Opinion writer July 2

Conservatives are hailing the Supreme Court’s 5 to 4 rulings in Burwell v. Hobby Lobby and Harris v. Quinn as victories for liberty, religious in the former case and associational in the latter. Liberals say what the decisions have in common is the obliteration of worker rights.

I agree that the cases teach a similar lesson but would summarize it differently: Oh, what a tangled web we weave when first we channel government-subsidized social benefits through corporations and unions.

Charles Lane is a Post editorial writer, specializing in economic policy, federal fiscal issues and business, and a contributor to the PostPartisan blog. View Archive

There is bound to be conflict between the government’s policy goals and the particular agendas of the middlemen who are supposed to carry them out.

Hobby Lobby emerged from a complaint by a family-owned business of that name to the effect that Affordable Care Act regulations confronted the firm with an impossible choice: Buy a group health plan that covers certain contraceptives, which Hobby Lobby’s owners’ faith bans as abortifacients, or violate the law’s employer mandate.

This dilemma, Hobby Lobby argued, unlawfully burdened its corporate religious freedom under the federal Religious Freedom Restoration Act.


The Supreme Court building following the court's decision on the Hobby Lobby case in Washington, Monday, June 30, 2014. (Pablo Martinez Monsivais/AP)

RFRA’s authors, including the late Ted Kennedy, who ushered it through the Senate, and President Bill Clinton, who signed it, wanted to ban governmental impingements on religious freedom except when they were unavoidably necessary to accomplish a crucial goal of public policy.

In applying RFRA to profit-making companies, albeit only closely held ones such as Hobby Lobby, Justice Samuel A. Alito Jr. did make new law, as critics protest, with all the potential for further litigation — what if a closely held for-profit corporation says same-sex marriage violates its religion? — that might portend.

Those critics have a point. Surely owners of businesses, even closely held ones, knowingly give up some rights of individual conscience in return for benefits, such as limited liability, that the corporate form provides them.

Still, there was a hyperbolic note to Justice Ruth Bader Ginsburg’s dissent. She warned that corporations might now “opt out of any law” except for taxes that “they judge incompatible with their sincerely held religious beliefs” — but she didn’t really provide a convincing scenario under which that would happen.

The point is, this is a difficult argument that would have been unnecessary if not for Obamacare’s employer mandate, which was an effort to reassure voters that the law would not end the employer-based health insurance system, which in turn is subsidized by a generous tax break.

Among other pernicious side-effects, linking insurance to employment creates “job lock” for workers and, since the tax break subsidizes overconsumption of health services, higher costs for everyone. Now we can add polarizing religious-liberty litigation to the list.

The issue in Harris was the system under which state Medicaid programs pay thousands of providers of at-home care to the elderly and disabled — as opposed to, say, having a government agency do the job. This is actually more humane and cost-effective, partly because caregivers are often family members.

Yet the Service Employees International Union saw an opportunity to boost membership by getting blue-state governments, including, in this case, Illinois, to declare the caregivers state employees for collective bargaining purposes — but not for other purposes, such as legal liability — and then recognize SEIU as their exclusive representative.

Contrary to their justified skepticism about the legal fiction of corporate religious belief, the court’s liberals accepted this one.

Their dissent argued Illinois was within its rights to define the caregivers selectively as state employees and, in the interest of “labor stability,” among other things, require them to pay SEIU dues, or, for those with objections to SEIU’s policies, a somewhat lower “agency fee.”

By the way, if you think the Democrats who run Illinois were more interested in labor stability than SEIU’s support at election time, I have a big white building at 1 First St. NE to sell you.

Alito rightly argued that these supposed state interests can’t trump an individual’s right to deny financial support to an organization he or she opposes, especially when it’s a union whose main function, bargaining with the state, inevitably affects political issues and the individual in question isn’t a “full-fledged” state employee in the first place.

Bottom line of both cases: Rights and responsibilities tend to be more transparent when government social-welfare programs deal with individuals directly.

Over time, Obamacare may further that goal by creating exchanges where you can always buy subsidized health coverage even if your employer says coverage is against its religion. To justify its agency fees, SEIU boasted that it bargained for health benefits. But the exchanges render that union function redundant, too.

In short, Obamacare might eliminate a lot of what the left and right were arguing about in Hobby Lobby and Harris — but don’t expect either side to admit it.

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