Wednesday, November 27, 2013

Hobby Lobby, the Divine Right of Sperm, and Religion v. Religion (Hobby Lobby 02)

If I understand it correctly, some human persons hold a religious belief that they must never do anything, directly or indirectly, that could interfere with any sperm's ability to produce a human being.  Let's call that a belief in the Divine Right of Sperm*.

This belief is apparently the one held by the human persons doing business as Hobby Lobby. I mention human persons because the Supreme Court has not yet stated that corporate persons have the ability to hold religious beliefs, or, in the language of the First Amendment, to exercise any religion.  But after Citizens United, maybe they will do that soon.

Some of Hobby Lobby's employees might have a religious belief that they should not harm other human beings.  Consider, then, a mother of five whose spouse is too ill to have a paying job.  Or a childless husband and wife who are the sole support of their parents and siblings. These people might, as a matter of their religious beliefs, use contraception so as not to jeopardize the lives of those dependent on them.  Now we have religion v. religion.  What in the Constitution says that the employer's religion wins?

Maybe employers who believe in the Divine Right of Sperm should be allowed to refuse to hire women at all.  Otherwise, the employers would be complicit in violating some sperms' rights from time to time.  Or should these employers be free to make sure that any female jobseeker is menopausal, celibate or gay?  And what about married women who swear they rely on the rhythm method?  God made women fertile at certain times of the month.  The divine right of sperm is in conflict with the rhythm method.

Can these employers also refuse to hire men who have had a vasectomy?  Can it refuse to hire men who will not promise to sign an oath never to use condoms?

But wait, you say.  Hobby Lobby does not care how the employees spend their wages.  Hobby Lobby objects that the Affordable Health Care forces the business to pay for contraception using the business's MONEY, thus leaving less money for the human owners with the religious beliefs.   Well, I guess that means Hobby Lobby accepts some limits to both the Divine Right of Sperm and to the human owners' willingness to "follow the money" to protect that right.

I admit that government forces businesses to use money in ways that might violate the human owners' religious beliefs besides the one about contraception. That is because it is a government of ALL the people.  For example, a business violates the law if it discriminates on the basis of religion. That means it must occasionally use its MONEY to pay wages to employees whose religious beliefs differ from those of the business's owners.  Does the First Amendment religion's clause trump all nondiscrimination laws?  Not so far.

I say the "religion clause" to remind myself of the words of the First Amendment."Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...."  That is not the same as "Congress shall guarantee every human person total freedom regarding religion."  The Constitution does not permit one human being's religious beliefs to trump another's and it does not permit one human being's religious beliefs to trump other rights that other human beings have under our laws.


* The Divine Right of Sperm:  I find only one hit for this phrase today:  here.  It concerns gender discrimination: the sole right of bearers of a Y chromosome to be bureaucrats in Europe.  I am talking about the right of the little wiggly things themselves, not of the human being carrying them around.

typo corr/minor rev 1/10/14 rjm

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