Thursday, March 27, 2014

Hobby Lobby and privacy

 Over the last few days, while looking at some of the pre-trial commentary on the Hobby Lobby vs. Obamacare suit, something that's been nagging at me finally jelled into a coherent thought. The primary arguments will be over whether the government is violating the religious freedom of the owners of Hobby Lobby by requiring the insurance they contribute to for their employees to cover birth control. I think the feminist issues have been covered well by my side and both sides have covered the religious freedom angles. My epiphany was over the privacy angle, which actually grows out of the liberal argument about whose religious freedom is being infringed upon by whom. All of these issues are inextricably intertwined. It's the job of the Supremes to untangle them and decide which thread is the Constitutional issue they want to opine on.

How does privacy fit into this? I'm fairly sure privacy is not even a choice among the bases the Supremes will use to make their decision. Robert Bork, who was Reagan's first choice for Scalia's seat argued that there is no right to privacy and, as far as I know, neither side in this case is making an argument that it is relevant. But it is. Be patient with me.

The Green family, who own the Hobby Lobby chain, claim they don't want to control the sex lives of their (female) employees, they just don't want to be forced to pay for aspects of those sex lives that they don't approve of. Ty disapprove of birth control, which they (very incorrectly) equate to abortion. By their logic, they don't want to pay for scarlet women to kill babies. That's not the issue. The issue is the privacy of their employees. Not anyone's religion. Privacy.

Compensation for a job can include a lot of things, pay for work, paid time off, bonuses, stock options, and insurance. These things the employer gives to the employee in exchange for work of some sort. In most jobs, this means the employer has a great deal of control over what the employee can or cannot do during what are considered working hours. Periodically, in the past, employers have tried to control their employees during their off-work hours. Schools, both private and public, have been well known for imposing morality codes on teachers that apply to every hour of every day. Over the last decade or so, many secular employers have tried to exert control over their employees off-the-clock vices. They have tried to control their employees smoking and drinking, even when these haven't affected their job performance, in the name of keeping insurance costs down. Other employers drug test for pot use, even when this hasn't affected job performance, and a cost to the company, just in the name of the employer's pecksniffery. The liberal, libertarian, and even, occasionally, conservative counter-arguments to these efforts has been that whatever the employee does off-the-clock is none of their employer's damn business. Different parts of the spectrum can have different rationales for objecting or supporting some of these employer demands. From the perspective of privacy, none of it is justifiable. Which brings us back to Hobby Lobby.

Insurance is part of the total compensation package that an employer gives to an employee. If a female employee wants to use their insurance to cover birth control, the Greens say they are being made to subsidize something they disapprove of. But what if the employee chooses to use part of her pay for birth control? How is that different? Pay and insurance are both part of the total compensation package. If the employer has the right to tell an employee how to use their insurance, why don't they have the right to tell them how to spend the monetary part of their compensation package? Why not tell them which cable channels they can subscribe to? Why not tell them to eat more vegetables, like Michelle Obama isn't?

The Greens want to intrude into the most basic economic transactions of their employees. In its most extreme, how is this degree of control different that the company store or the plantation. Conservatives love the plantation analogy; how can they defend this one?

1 comment:

Nummer eins said...

I ran across comments of yours in a blog about Philip Coppens' death and was intrigued, and impressed, with how you dealt with a troll. So, I found your blog, and have been avidly reading all evening.
I was especially interested in this HL piece because I have often said the religious and feminist arguments, while valid, are smokescreens for the real issue. You have addressed that real issue as one of privacy. I had not considered this, and it is definitely food for thought. I had felt the real issue was one of corporate personhood, but most people feel more confident getting behind a good old frothy religious banner or a feminist one. You bring up some incredibly interesting historical factoids about the relationship between employer and employee that I intend to research.
I wanted to also selfishly say thank you for braving the world wide web, so I could find your blog, and benefit from it. Cheers!! I will definitely mosey back over frequently!!