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Symposium: No free lunch, But dinner and a movie (and contraceptives for dessert)?

Dr. Eastman is the Henry Salvatori Professor of Law & Community Service and former Dean at Chapman University’s Fowler School of Law.  He is also the Founding Director of the Claremont Institute’s Center for Constitutional Jurisprudence, which filed an amicus curiae brief in the Hobby Lobby case.

Others in this symposium have already parsed the Court’s decision in Burwell v. Hobby Lobby Stores, Inc., its application of the Religious Freedom Restoration Act to closely held corporations, and what the decision portends for the so-called accommodation for groups like the Little Sisters of the Poor that is currently being litigated.  I want to focus on the reactions to the decision, for the vitriolic criticism and outright lies that have been leveled against the Supreme Court’s holding are eye-opening.  No doubt egged on by Justice Ginsburg’s own false claim in her dissent that the decision “would deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage,” pro-abortion groups have accused the Court of preventing women from having access to birth control and of giving bosses the power to force their personal beliefs on their women employees.  Another entry in this symposium claims that the decision was “stunningly bad for women’s health and starkly dismissive of women’s own religious beliefs,” giving corporations “a license to discriminate against their female employees by overriding those employee’s rights to contraceptive coverage.”  The New York Times even editorialized that the decision granted “owners of closely held, for-profit companies an unprecedented right to impose their religious views on employees.”  And that’s just the reaction from the mainstream left.  The fringe left was utterly unhinged, among other things contending that Hobby Lobby is now worse than the Taliban in trying to impose its religious views on others.  In truth, the Court’s decision does not allow the Green family (Hobby Lobby’s owners) to impose their religious views on anyone, and it does not prevent any woman from obtaining contraception or abortion services.  It only holds that an employer is not obligated to pay for those services directly out of their own funds, and then only if the employer is a closely held corporation whose owners have a sincerely held religious objection.  That should hardly be controversial.  Indeed, it is a relatively narrow decision that invites us to ask the much more profound question why it is that employers, whether religiously scrupulous or not, are being forced by the national government to provide “free” benefits at all.

The benefits are not free, of course, and only the most economically illiterate can think that they are.  There being no such thing as a free lunch (or, in this case, après-lunch contraceptive protection), someone has to pay for them.  If not the individuals who use them, then the employer, and the employer’s purchase of such benefits either comes out of the employer’s pocket by way of reduced profits, or is passed through to third parties – the employer’s other employees, perhaps (through reduced wages), or the employer’s customers (through higher prices).  In an earlier time in our nation’s history, that principle was much better understood.  In the landmark decision of Calder v. Bull two centuries ago, for example, the Supreme Court cited “a law that takes property from A and gives it to B” as an example of “An ACT of the Legislature (for I cannot call it a law)” that “cannot be considered a rightful exercise of legislative authority” because it is “contrary to the great first principles of the social compact.”  When the Supreme Court issued its infamous decision in Kelo v. City of New London, Connecticut a decade ago, that “great first principle of the social compact” had been relegated to Justice O’Connor’s dissenting opinion on the losing side of the five-four split decision, and now it appears to have disappeared from the legal landscape altogether.  Happily, judging by the counter critiques making fun of the “free contraception” argument, it has not yet disappeared from the citizenry.  My favorite:  “My Jerk Boss Won’t Pay for My Groceries! I’m Going to Starve!” over at, although a tweet from someone named Sean Davis is certainly a contender:  “Get your politics out of my bedroom!”  “Not a problem.  I’m just going to grab my wallet before I leave.”  “The wallet stays, bigot.”

As Charlie Brown would say, “Sigh.”

Here are some questions for further reflection that were not resolved or even addressed by the case, but perhaps should have been:

1)    Because the employer mandate is a forced transfer of wealth from “A” to “B,” does it even qualify as a “tax,” which was essential to upholding the individual mandate two years ago in National Federation of Independent Business v. Sebelius?

2)    If not a tax, is the contraceptive mandate constitutionally permissible as a regulation of commerce among the states, despite the holding in N.F.I.B. that the individual mandate was not a constitutionally valid regulation of interstate commerce?

3)    If neither a tax nor a regulation of interstate commerce, can the contraceptive mandate be upheld as an exercise of Congress’s power under Section 5 of the Fourteenth Amendment, even though Hobby Lobby is not a state actor?  And even assuming it could, would any equal protection claim vanish if male potency treatments were also excluded from insurance coverage?

4)    Assuming there actually is some constitutional authority for this mandate, why should the exemption the Court has now recognized be limited to the sincerely held religious liberty claims of owners of closely held corporations?  Why not broadly held public corporations, if the corporate bylaws make religious views a governing part of the corporation’s purpose?

5)    Come to think of it, why should the exemption be limited to religious liberty claims?  Why not other claims of sincerely held beliefs that occupy for their adherents the same preferred place that religious beliefs hold for the owners of Hobby Lobby?  Think of a federal mandate that would force a corporation like Ben & Jerry’s to violate one of its self-described “social justice” beliefs.

6)    Why was the First Amendment’s guarantee of the free exercise of religion not adequate protection for Hobby Lobby?  Why did it have to rely on the statutory protection in the Religious Freedom Restoration Act?  The short answer is, of course, the Supreme Court’s decision in Employment Division v. Smith, which held that religious liberty loses to mandates imposed by generally applicable laws.  But why should that be the case?  It results in the perverse view that Hobby Lobby is free to exercise its religious liberty only by way of legislative grace, the very opposite of the pre-existing fundamental freedom of religion – of conscience – that the First Amendment recognized and was designed to protect.

Some might see in this litany of questions a slippery slope to anarchy, to every individual becoming a law unto himself, but it actually poses fundamental questions about the very purpose of government and the legitimacy of the laws government enacts.  We have become too much of an entitlement society even to see the underlying problem, but these mandates are not of the “cause no harm to others” variety that would render them legitimate (and would render individual exemptions from them problematic).  They are instead of the “take from A to give to B,” robbing Peter to pay Paul variety.  That’s a purpose of government rejected by our founding charter, which defines the legitimate purpose of government as securing to each individual the inalienable rights they have from their Creator.  The Sandra Flukes of the world might have the “liberty” to use contraceptives if they choose (whether that includes abortifacients is another matter entirely, but I’ll save that for another commentary), but forcing others to pay for their contraceptive use is not the exercise of liberty.  It is, rather, the exercise of compulsion, for it denies liberty to others.  Wouldn’t it be nice if, once the vitriolic dust kicked up by the left’s reaction to the Hobby Lobby decision settles, we as a society might actually reacquaint ourselves with that “great first principle of the social compact”?  One can only hope.

Recommended Citation: John Eastman, Symposium: No free lunch, But dinner and a movie (and contraceptives for dessert)?, SCOTUSblog (Jul. 7, 2014, 1:18 PM),