It was perhaps inevitable that following the Supreme Court’s Citizens United decision which solidified the claims of corporations to “enjoy” rights that liberal democracy has been trying to bestow upon people, that some such person-like entity would claim that his (or her?) right to practice religion is violated by government’s efforts to make sure all people are treated equally and fairly. Indeed this has happened, as Ian Millhiser reports on ThinkProgress¸and a US Court of Appeals has lent credence to her (or his?) case. The effort to help insure that people are treated fairly in question is the provision in the Affordable Care Act (the ACA, which I’ll pass on referring to by its pejorative name even though I think it’s bad legislation) that employers of more than 50 people must provide health insurance to all their full-time employees, and that said insurance needs to meet a number of various criteria so that people need not worry excessively about their inability to pay for basic healthcare, and among these criteria is a mandate that certain forms of birth control that are commonly administered as health care service be included.
There are many good, sane reasons why this provision makes sense: birth control is commonly utilized by a vast majority of Americans, particularly women who, because of biology, bear the consequences of not using it; the cost of birth control is much higher for women than for men and women are generally more reliable users of it when it is available; alternatives to providing birth control outside of the medical system are there, but tend to be less reliable and more dangerous; easy access to birth control is the simplest and most cost-effective way to minimize unwanted pregnancies and abortions; birth control for women is inextricably linked to many facets of health care in addition to preventing pregnancy. There are more, I’m sure, but these alone constitute some very compelling reasons why the people, acting through the state, are justified in making sure that access to birth control, for those who choose it or need it, is available to as many people as possible – especially women.
But as we all know, the Catholic Church right away got his (or her?) panties in a wad because she (or he?) thought that his (or her?) right to object to other people using birth control by refusing to associate herself (or himself?) with it by not allowing any expenditure for it in the paper trail that follows from his (or her?) engagement in whatever business practice they are in was being violated. I apologize for the excessively confusing language here, but the plain fact is that this objection is, by any objective standard, pretty obtuse. They are not being asked to go out and buy birth control pills for anyone; they are only being asked to provide a comprehensive health-care plan for people they employ, and, like it or not, many forms of birth control are almost universally considered part of human health care. I also apologize for the excessive use of parentheses to allow for ambiguity with gender-specific pronouns – I know this is a common problem for our antiquated language, but seriously, help me out here: if corporations are people, what gender do we use to refer to them? Do we just follow our antiquated custom and generally assume they are male unless a vote is taken in which a majority of shareholders declare that she is, in fact, a female corporation? But I’m getting ahead of myself. I’m sufficiently open-minded enough to accept gender ambiguity anyway.
The case that came before the Seventh Court of Appeals didn’t involve the Catholic Church, however. It involved a public construction company that is mostly (88%) owned by a married couple, Cyril and Jane Korte, K & L Contractors. I don’t know if the contracting they do mostly involves building churches and orphanages and soup kitchens and the like, but they do claim that they operate their business in accordance with their religious beliefs. That’s fine – more power to them, in fact. And if, as employers, they had a policy of forcing their employees to use birth control out of a religious belief that all mothers should not have jobs so they can devote all their time to motherhood, I’m sure that many other powerful religious institutions and individuals, including, I’m guessing, the Korte’s, would rightly cry foul. But of course that’s not what’s going on here (although it’s close.) The Korte’s – or, specifically, the “person” of K & L Contractors – is claiming that his (or, again, her?) right of religious freedom is being violated because she (he) is being forced to subsidize the behavior of another person, behavior that he (she) finds religiously objectionable. Since religious freedom is a pretty basic and important thing, let’s be clear about this claim: they (the Korte’s; we could address our friendly gender-neutral but religious freedom-craving “individual” here, K & L, but for now, let’s keep it simple and say “they,”) are not being forced to take birth control themselves, nor are they compelling anyone else to take birth control. That would be a pretty obvious violation not only of religious freedom but basic civil liberties and common decency. Their objection is that by providing health insurance that offers coverage for people to get birth control in a health care setting they are somehow linked to this evil practice – by the aforementioned paper trail, to be exact. In colloquial terms, they are being compelled to “pay for” a third party to violate their (the Korte’s, not the third party’s) religious beliefs. That compulsion, they argue – successfully in this case – is a violation that outweighs the interest of the people to provide comprehensive health care to employees of any company employing at least fifty. What I’m not clear on from my research is that if an employee on her own – sans coverage – goes out and buys birth control with the money she earned working for K & L if that would constitute a similar religious violation over which the company may terminate the employee for forcing the company to be associated with that oh so messy business of real life. Seriously, should employers really be expected to just give their employees wages without any method to insure that the employee won’t use it to some evil end? What would the world come to?
But yes, unfortunately the Seventh Court sided with the Korte’s, and for now, they’re exempt. It is an instance in which our courts are using some extremely twisted logic to undermine the efforts of democracy and common decency. The twisted logic, in this case, is twofold: 1) that there is a “person” who’s religious practice is being infringed upon, and 2) that the payment of money to support someone else making decisions constitutes a violation of religious freedom. This second point is one I’m very glad to know about, for it means that I can simply begin deducting from my federal income tax the appropriate percentage of funds used by the government to build and deploy intercontinental nuclear warheads, maintain illegal military bases in other countries, invade and destroy less developed countries, murder foreign enemies by unmanned drones, etc. These are all violations of my religious principles, and boy am I relieved to know that I no longer have to support these atrocities through my tax dollars. Wow – having a religious conscience winds up saving me a lot of money! Same is true for the State of Washington’s use of the death penalty – I can’t wait to go to the store and pay only that portion of the sales tax that is not used for anything I find religiously objectionable and see the look on the clerk’s face. What a great country we live in! Oh, wait, I won’t get away with that. Why not? Because the idea that “my” money should not be used to fund anything I find objectionable is a pipe dream. It’s never been the law of the land, and should never be. The only time I hear of it being taken seriously, in addition to the above scenario, is for the government funding of abortions. It seems as though the only religious principles that are strong enough to extend into paper trails are those “religious” principles that, curiously, only apply to women having autonomy over their bodies. Religious principles such as “thou shalt not kill” are apparently so far down on the list that we need not worry about our implication in them, especially when the victims of such violations are mostly poor, brown-skinned people in faraway lands or neighborhoods.
Boy, do I hate it when people use terms like “religious freedom” to mean “political bigotry.”
The other twisted logic, that entities like K & L Contracting are people, is, of course, poppycock. They aren’t. Our Constitution, which has been dragged through the mud by the more powerful trying to control the power of the people in court cases ranging from the 1886 Santa Clara County case to 2010’s Citizens United, will be amended soon to stipulate that the rights enumerated in the constitution apply only to real, living persons. If the state decides it is convenient from a legal perspective to treat corporations – private or public, for-profit or not – as if they are persons for administrative purposes, there is probably little objection to that. But that does not imply that because they are treated like persons administratively that they are in any way entitled to the human rights enumerated in our Constitution. To do so is a savage affront to the integrity that our founders put into the Bill of Rights, and indeed all people who gave their lives to the broadening of liberal democracy and a government of, for, and by the people. It is also, as when two people’s rights come into conflict, an attack on the security of these rights of the less powerful by the more powerful. Our government and our constitution exist primarily to protect the relatively less powerful, and we are sorely in need of a reminder of this principle – one of the few over which I’ll give my life if necessary.
What does that mean for K & L Contractors? I can only speculate as to why Cyril and Jane Korte decided to incorporate their “family run” business into a corporation, but I suspect it had something to do with accounting practices, taxes, liability, and profitability. They probably reap many benefits by being a corporation rather than individual proprietors, and judging from the fact that they apparently have more than fifty nearly full-time employees, I suppose they have. Fine – more power to them (notice a little tongue-in-cheek here, I hope?) If they were individual proprietors, then they’d probably still claim rights violations according to twisted logic number two, but they would be thrown in jail if they attempted to withhold money from their taxes if they, following my suggestion above, decided that religious infringements in which the victims are ten-year-old girls attending family weddings in Afghanistan, for example, were as important as those which victimize poor, innocent spermatozoa. But they – or, more accurately, he/she/it/whatever K & L Contracting is – is not an individual person who craves the liberty enshrined in our Constitution. It employs over fifty people, and law in our liberal democracy stipulates that the community is better off, and the vulnerable better protected, when health insurance coverage includes those items most needed by the majority of our citizens. The corporation, of course, could be much larger than fifty employees – fifty is a more or less arbitrary number in the new law, a necessary line in the sand to determine at what point an employer has enough influence to actually effect the well-being of the community they serve that it be compelled to do so in a consistent way; consistent with other corporations, and with the law of the land.
I’ve heard some people say in response to this scenario that the employees – if their employer doesn’t comply with the contraception provision – can simply find other jobs. I find these comments to be the most ignorant of all, and are likely made by those who, by some combination of good fortune and hard work, have never been in a position of needing a job when jobs for which they are qualified are scarce. We live in a world in which most people feel lucky to have a job, and luckier still if the job they get is one that pays well enough for them to make a decent living, is located reasonably close to home and family, doesn’t involve anything that is a threat to their physical or bodily health, is not terribly degrading or dehumanizing, includes benefits so that they need not worry excessively about tragedy striking, is one they are well-suited for and can do well, and one that will lead to more diverse job opportunities in the future. Sadly, I know all too many people who have to make compromises in one area or more, and those making these comments want to add to that list that the job needs to come from an employer that doesn’t have any religious objection to the provision of basic benefits. All to spare the employer the very minor discomfort of knowing that the security they are offering their employees in exchange for their work is not necessarily one in which they’d choose for themselves.
Who was it that said “Let them eat cake?”
If this case is upheld as the law of the land, it will, tragically, be one more instance of the wealthy and powerful hijacking the spirit of human rights to maintain their dominance over the less fortunate. How very sad. How very important that we Move to Amend!