Doug Tice’s Freedom Over Uniformity Argument and Hobby Lobby

I have to respond to a commentary about Hobby Lobby’s fight to opt out of the health care law‘s contraception requirements that Doug Tice wrote for the Star Tribune.  Tice suggests that the case is “messy” because we generally favor “freedom over uniformity.”   And he argues that this conflict is “at the the core” of this fight now before the Supreme Court.  On the contrary, I don’t think that is the issue at all, at least not as Tice frames it.

English: The United States Supreme Court, the ...

English: The United States Supreme Court, the highest court in the United States, in 2010. Top row (left to right): Associate Justice Sonia Sotomayor, Associate Justice Stephen G. Breyer, Associate Justice Samuel A. Alito, and Associate Justice Elena Kagan. Bottom row (left to right): Associate Justice Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John G. Roberts, Associate Justice Anthony Kennedy, and Associate Justice Ruth Bader Ginsburg. (Photo credit: Wikipedia)

Tice takes this quote from Justice Elena Kagan as his point of entry into this argument.

“So one religious group could opt out of this, and another religious group could opt out of that, and everything would be piecemeal, and nothing would be uniform.”  — Supreme Court Justice Elena Kagan

Tice is troubled by Kagan’s “nothing would be uniform” conclusion.  He argues that the United States has put a priority on freedom over uniformity and I suppose that’s probably true.  But I think Tice’s reading of this argument misunderstands the tenor of Kagan’s comments, especially within the context of individual rights.  When people argue that if we start letting groups opt out of this or that provision of a law and in doing so cause everything to be piecemeal and not uniform, they’re not suggesting that they have, as Tice suggests, “a preference for a ‘uniform’ health care system for all”, they’re suggesting that people have the freedom to obtain the health care they want or need.

The Hobby Lobby case is a fine example of how the blurring of individual and organization rights affects the rights of real people.  We only need to ask, for whom or what are rights to be protected?  If we live in a society which values the rights of individuals — which I imagine likely jibes with most people’s notion of rights — then the answer becomes more clear.  It would be a sort of “my rights end where your nose begins” sort of a conclusion.   This is generally taken to mean that the rights of one person cannot come at the expense or harm of another.

Today, however, we live in a society where the rights of persons is blurred with the supposed rights claimed by organizations and corporations.  It is behind this sort of claim that the people running Hobby Lobby hide and where uniformity breaks down.

David Green, the founder of Hobby Lobby, argues that he opposes contraception as a matter of his personal religious belief.  That’s fine.  He doesn’t have to use contraceptives.  But his opposition to contraception should not impede the right of other people to exercise their right to use legal contraception.

Even if you take Hobby Lobby out of the equation, I think you have a problem with David Green’s argument, so he makes it Hobby Lobby’s issue, he makes Hobby Lobby an extension of himself and his beliefs.


English: Hobby Lobby store in Stow, Ohio

English: Hobby Lobby store in Stow, Ohio (Photo credit: Wikipedia)


Very simply, things get messy, as Tice suggests, in large part because the owners of Hobby Lobby — a public place of commerce and employment — do not want to provide some contraceptive services to Hobby Lobby employees.  After all it really it’s Green, isn’t it?  No body is denying that.  Hobby Lobby cannot have a religious belief, can it?  What does Hobby Lobby say about religion when you ask it about religion?  It’s absurd.  And how far does this go?

We should really be looking at uniformity of freedom and apply that freedom to people, not to things.  That’s the problem with believing a thing can have religious rights to protect.  And if ownership of a thing — such as a corporation — enables one person to extend his beliefs to the detriment of others’ rights, that is giving that owner rights that trump the rights of others.

If we start treating things as people and give them rights, we’re really giving priority to the rights of the people who own or control those things.  There would be multiple tiers of rights and that seems to me to be — by definition– nothing less than inequality.  That seems to me to both fail the uniformity and the freedom argument that Tice suggests.

In the end, however, the fight to protect the integrity of the health care law is not to protect the law, but to provide uniform access to the benefits of the law.  It is a question of individual rights and I feel strongly that those rights should indeed be uniform.

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