Days Black People Not Re-Enslaved By Trump

Wednesday, March 26, 2014

Hobby Lobby, Enumerated Rights, State Privileges And Saying "No" To Women

Currently the Supreme Court of the United States (SCOTUS) is in the middle of a debate that really ought not even exist. The contraception mandate of the Affordable Care Act combined with a virulent strain of feminism that features a total disregard for the concept of limited government and ignorance of constitutional guarantees and the purposes thereof have combined for a mashup of epic legal proportions. Let's get some basics out of the way.

There are constitutional rights and there are state privileges. There are needs and there are wants. In both cases people often confuse the latter with the former and frequently sane people are not around to disabuse these folks of their flights of fancies. And for good measure, when these differences are pointed out accusations of racist, sexist and/or hate the poor soon follow

The constitution of the United States explicitly lays out the rights of citizens through a varied set of amendments. These are referred to as enumerated rights. You have the right to speak freely without government prior restraint. This is an enumerated right. The government is prohibited from establishing any religion as a state religion AND from restraining the freedom of expression (practice) of whatever religion a citizen may adhere to. This last example is what has sparked the Hobby Lobby suit.

There are of course exceptions to the freedom of exercise right. You cannot murder a person via human sacrifice regardless as to whether the person volunteers to be killed. Why? Because your free exercise of religion stops when it runs afoul of laws designed to protect the lives of other people. The number of restraints on free exercise are very few and far between and are very specific because the free exercise clause is pretty clear.

Now if you continue to read the US constitution you will find no enumerated right to contraception. Go ahead and read it. You don't even find the right to education, healthcare or many other things that may be desirable (or not) Therefore any argument stating that somehow these things are rights, as in constitutional rights, are flat out wrong. They may be “moral” arguments but moral arguments are not constitutional arguments.

Back in the 70's SCOTUS overturned bans on abortion on the grounds that it was an unreasonable invasion of the privacy of women. That is, the woman's body was her property and the state did not have the right to tell her what she could do with it. One of the justices pointed out that the only way to bypass such a ruling would be to declare a fetus a person. In such a case, as in my example of human sacrifice, the state would have a legal reason to intervene: preventing murder.

In my opinion, women won a significant victory. If the state did not consider the fetus a person that needs legal protection from murder then why does the state have any right to tell women what to do with their body in which the fetus resides? My body, my choice. That's fair AND falls within constitutional understanding of private property (Your body is your property) and limited government power over individuals and their property. It also rebuffed the idea that a religious group could use the levers of government to impose their rules of living onto persons who do not ascribe. That's a big win for individual liberty and keeping the state free from endorsing a religious view of conception, etc. Fair deal all around.

Under the Obama administration someone thought it was a good idea to include contraception in “healthcare”. Contraception for women that is. Now the first problem is that the contraception mandate is a clear violation of the equal protection clause because it discriminates against men by not covering condom purchases Birth control is birth control. Cover all of it or cover none of it. How that escaped the geniuses in Washington is beyond me but there it is. Apparently it also didn't occur to these folks that such a law would also run afoul the “free exercise” constitutional guarantee of religious individuals and institutions.

Then again, it probably did. Many people on the left are hell bent on fucking with those of certain religious convictions. Having grabbed onto the levers of power they have gone to great lengths to disenfranchise those individuals and groups under the ruse of “hate”. Those people have “hateful” ideologies and ideas and therefore they don't get protection. Mind you I disagree with many of the views held by religious people and institutions however my position is that I give them wide berth, don't spend my money or time with them BUT make sure their rights are protected as much as I want mine to be. And I said “rights”.

One of the things that is dear to a number of religious people and the institutions they create is that they do not believe in contraception. Some go as far as to say none at all and some say anything that prevents implantation or disrupts development after implantation. It doesn't matter whether I think that's BS or not. It doesn't matter if 99.9% of the people in whatever religion actually use those methods of birth control. The matter of fact is the constitution explicitly allows for those persons to have said beliefs and to practice them freely. That also means that the state cannot compel them to participate in such things that run counter to their beliefs. To do so would run afoul of the free exercise clause.

How did contraception get to be thought of as a right? Cue feminists. At some point in recent history it became the idea that to oppose just about anything a woman wants is sexist and oppressive. This bullshit has run up the political mainstream because there are a number of men in power who are literally scared to death of their wives and women in general. Men generally are trained to seek female approval and if a woman says “hey pay for my shit!” these men ask “how much do you need?” rather than “why the fuck should I?” or “Pay for it yourself since you, you know, work.”

If you read statistics you will see that it is claimed that women “influence” the majority of purchases. I've always asked myself what exactly that meant. I would think a grown man with his own money who wants to buy something wouldn't be asking for permission or approval to do so but apparently this is not the case. Even Microsoft had an advertisement a few months back where persons (male) would fill out a form letter asking their “honey” to allow them to buy an X-Box One. The only objection raised in the media about it was that the advertisement was “hetero-normative”. Not that is was blatantly sexist and implied that men need approval of women to spend their money. My reaction to that is, if I have 4 bills to drop on an X-Box and my bills are paid and investments funded, I'm buying one and nobody can tell me otherwise. If my “honey” doesn't like it, she can have a seat and fix her face. I don't expect my “honey” to pass her entertainment plans by me for approval and I don't expect to do so either. You want it, you got money for it, knock yourself out.

I take the same stance with contraception. Why should I be on the hook for your lifestyle choices? Why should the state, who women rightfully got out of and off of their bodies, now want to the state to force other people to pay for or otherwise provide for their contraception? I believe a woman should have the right to contraception. No state should be able to prohibit women from getting contraception forms of their choosing. What I don't believe is that the state should be able to force any other individual, male of female, to pay for or provide it for them. And there is no basis in the US constitution to do so.

If the State wishes to provide contraception to its citizens at no out of pocket (or little out of pocket) cost to them, then the state should do so via it's own program (and I note here that with Single Payer this would not even be an issue). For example the state could provide tax deductions for the cost of contraception via the yearly taxes. It could do so under a monthly program much like tax collection. It could set up a program with pharmacies whereby the state is billed for contraceptives sold by them. Whatever way the state chose to (or not to) provide free or low cost contraception would still not prohibit women from getting contraception. So there is no threat of the state denying women access to contraception regardless of what certain parties wish to be the case.

But then we run into the entitlement problem. Due to the inability of government of late to simply say “no” to women in fear of being tarred with the “sexist” brush, certain groups think they are entitled to make other people finance their personal sex lives. They are upset that Hobby Lobby, etc. refuse from doing so against their beliefs. They say that Hobby Lobby is 'denying” women their “right” to contraception coverage. First, we explained already that there is no such right. Secondly Hobby Lobby, or any other person or organization should not be on the hook for financing the personal sexual lives of it's employees anymore than it should be dictating how their employees engage in their personal sex lives.

What these groups are arguing is that they have the right to force those who object to finance their personal sex lives. That is unsupported by any reading of the constitution. There are no civil rights at stake here. This decision should be simple for the SCOTUS. But that requires saying “no” to women. Do the men on the court have the fortitude to do so? Do the women of the court have the sense to understand that they are treading on very dangerous legal grounds by endorsing such an entitlement mentality among their gender peers?

Personally, I doubt it.

The Hobby Lobby case has brought up arguments about those who wish to oppose things such as blood transfusions and whatever other medical procedures they find objectionable on religious grounds. Let's end this line of thinking quickly. The difference between the contraception argument and the “we don't like blood transfusions” is that the former is not a life saving medical intervention while the latter is. Hobby Lobby cannot (and is not) saying that they can or should dictate to a hospital what forms of life saving medical treatment an insurance company can provide. And it should not be able to. If Hobby Lobby had the right to tell a hospital that it cannot provide a blood transfusion to a patient or to prohibit a medical insurance company from covering a blood transfusion, Hobby Lobby would find itself on the receiving end of wrongful death lawsuits galore and soon find itself out of business.

Similarly, Hobby Lobby cannot put itself between an employee who may object, on religious grounds, blood transfusions and demand that a hospital give a patient one over the patient's objection.

Similarly, if Hobby Lobby is against living wills that contain DNR orders, it cannot compel an insurance company or hospital to ignore the DNR order from a patient's family.

In other words neither Hobby Lobby or anyone else can (or should be able to) stand between a doctor and life saving medical treatment. Contraception is not life saving medical treatment and should not even be discussed in the same breath as those procedures.

Lastly, Hobby Lobby is not a person. This is agreed upon by even those on the Left who are pushing to [further] impose the state on Hobby Lobby. As a non person, Hobby Lobby is therefore the property of it's founders. It is the expression of the free will of the founders and should therefore be protected like any other property. Who's property is it? The Founders. What do the founders want to do with their property? Not provide for contraception. Why? Because it's a religious conviction of the property owners. End of story.

In the end the SCOTUS should remember that it's primary function is to uphold the constitution and the rights enumerated therein. Enumerated rights always come before acts of congress granting state privileges. Hobby Lobby has an enumerated right to the free exercise of it's founders religion and it's expression through it's businesses and it's business practices. Women and men who do not care for the offerings made by Hobby Lobby should be and are free to not work at Hobby Lobby. Perhaps Hobby Lobby will lose out on very talented people as a result of it's decision. That's Hobby Lobby's loss. But the government ought not be involved with that. The SCOTUS should be very careful in enforcing state created privileges over enumerated rights.

Here's the bottom line: Not a single woman will be unable to obtain birth control as a consequence of Hobby Lobby's actions. They may not be able to afford to buy it, but “affordability” is not an enumerated right.

A decision in favor of Hobby Lobby will not give them control over a woman's body. In fact it maintains the very correct legal idea that a private company AND the government has no business IN the body of a woman.

Some women may be inconvenienced by Hobby Lobby's policy. Convenience is not an enumerated right and should not be the basis of law and definitely not an argument against an enumerated right.

The limits of an enumerated right should be few and far between with maximum deference given to the right. There is only one party in the Hobby Lobby case that has an enumerated right and therefore should be given great deference by the court. We rightfully circumscribe free speech in cases of screaming fire in a crowded theater because such speech endangers the public. We rightfully restrict exhortations to violence in circumstances where such exhortations can predictively precipitate violence against other citizens. And even then, saying things like “I wish someone would run my boss over with their car” is protected speech even though it is a clear “exhortation”. Absent the likelihood that someone would actually act on such a statement is why it is protected. But make that same statement while surrounded by amped up persons willing to commit such an act and it's an entirely different thing. That's a narrow definition.

Declining to pay for someone's contraception does not in any way meet such a high bar of “danger to the public”. This is clear.