gracchusdixit

Amidst all the chaos and incompetence roiling the White House, it is all too easy to lose sight of the enormous damage that Donald Trump and his minions are all too effectively bringing about behind the scenes.  It seems likely, for example, that Trump will soon issue an executive order rolling back a central pillar of Barack Obama’s Affordable Care Act—the requirement that employer-funded health insurance plans provide a uniform package of basic preventive services to their employees.

The motive behind this executive order is not a generalized hatred of “Obamacare,” let alone hatred of Obama himself.  The reason is that one of the preventive services mandated by the law is contraception—which, to intellectually febrile Christian conservatives in “the heartland” and their slavish representatives in Congress, is nothing less than an abomination.

To please the rabid sentiments of this small part of electorate, Trump intends to give businesses wide latitude to opt out of their obligation to cover contraception, on the grounds that it may offend their moral or religious sensibilities. The rationale for this blatant discrimination against women and their right to make their own reproductive decisions is a purported desire to protect “religious freedom.”   The only “freedom” that seems to count in this case, however, is that of employers, rather than employees.

It is tempting to blame this moral abomination solely on Trump and his flunkies, but the original sin lies elsewhere.  It lies with the Supreme Court of the United States.  The Trump White House would not now be bold enough even to be considering this action, if it were not for two of the worst decisions the court has ever made.

The first, Citizens United v. FEC, was handed down in January 2010.  It was the first time in our legal history that “corporations” were judged to have the same constitutional rights as “persons.”  Although Citizens United applied narrowly to the First Amendment right to free speech, it opened the door to the more pernicious possibility that corporations might someday lay claim to other “personal” rights as well.

It didn’t take long for that to occur.

In June 2014, in Burwell v. Hobby Lobby, the conservative majority on the court ruled that privately held companies have the right to withhold medical coverage that offends the religious sensibilities of their owners.  Citing the First Amendment’s guarantee of religious freedom, the court empowered Hobby Lobby to deny contraceptive coverage, solely because its owners believed—or pretended to believe—that several of the contraceptives mandated by law were “abortifacients.”  The court did not bother to establish whether those contraceptives were in fact “abortifacients” (they were not), nor did it question the sincerity of the company’s owners (which was dubious), and it certainly did not consult the wishes of the company’s employees.  Instead, the court chose to defer to the purported beliefs of Hobby Lobby’s evangelical owners.

The problem with these two decisions is that they are illogical, constitutionally untenable, and philosophically absurd.

Not only are corporations not “persons” in any ordinary sense of the word, they cannot be “persons” in a constitutional sense, since the constitution never mentions corporations, let alone the notion that corporations have the equivalent of personal “rights.”  Corporations are manifestly not persons; they are artificial legal constructs, created by government to stimulate commerce.  Whatever legal protections or benefits they receive (which are numerous and considerable) derive from legislative decisions, not fundamental constitutional protections.  To pretend otherwise is arrant nonsense.

Far more importantly, the notion that corporations can discriminate against their employees in the name of “religious freedom” is a legal and philosophical error of the most fundamental sort.  The religious freedom enshrined in our constitution is what philosophers call a “negative freedom.”  It does not empower those who hold specific religious beliefs to impose their beliefs on others.  Rather, it does the opposite.  All the while it gives the owners of Hobby Lobby the right to believe whatever they wish, it also prohibits them from imposing their beliefs on those who believe otherwise.  That is what “freedom” means under our constitutional arrangements.

Among the most influential voices on this question was the English thinker, John Stuart Mill, whose foundational essay, On Liberty, was published in 1859.  In that work, Mill had much to say about the interplay between religion and freedom, and about the aggrieved sensibilities of people like the owners of Hobby Lobby:

A religious bigot, when charged with disregarding the religious feelings of others, has been known to retort that they disregarded his feeling, by persisting in their abominable worship or creed.  But there is no parity between the feeling of a person for his own opinion, and the feeling of another who is offended at his holding it; no more than the desire of a thief to take a purse, and the desire of the right owner to keep it.

The desire of Hobby Lobby’s “offended” owners to deny contraceptive coverage to their employees, like the desire of the Trump administration to deny such benefits to others in the name of “religious freedom,” is little more than a theft—and a persecution—perpetrated in the name of religious freedom.

The same John Stuart Mill put it best when he observed:

The notion that it is one man’s duty that another should be religious, was the foundation of all the religious persecutions ever perpetrated. 

What the Trump administration is now contemplating has nothing whatsoever to do with religious freedom.  It is religious persecution.