law. When you already know the outcome you want, and you start looking for any legal justification you can muster for that outcome, you’re bound to stretch in the wrong places.

No, the Supreme Court exists to make the legally right decision. And no matter your view on Obamacare, the mandate, religious liberty, and contraception, I think the Court in this case made an entirely justifiable decision that is consistent with the law.

Let’s break it down.

  1. Congress has declared in the ACA a compelling government interest in ensuring that women have insurance coverage for contraception.
  2. They have created a national health insurance mandate forcing employers (of a certain size, etc etc) to cover the cost of said contraception.
  3. In 1993, Congress passed the Religious Freedom Restoration Act, which requires that laws which violate someone’s religious beliefs must pass two conditions:
    • The law must be furthering a compelling government interest.
    • The law must be the least intrusive method of accomplishing its goal.
  4. Congress has created an exemption to the contraception mandate. If the mandate violates the religious beliefs of certain types of organizations, they have passed the burden of cost to the insurance provider or to the government itself.

So what’s the takeaway? Nothing in Hobby Lobby decision will stop women from having access to birth control. In fact, the way the system is set up, they will still have insurance coverage for free birth control!

Congress’ exemption ensures that insurance will cover these costs, even for women working for Hobby Lobby. This cost will not come out of the worker’s pocket. In fact, the very alternative accommodation that Congress created was pretty much the only reason that the Supreme Court didn’t force Hobby Lobby to pay for the insurance (from Lyle Denniston’s analysis @ SCOTUSblog):

Is that enough of an accommodation of the owners’ religious objection? The two key opinions on Monday seemed, literally speaking, to say it was.

Justice Alito wrote: ”An approach of this type . . . does not impinge on the [companies’ or owners’] belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves [the government’s] stated interests equally well.” (The government’s interest here is to assure that women have access to the birth-control services.)

Alito’s opinion for the Court went on, saying that the dissenters’ on Monday had identified “no reason why this accommodation would fail to protect the asserted needs of women as effectively as the contraceptive mandate, and there is none.”

Justice Kennedy, in his separate concurring opinion, made the same point. And, in fact, he was more emphatic. Taking note of the “existing accommodation the government has designed, identified, and used for circumstances closely parallel to those presented here,” Kennedy said flatly that “RFRA [the Religious Freedom Restoration Act] requires the government to use this less restrictive means.”

It is rather difficult to read those comments by those two Justices as anything other than a declaration that religiously oriented owners of closely held companies must be satisfied with letting the “middle man” take on, in their place, the obligation to provide the birth-control coverage. That, the comments seem to say, is good enough.

If there was no alternative accommodation in the law to cover the cost of insurance for contraceptives, the correct legal result would have been to force Hobby Lobby to pay for it. After all, I don’t think any justice disputed the idea that an insurance mandate for contraceptive coverage was NOT furthering a compelling government interest. The only question was whether the compelling government interest was satisfied in the least intrusive means consistent with the RFRA. The Court found that it was.

Now, back to the lede. Many of you out there think that it’s absurd that a corporation would be exempted from providing basic health insurance because God says contraception is abortion. And many of the rest of you think that it’s unconscionable that someone be forced to pay for something that goes against their most closely held religious beliefs; in essence funding murder. And the libertarians out there worry that if the government can make you pay for something that violates one of your First Amendment rights, there’s nothing they can’t make you pay for. These are all moral questions. These are not legal questions. The Supreme Court didn’t even try to answer these questions.

The Supreme Court found a legally consistent way to accommodate the compelling government interest declared in the ACA and the least restrictive means test demanded by the RFRA. And at the end of the day, lest I repeat it one more time, the net result is that Hobby Lobby employees will still have insurance coverage for all the free contraceptives they care to use.

Seems pretty cut and dried to me. This is much ado about nothing.

UPDATE: Now that I’ve actually read the ruling, I see an error in the above. The HHS accommodation for employers who have religious objection to these methods of contraception TODAY only applies to religious non-profits. It doesn’t apply today to for-profits. The argument of the court is that applying the accommodation to for-profit employers is a less-restrictive means to achieve the compelling government interest than the mandate, and for that reason the mandate violates RFRA. I would expect the HHS to quickly expand their accommodation in response to this ruling.

FacebookGoogle+RedditStumbleUponEmailWordPressShare

Democracy != Consensus

As I’ve mentioned on several occasions, I work in the mainstream corporate world. One of the key aspects of any corporate environment is that in any decision, there are multiple stakeholders who are affected and may be responsible for implementing a decision, so there is a lot riding decision-making process.

As a result, and as it’s a large multinational company, significant resources are spent on training for both individual contributors and managers on all sorts of workplace topics. Decision-making, dealing with change, conflict management, and very simple things like “making meetings work” are all things that individuals and managers strive to improve.

And two concepts come up consistently when it comes to decision-making:

  1. Consensus.
  2. Buy-in.

Now, perhaps these sound to those of you outside the corporate world like throwaway terms, but if you’ve seen what happens when you don’t have them, you’d agree that these are absolutely key to keeping a well-running organization alive. Trying to implement a decision if you don’t have buy-in is a recipe for failure. It requires top-down authoritarian leadership, leads to resentment and infighting, and will turn a workplace dysfunctional over time. In a competitive market, these things will kill a business.

However, one of the key aspects to all of these training classes is that consensus is not borne of democracy. Voting on something might make a decision, but it by itself does not get you to consensus or to buy-in.

I’ll use an example. Let’s say someone’s birthday is coming up, and everyone (we’ll assume 11 people) is going to go out to lunch together. The question is where:

  • 4 of the people really want Mexican food and hate Korean BBQ.
  • 4 of the people really want Korean BBQ and hate Mexican food.
  • The three remaining people are lukewarm to both and don’t really care.

In a democratic choice, the decision will be whether to go to Mexican or Korean BBQ, and the decision will hinge specifically on the people who care the least. No matter what decision is reached, 4 people will be angry and will feel like they’re being ram-rodded into something they don’t want to do. It’s the tyranny of the majority, and it’s a completely dysfunctional way to make decisions.

Can you imagine that those 4 will be a bit surly at lunch? And when the bill comes due, who do you think might be the most likely to just be a “dollar or two short” or will scour the bill for their share saying “well I just had water, so we should each pay our share rather than splitting it equally.” People who do that are annoying enough as it is; bringing people who are angry to be there in the first place will only exacerbate the problem.

What’s a better way to do it? To discuss, to make sure everyone’s concerns are voiced, and to arrive at a decision that’s mutually agreeable. Often that might not be Mexican food OR Korean BBQ. It might be the hip new Peruvian joint that people have been dying to try. It might be Chili’s . But you work to find a solution that everyone can feel comfortable with, or you will have a crappy lunch despite the fact that some people “won”. That doesn’t mean consensus is easy. In fact, it’s far from it. But it’s absolutely key to keeping an organization–or a country–running smoothly.

Now ask yourself — how is our political system set up to work? Via democracy or via consensus?