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Hobby Lobby vs. the Order of Justice

Ross Douthat affectionately calls out [1] me and Rod Dreher for applauding Patrick Deneen’s moral-economic brief [2] against Hobby Lobby and other big-box retail chains. He laments that the paleo/crunchy-con mentality tends toward self-marginalization.

Speaking only for myself, I actually agree with Ross.

I’m not Catholic. I’m not a traditionalist (if I were, I’d have a lot of explaining to do regarding that infatuation with Keith Richards [3]). When asked to describe my politics, lately I call myself a good-government Bush 41 conservative. (I maintain that H.W. was inferior to Reagan as a communicator and politician—obviously—but at least as great, and maybe even better, a president. I think his leadership during the meltdown of the Soviet empire [4] was brilliant, and I’d take Dick Darman over Grover Norquist every day of the week. Sue me!)

All that said, I fear I’ve muddied the waters on where I agree with Deneen, and where I part ways with him (as well as, I’m going to presume, Dreher).

I am taken with Deneen’s argument that there is an uninterrupted continuum between the Founding (“progressive” in a Baconian sense [5]) and the present; that classical liberals and modern liberals are both liberals. If there’s anything remotely distinctive about my blogging here and at U.S. News since ’10, I hope it’s been a counterweight to the despair of both moral traditionalists like Deneen and Dreher and market purists-slash-declinists like Kevin Williamson [6]. My gravamen, my conceit, my shtick is this: Government has grown alongside our continental economy. There is not a hydraulic relationship (one goes up, the other goes down) between markets and government. If our capitalists were smart, they’d favor effective social insurance alongside free enterprise [7]. Etc.

While I sympathize, somewhat, with Deneen’s aesthetic recoil from Hobby Lobby and strip malls and big boxes, I don’t get nearly as exercised about such things as he does. In any case, I don’t think there’s much that can be done practically to change it at the level of policymaking. I’m all for traditionalists and orthodox believers bringing their beliefs to bear in the marketplace. To the extent that I used the Hobby Lobby case as a springboard for my last post [8], it was only tangentially about contraception and religious liberty. My beef is not with religious conservatives participating in modern capitalism; it is with those who conflate modern capitalism and the Constitution [9] with Judeo-Christianity. I have a beef with them because this conflation, I believe, is one of the main drivers [10] of our current antigovernment ferocity, the rampant and irrational fears of inflation, and the counterproductive fear over short-term budget deficits.

I could be wrong about that.

In any case, I don’t think I made this point clear in my post on Hobby Lobby (which, for the record, I had never heard of before it became news).

While I’m at it, I might as well spell out what I think about the particulars of said case. On that score, I’ll associate myself with Yuval Levin’s recent post [11] in NRO’s Corner. He writes that conservatives:

take the arrangement of rights and liberties at the core of the liberal-democratic understanding of society to exist in the service of sustaining the space in which society thrives, rather than of taking society “forward” and away from its roots. There is room in that space for different parts of society to sustain quite different ways of living, and room for people to debate our broader society’s social and political course – which can take different directions at different times in response to different circumstances. Liberty is not the yearned-for endpoint of that story, when we will be free at last from the burdens of the past. Liberty is what exists in that space now, what allows for different people (and groups of people) to pursue different paths and debate different options, and what allows society to address its problems in various ways as they arise. Liberty is not what we’re progressing toward but what we are conserving.

Here, Levin calls to mind Garry Wills’s distinction [12] between the progressive-liberal “order of justice” and the “order of convenience.” To sum up a complex essay, Wills believed it should not be the aim of the state to dispense “raw justice” (Chesterton’s phrase), but rather to facilitate convenience (in the John Calhoun sense of the word—to “convene” or “concur” or bring about social peace). Sounding a lot like Burke and Nisbet, Wills wrote:

For if the state arises out of man’s social instinct, then the state destroys its own roots when it denies free scope to the other forms of social life. The state, when it is made the source of justice, must be equally and instantly available to all citizens; and, in achieving this, in sweeping away the confusion of claims raised by families, economic orders, educational conventions, codes of conduct, natural gradations of privilege, the Liberal leaves society atomized, each man isolated, with all the weight of political power coming unintercepted upon him. The higher forms of organization do not grow out of and strengthen the lower, but counter and erase them. This is what happened under the Order of Justice from the time when Plato pitted the state against the family to the modern breakdown of divided jurisdiction in the centralized state. …

The state, as extending throughout all other levels of social solidarity, must have a certain neutrality towards them all, and as the order-enforcing agent, it must take upon itself a certain negative, punitive function. This neutral and negative aspect of the state will be perverted, and become a positive push—as life-giving, rather than life-preserving—if the other forms of spontaneous activity wither; or if the state officials try to use their power to call up a positive vision of their own; or if politics is considered the all-inclusive area of man’s achievement of excellence. …

A proper order of convenience would be able to accommodate Hobby Lobby’s religious objections. On this matter and others, the Obama administration seeks an order of justice. I hope, in this case, that it loses.

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#1 Comment By Alice AN On March 29, 2014 @ 9:10 pm

What about accommodating the actual employees this decision will ultimately impact?

Conservatives pretend they care about ordinary people, but in their world the only people who get to exercise liberty of any sort are the overlords.

#2 Comment By John On March 30, 2014 @ 8:14 am

John Calhoun’s desired order of convenience entailed the denial of justice to every enslaved black person living in the South.

I’m not equating Hobby Lobby’s recent and almost certainly disingenuous aversion to providing contraceptive coverage to its employees with slavery in terms of the magnitude of their impact. But as with Calhoun’s slave-holding South, Hobby Lobby’s desired accommodation in providing (tax-subsidized) health insurance to its employees entails their employees accepting a hardship for no reason but the pleasure of Hobby Lobby’s owners. Perhaps it might have been different if the slave-holding states and the free states had formed independent federal entities, or if there had been a single-payer health insurance system to absolve Hobby Lobby of indirect responsibility for its employees’ choices. Nonetheless, this is where we are – with one person’s freedom ending in someone else’s privation.

#3 Comment By Charlieford On March 30, 2014 @ 9:16 am

I’ve always considered it a weakness in conservatism–ie, mainstream, moder, American conservatism)–that, in its admirable efforts to conserve that which is good in society, it only sees threats coming from “the state,” never from the private sector.

Mr. Galupo seems to embrace that angle here (something that surprises me, in fact–perhaps I haven’t been reading carfully enough?)

Whichever way SCOTUS rolls, we will have a change.

Either the federal government will be mandating what acceptable insurance looks like (and that will include contraceptives), or employers’ religious beliefs will determine what’s available to their employees through their insurance.

Reasonable people may find reasons to object to either–or both, actually!–of those outcomes.

Mr. Galupo’s article is unsatisfying because, as with 99.9% of conservative commentary on this issue, he seems blind to that real-life dimension of the controversy. it’s all about some abstract concept of “liberty” and how to conserve it, which has everything to do with regulations and employers, but apparently everyone else is a sort of backdrop against which this drama is enacted.

Or, as Rick Garnett puts it at SCOTUSblog, “Some people frame and “see” these cases as occasions to engage interesting theoretical questions about the nature of corporations and their relationships to their owners, managers, and employees.”

Did you catch that? “Theoretical.”

Anyway, 3/5 of the states have had contraceptive mandates for close to 20years in some cases, the EEOC has had the same at the federal level since the Clinton years (with no objections), and Hobby Lobby itself covered all the FD-approved contraceptives until the HHS rulings were handed down, at which point it reviewed its coverage and developed an objection.

Insurance, like wages, is compensation. Should employers have any more say about what insurance will cover than what you may do with your wages?

Perhaps they should. But let’s notfool ourselves. No one’s “conserving” anything by moving in that direction.

#4 Comment By tz On March 30, 2014 @ 11:25 am

We’ve confused (not conflated, get a dictionar) convenience and justice. Justice is the cardinal virtue where people get what they deserve. Mercy only exists because justice is hard.

Obamcare is about convenience from root to tip. Justice would have it and the unwar on terror and surveillance all abolished. Due process is inconvenient. If truth can be inconvenient, justice is more so. Law should conform to.truth, objectively, in the form of Natural law. Justice purpose has that as the end
– conformance with the natural law.

The pile of.paper trash known as statute and precedents has little to do with that.

But there is a point – the big corps are.now.cronies.overriding just laws for.their convenience. Government Motors anyone?

#5 Comment By Aegis On March 30, 2014 @ 12:40 pm

“A proper order of convenience would be able to accommodate Hobby Lobby’s religious objections.”

I don’t see why that is necessarily the case. Certainly the state can’t yield to all prerogatives of the “lower forms of organization”–after all, we rely on the state at times to curb the abuses that can arise in those “lower forms.”

So what is it about setting minimum standards for employer-provided health insurance that clashes with “[a] proper order of convenience” that isn’t present when, for instance, the state steps in to stop religiously sanctioned wife-beating?

#6 Comment By Brandyjack On March 30, 2014 @ 7:38 pm

There is a, perhaps no existent, minor problem. The carrying forth of what I must call, as grossly wrong, that corporations are individuals and have individual rights enumerated by the Constitution. I can agree that on the grounds of religious freedom, Hobby Lobby may be granted an exception. Based solely on the religious beliefs of the owners, as sole owners. However, a broad decision could allow any for profit, share held corporation to claim such exempts that are nothing more or less than a dodge of expenses. Bottom line thinking as usual, under the guise of religious freedom.

#7 Comment By mrscracker On March 31, 2014 @ 9:51 am

Hobby Lobby is not owned by Catholics. They have always paid for “preventative” contraceptives for their employees.
There are only a very few drugs- which often act as abortifacients- Hobby Lobby does not want to pay for.

#8 Comment By Marc On March 31, 2014 @ 10:12 am

I call myself a good-government Bush 41 conservative.

And this is why conservatism is a failed ideology. There are more flavors of conservatism than they are Ben and Jerry’s ice cream. No one can define what conservatism is and what are its goals and objectives. That’s why it has failed to conserve a single thing.

I recommend that Scott read Bruce Bartlett’s [13]. In the early chapters Bruce discusses how hostile G HW Bush’s administration was to Reaganites. It isn’t surprising to me that Scott considers George HW Bush as his model conservative (this is the first time I have heard Bush 41 described as conservative) as he is also has contempt for Reagan type conservatives.

#9 Comment By icarusr On March 31, 2014 @ 10:15 am

The corporation was and remains a purely economic construct to shield investors from the unlimited liability that prevailed before in respect of investments and partnerships. Nothing more than that. And when a corporation is used as a means of achieving only private ends – rather than the ends of the corporation itself – then the corporate veil is pierced to enable complainants, private or public, to go after the owners.

The perversity of the Hobby Lobby case is that its even as the owners presumably see to take advantage of the corporate veil for tax and liability purposes, they are self-piercing the veil to conflate the “religious views” of the corporation with their own.

So now we have an artificial creation – the corporation – endowed with constitutional rights in the name of religion in respect of an arrangement that is fundamentally economic in nature. Plain bizarre.

#10 Comment By Johann On March 31, 2014 @ 10:38 am

I believe all sides of these health insurance disputes miss the real issue. The purpose of insurance is for catastrophic protection. The medical insurance system has morphed into a system to pre-pay normal everyday medical and drug bills. No “insurance” program should be paying for contraceptives.

#11 Comment By Johann On March 31, 2014 @ 10:39 am

The Hobby Lobby employees have every right to contraceptives. They have no right to demand that their employer pay for their contraceptives.

#12 Comment By Charlieford On March 31, 2014 @ 12:14 pm

“The purpose of insurance is for catastrophic protection. The medical insurance system has morphed into a system to pre-pay normal everyday medical and drug bills.”

Many dollars short and many years late, Johann.

#13 Comment By mrscracker On March 31, 2014 @ 12:18 pm

Johann says:

March 31, 2014 at 10:39 am

The Hobby Lobby employees have every right to contraceptives. They have no right to demand that their employer pay for their contraceptives.”
****************************************
Hobby Lobby already pays for contraceptives, they have no moral/ethical issue with preventing conception.Hobby Lobby only has issue with drugs which act as abortifacients.
Why isn’t this made clear in the media?

#14 Comment By miniluvr On March 31, 2014 @ 6:29 pm

The Hobby Lobby owners could just drop insurance coverage for their employees. The fine of $2000 per employee would be less than most insurance premiums (that’s $166.00 per month per employee). But then they themselves wouldn’t have the corporation pay for their own insurance. And the fine isn’t tax deductable like insurance is.

So Hobby Lobby wants the tax write off.

#15 Comment By grumpy realist On March 31, 2014 @ 6:36 pm

Can we please just go to a single-payer system and divorce health insurance from employment completely? It would avoid so many problems….

#16 Comment By Charlieford On March 31, 2014 @ 10:07 pm

“Can we please just go to a single-payer system . . .”

Socialism!

We got a socialist here!

I’ll hold him down–you guys go notify the authorities!

#17 Comment By Tim On April 1, 2014 @ 2:03 pm

What is it about this issue that drives progressives stark raving mad?

John spends an entire paragraph comparing the owners of Hobby Lobby to slave owners while reassuring us that he recognizes that not covering something under an insurance plan that costs a cup of coffee per day is not EXACTLY the same as enslaving someone, but it’s in the same ballpark.

Aegis wonders what is present in not being forced to cover something under an insurance plan that costs a cup of coffee per day that is not present under beating your wife. How about violence?

Charlieford tells us that this all much ado about nothing because many states already had contraceptive mandates (which ignores the many ways religious employers could avoid those state mandates that are not open to them under the federal mandate), and then wonders aloud whether employers will start demanding that their employees give an account for how they spend their wages should Hobby Lobby win. Gee, did the states that did not have contraceptive mandates see a outbreak of employers acting in this way? No?

Imagine that.

And icarusr is really, really worried that if Hobby Lobby wins then the corporate veil will be pierced. I’m sure it’s keeping him up at nights. Would he be worried about the “piercing of the corporate veil” if a Republican administration were ordering companies to compensate their employees with guns and ammunition?

#18 Comment By Charlieford On April 1, 2014 @ 2:42 pm

Not exactly what I’d call a “close reading” there, Tim.

#19 Comment By grumpy realist On April 1, 2014 @ 2:43 pm

Well, if Hobby Lobby wants to claim an exemption to paying health insurance that covers things they don’t like, *I* want to be able to claim an exemption to paying taxes that go for things *my* belief system doesn’t support–like stuff for wars and bombs. Mmmkay? Goose, gander.

#20 Comment By Martin Ranger On April 1, 2014 @ 11:44 pm

“I believe all sides of these health insurance disputes miss the real issue. The purpose of insurance is for catastrophic protection.”

No, the health insurance system is also an implicit insurance society offers you before you are even born to protect you against the case your genetic material or environment causes you to suffer from bad health.

#21 Comment By Jude On April 2, 2014 @ 5:45 pm

” Would he be worried about the “piercing of the corporate veil” if a Republican administration were ordering companies to compensate their employees with guns and ammunition?” — Not only ridiculous but off-topic.

icarusr makes some very valid and interesting points. And the issue of consequences to a corporation being legally a “person” is very real and a concern of corporations.

I am not only disappointed but scared the this case was even accepted by the Supreme Court. Finding for Hobby Lobby would have enormous consequences, some mentioned here. Effectively, on “religious grounds” corporations could pick and choose coverage: first IUDs (their claim is only on this specific birth control method). Then other birth control methods. Then HIV medication. Then medication for sexually transmitted diseases. The possibilities are chilling.

Religious freedom can not trump personal liberty. Otherwise, virtually any form of discrimination is possible.

#22 Comment By Jude On April 2, 2014 @ 7:25 pm

Regarding Healthcare in general, privately most CEOs would like nothing more than to be relieved of providing Healthcare coverage to employees as a benefit. Healthcare cost is the single most important factor reducing US competitiveness.

The “tradition” of providing employee Healthcare coverage is an outdated legacy of WW2 wage freezes — to attract better employees, since companies could not offer a wage increase, they offered various benefits.

That the USA is the only major Industrialized country that does not offer some form of universal government healthcare is telling: we pay by far the most and by all measures, have a system that is neither an efficient nor or particularly high quality. In fact, the only situation in this country where private healthcare is delivered even relatively efficiently is via plans offered by companies having a large enough risk pool to be self-insured.

If single-provider, self-insurance the rule for employees of large companies, why don’t all Americans have this option?

Let’s look at a possible “free-market” option that to some is very appealing: end the “tradition” of companies providing healthcare coverage as a benefit. Starting next year, give employees a one-time raise equal to the cost of their employee provided insurance.

Then let everyone go out on the “free market” as individuals and shop for insurance…

#23 Comment By ThomasH On April 3, 2014 @ 9:16 pm

The problem with the Hobby Lobby claim is that they wish to assert a right over the use of their employees’ money. Heath insurance is not “provided” out of corporate generosity but as part of the employee’s compensation package. The employer has no more legitimate interest in what is covered by an employee’s health insurance plan than it has in how the employee spends his paycheck.

#24 Comment By Jude On April 4, 2014 @ 5:46 pm

“The problem with the Hobby Lobby claim is that they wish to assert a right over the use of their employees’ money. Heath insurance is not “provided” out of corporate generosity but as part of the employee’s compensation package. The employer has no more legitimate interest in what is covered by an employee’s health insurance plan than it has in how the employee spends his paycheck.”

ThomasH — very good points. Hobby Lobby could simply drop employee coverage if the issue was so important…