Justice Kagan, You Gotta Serve Somebody (SCOTUS on the HHS mandate)

No man can serve two masters: for either he will hate the one, and love the other; or else he will hold to one, and despise the other. Ye cannot serve God and mammon. (Matthew 6:24 – ERV)

But you’re gonna have to serve somebody, yes indeed 

You’re gonna have to serve somebody 

Well, it may be the devil or it may be the Lord 

But you’re gonna have to serve somebody

--Bob Dylan, “Gotta Serve Somebody” (1979)

Reading the transcript of Tuesday’s oral arguments before the Supreme Court in the Hobby Lobby and Conestoga cases, I came across this exchange between Justice Elena Kagan and the attorney for Hobby Lobby, Paul Clement:

MR. CLEMENT: Well, just to put this in concrete terms, for Hobby Lobby, for example, the choice is between paying a 500 – a $475 million per year penalty and paying a $26 million per year coverage.

JUSTICE KAGAN: No, I don’t think that that's the same thing, Mr. Clement. There’s one penalty that is if the employer continues to provide health insurance without this part of the coverage, but Hobby Lobby could choose not to provide health insurance at all. And in that case Hobby Lobby would pay $2,000 per employee, which is less than Hobby Lobby probably pays to provide insurance to its employees. So there is a choice here. It’s not even a penalty by – in the language of the statute. It’s a payment or a tax. There’s a choice. And so the question is, why is there a substantial burden at all?

MR. CLEMENT: Well, just to be clear, we were talking about the same thing. So the option, the choice, is between paying a $475 million a year penalty and a $26 million a year penalty. That’s what Hobby Lobby faces. So $2,000 per person.

JUSTICE KAGAN: No, between paying $2,000 per employee per year if Hobby Lobby does not provide.

MR. CLEMENT: That’s $26 million.

JUSTICE KAGAN: You know, Hobby Lobby is paying something right now for the – for the coverage. It’s less than what Hobby Lobby is paying for the coverage. There are employers all over the United States that are doing this voluntarily because they think that it’s less.

So, according to Justice Kagan, the way that the Green family, the owners of Hobby Lobby, can avoid this “substantial burden” is to simply not offer to their employees health insurance of any kind. Consequently, they not only do not have to provide to their employees pharmaceuticals that are used to end nascent human life (which is what the Greens object to in the HHS mandate), they are financially in a better position than they were before. How can one not like this deal? Thus, reasons Kagan, if the Greens have the right under the Affordable Care Act to choose to relieve themselves of this substantial burden and do not exercise that right, it is the Greens, and not the government, that is placing a substantial burden on the Greens.

Elena Kagan

Although it is the sort of argument that has a lot of cachet in some legal circles – for it seeks to reduce religion, as with just about everything else, to non-religious categories (e.g., economics, personal desire, etc.) – it fails precisely because of its eliminative nature. Since it cannot take the Christian theology of the Greens seriously – as an independent knowledge tradition with its own categories, concepts, and methods of inquiry – it cannot possibly provide grounds for rejecting their substantial burden claim.

To provide an example: an atheist citizen subpoenaed to testify about what his friend had told him about a robbery the friend may have committed is not as serious a constraint on the atheist’s liberty in comparison to the case of a Catholic priest subpoenaed to testify about what a penitent told him in the confessional about a robbery the penitent may have committed. For the atheist, revealing this secret, though perhaps emotionally painful, is not a mortal sin that he believes results in the loss of sanctifying grace and automatic excommunication from the Catholic Church. But it is for the Catholic priest.

Because of her eliminative analysis, Justice Kagan cannot see the real nature of the choice the Greens actually face. It is not between two different sorts of economic transactions, one of which is cheaper and avoids the government coercion they loathe. Rather, when placed in its appropriate context, the Greens’ Christian faith, the choice they have been offered by the government is a Hobbseian one.

Either they must acquiesce to the HHS mandate and materially cooperate with the termination of nascent human life, and thus violate their conscience and what they believe is a clear command of God (Psalm 127:3), or they must cease offering health benefits to their employees, and thus violate their conscience and what they believe is a clear command of God: “But if anyone has the world’s goods and sees his brother in need, yet closes his heart against him, how does God’s love abide in him? Little children, let us not love in word or talk but in deed and in truth.” (2 John 3:17-18)

The religion that the Greens, and many Americans, practice, having deep and sophisticated historical roots and finding its expression in such diverse believers as St. Paul, St. Augustine, St. Teresa of Avila, John Calvin, Pope John Paul II, and Billy Graham, is about who one is going serve. The attempt to capture it in the categories of law and economics, as Justice Kagan tries to do, simply distorts that reality.

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