Religious Liberty, Right-to-Work Decisions @ SCOTUS

images(photo credit:

The US Supreme Court today delivered its rulings in the two cases that ranked among the biggest legal “blockbusters” for this term: Burwell v. Hobby Lobby and Harris v. Quinn.

The Hobby Lobby decision involved a particular provision of the ObamaCare law that mandated US employers provide birth control free of charge to their employees. The Green family, which owns the arts and crafts store Hobby Lobby, sued the government arguing that this section of the law violated their religious liberty under the First Amendment and the Religious Freedom Restoration Act of 1993, which states that if the government is going to infringe on core religious expression it must have a “compelling government interest” and act only in the “least restrictive way.”

And while Hobby Lobby doesn’t oppose all contraceptives (their employee insurance plans cover most varieties), the company specifically abstained from covering certain medications that it believes induce abortions, such as Plan B.

On a 5-4 decision, with the four so-called conservative justices plus swing vote Anthony Kennedy, the Court agreed with the Green family and the other plaintiffs in the case that the contraception mandate went too far in burdening closely-held companies with threat of either violating the owners’ religious conscience or violating the law.

Unfortunately, the decision apparently leaves open the opportunity for the Obama administration to create a government program that directly distributes birth control at taxpayer expense.

This and other factors have prompted some Republicans, most recently Colorado Representative and US Senate candidate Cory Gardner, to float the idea of legalizing the sale of contraceptives over-the-counter so as to appease both factions in the debate.

The decision does not grant such religious exemptions to publicly-traded companies. It only applies to “closely-held” corporations like sole and joint proprietorships and nonprofits.

In Harris v. Quinn, an Illinois law that conscripted home health care workers into public sector sector unions, or at least forced them to pay union dues, because, the state argued, all medical providers compensated with Medicaid funds count as “public employees” and thus obligated to be represented exclusively in union collective bargaining agreements.

The court again split 5-4 in a decision which distinctively separated Medicaid reimbursement recipients from actual public state employees, arguing that private patient assistants are responsible solely to their customers, not to the state. In so doing the justices have invalidated about a dozen and a half other similar state laws around the US with similar inclusions of home health care workers.

And while the Court’s decision has liberated many thousands of PAs from compulsory union representation, many had wished, or feared, that the it would have gone farther and invalidated all mandated collective bargaining schemes as unconstitutional infringements on First Amendment-protected rights to free association and expression. However, the highest judicial body in the land may be gearing up for such a case in the coming term(s) and plenty of pro-Right-to-Work litigants are eager to test how far they can push the justices in that direction.

The pointless symbolism of “Add the Words”


(Photo credit: Idaho Statesman)

It should be considered a mandatory lesson to learn that any political movement that thinks writing down words on parchment paper will end bad behavior, real or imagined, is one that is destined for failure and disappointment.

Enter the “Add The Words” movement in Idaho. This group of gay rights activists takes its name from its goal to “add the words” of sexual orientation and gender identity to the Idaho Human Rights Act. Currently, state law only prevents against discrimination based on age, disability, race, color, national origin, religion, and sex.

It has garnered a large following from the state’s LGBT activist community, young liberals, journalists and commentators, and Democratic politicians. It has a Facebook page with over 5 and half thousand “likes” on Facebook, and even has a crowd-funding Indiegogo campaign to fund a documentary on their struggle. The preview plays a voice over of and shows cutaways to Ronald Reagan speaking over images, a shrewd move in a state that delivered all of its 44 counties to the 40th president both times.

While watching the preview, I noticed that most of the cutaways featured the Statehouse, politicians, marches, banners, and, predictably, protesters holding their hands over their ideas symbolizing how they’ve been “silenced.”

The only thing that seemed to be missing from the video, and the movement at large, is any seeming understanding about the world outside of the Statehouse dome.

Most people wake up, drive their kids to school, go to work, grab a beer with their work buddies, and have dinner with their families. No where do you see any of this, save for a cutaway to a lesbian couple in what appears like a marriage ceremony. And yet, none of this seems to register for the activists, who seem to be convinced that once the few magic words of “sexual orientation” and “gender orientation” are written down on parchment paper, poof!, all homophobia and transphobia will have ridden out on the frontier like the end of John Wayne western movie and disappeared.

There’s only one problem: Government’s laws doesn’t win hearts or change minds, no matter how punitive the penalties. The tough work of changing societies happens in our everyday lives in everyday ways. The state “adding the words” against homophobia will no more make society less so than the state “adding the words” against marijuana usage will make society use less of it.

Indeed, robust empirical study has been done of anti-discrimination laws in private business and most have shown that either no noticeable effect, or slight or noticeable negative effects. This shouldn’t be a big shock to those who understand the pesky and persistent laws economics. When governments add burdensome liabilities to employment like arbitrary minimum wages or anti-discrimination laws (especially ones that go further than discriminatory motivation and ban any unequal impact), which raises the marginal cost of employees without increasing their marginal value, employers find creative ways to avoid hiring them because it is in their interest to do so.

This has been the tragic legacy of many, though not all,  anti-discrimination and equal pay laws.

However, it should also be pointed out that the very goals of Add the Words indicates they have absolutely no faith in people to change to do the right thing without the threat of government coercion. The great 19th century French commentator and author of the classic Democracy in America, Alexis de Tocqueville, said a man’s love for absolute government is directly proportionate to his disdain for those around him.

Apparently, it’s not enough that 80% of Idahoans already “believe that no one should be fired from their job because they are gay, straight, or transgender,” as the group’s own website says. If that many citizens already have embraced the LGBT community without “adding” any symbolic words, why all the fuss when it’s likely that that number is only going to increase?

The reason, sadly as for so many for self-righteous nonsense, is that pointless symbolism trumps substantive action–or principled non-action–in contemporary American politics. This is why the House of Representatives have repealed ObamaCare 40-45 some odd times (although it could be hundreds now. I have no idea), and why when the Republicans took control of the lower chamber in 2011 they engaged in the pathetic and stupid act of reading the exact text Constitution (save for the parts about human slavery) on the House floor.

It’s why the extent of Barack Obama’s sad agenda is further restricting liberty of contract by making low-income minority youth unhirable through his arbitrary minimum wage increase of $10.10.

It’s why politicians from both parties in elections, when discussing anecdotal stories about those who have been negatively or positively affected legislation, just happen to always give examples of people in swing states.

It’s why Democrats keep pushing bullshit “assault” weapon bans, even though only a tiny fraction of gun homicides occur from them and evidence from the first one showed no measurable impact.

It’s why Congress always passes meaningless legislation demanding the president “stand with” Israel, or the Republic of Georgia, or Ukraine, or the Syrian rebels (even if they’re with al-Qaeda), so they can grandstand at AIPAC or other hawkish conventions.

And it’s why it doesn’t matter if 4, or 5, or 10, or 80, or 100,000 words are added the Idaho Human Rights Act or any other piece of existing state or federal statutes.

The positive but unromantic, uninspiring truth is society is getting more tolerant and accepting of gays, lesbians, and transgendered people all the time, all on its own. Previously marginalized groups are enjoying a renaissance of acceptance and that is all for the good.

So rather than pursuing meaningless legislation that will have little-to-no positive impact on employment and housing, etc., and unnecessarily delegates more power to the state and away from citizens to decide their own associations, LGBT activists should refocus on issues that really will make a positive difference, like repealing Idaho’s discriminatory same-sex marriage law or expanding school choice and educational freedom so parents can take their bullied gay kids out of hostile environments and put them in good ones.

Pursuits like that, and not adding meaningless words that creates more problem than they solve, is the way to truly help those most marginalized in society.

File under “take your own advice”

George Mason University economics professor Don Bourdreaux blogging over at Cafe Hayek (a crackerjack site if you haven’t already checked it out in the “Sites I Like” section) has some good advice for left-liberals who want private companies to start instituting some Orwellian-sounding thing called “unconscious-bias training.” He writes in a post which initially was a letter to a Wall Street Journal article on the matter:

You report that increasing numbers of U.S. firms insist that their employees undergo “unconscious-bias training” in order to rid employees of any harmful yet hidden prejudices that they might bring into the workplace (“Bringing Hidden Biases Into the Light,” Jan. 10).

It’s well and good that “diversity experts” are paid to raise employees’ awareness of their unrecognized biases against people of color, against young people, against old people, against obese people, and against people who graduated from different colleges.  But why not expand “unconscious-bias training” so that “Progressives” themselves can personally benefit from the exercise?

How about “unconscious-bias training” to raise “Progressives’” awareness of their own bigotries – such as their biases against successful entrepreneurs and investors, against consensual capitalist acts, against people who oppose social engineering, and against those of us who sense that programs such as ”unconscious-bias training” smack less of useful worker training and more of “Progressive” indoctrination?

As the first line of your report reads, “Everyone has hidden biases.”

Donald J. Boudreaux