(Part 3) Confronting Hobby Lobby Heebie-Jeebies: a proposal after church today

By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law

“We have only this moment, sparkling like a star in our hand, and melting like a snowflake.” – Francis Bacon quoted as part of the Sermon today at Trinity Episcopal Church, Toledo, Ohio

” The servant said to Laban, “I am Abraham’s servant. The LORD has greatly blessed my master, and he has become wealthy; he has given him flocks and herds, silver and gold, male and female slaves, camels and donkeys.” Part of the First Reading today at Trinity Episcopal Church, Toledo, Ohio, Genesis: 24:34-38, 42-49, 58-67

“So I find it to be a law that when I want to do what is good, evil lies close at hand. For I delight in the law of God in my inmost self, but I see in my members another law at war with the law of my mind, making me captive to the law of sin that dwells in my members. Wretched man that I am! Who will rescue me from this body of death? Thanks be to God through Jesus Christ our Lord!” Part of the Second Reading today at Trinity Episcopal Church, Toledo, Ohio, Romans 7:15-25a

“Come to me, all you that are weary and are carrying heavy burdens, and I will give you rest. Take my yoke upon you, and learn fro me; for I am gentle and humble in heart, and you will find rest for your sous. For my yoke is easy, and my burden is light.” Part of the Gospel Reading today at Trinity Episcopal Church, Toledo, Ohio in Matthew 11:16-19, 25-30

I prayed on Hobby Lobby and subsequent events such as this Boston Globe article (http://www.bostonglobe.com/metro/2014/07/03/gordon-college-president-signs-letter-asking-for-religious-exemption-from-order-banning-anti-gay-discrimination/79cgrbFOuUg7lxH2rKXOgO/story.html?p1=Article_InThisSection_Bottom) entitled
“Gordon College leader joins request for exemption to hiring rule: Bias on sexual orientation at issue”). I was up to do the First Reading today. I was moved by it to remember how the Bible was used by those with their sincere religious beliefs (whatever the oppression it caused for slaves) to countenance slavery in its sections such as the one I quote above in the First Reading. I remember the sincere religious beliefs that animated the father of human rights Bartolome de las Casas the Spanish secular priest who worried aloud about the destruction of the Indians back in the 15th century. I thought about how he is cited as the source of the decision to import Africans to be slaves in replacement of the Indians (as then called) – a true perversion at the soul of the human rights movement. I think of the religious bases for international law and the 17th century vision of humans as being subjects of international law and not just objects of the actions of sovereigns.

I look at the second reading and the war in each person so described. I think of a person who is afflicted with physical trouble in their body of death asking for rescue. I look at the Gospel reading in which Jesus calls out to the weary and those carrying a heavy burden and says he will give each of us rest.

I look at these parts of my sincere Episcopalian religious beliefs and continue to find profound offense in the Supreme Court’s Hobby Lobby decisions and the actions of those who in the name of their sincere religious beliefs are trying to limit the possibility of being hired for LGBT people, of trying to keep their workers from being able to get all forms of health care that are permitted under the affordable care act, and on and on.

Render unto Caesar that which is Caesar’s and unto God that which is God’s.  No one, whomever they are, should be forced by public or private power in the United States of America to a Hobbesian choice between where they seek to work or work and their faith.

I lived in France for 17 years where – as long as you worked anywhere (religious institutions included) – you were in the health care system, even if you became unemployed at some point in that career. You and your family were covered for your health care. It was a terribly important relief for me. The Catholic Church in France is also called the eldest daughter of the Catholic church – a high honor that was clearly not incompatible with all forms of health care being provided to those who had a job or had had a job.

I know of people who have gotten on their feet by working at a religious institution – maybe not making much money but enough to keep kith and kin together – as they come back from horrendous things in their life. I have known LGBT persons who have come to my church because of the hostility they experienced in their sincere religious beliefs at other churches because of who they are. I have had a lesbian priest and lesbian and gay leaders in my church whose faith far exceed my own modest faith.

And so I say that it is fundamentally abhorrent to my sincere religious beliefs for us to countenance organizations of any stripe being able to extract themselves from the health care law obligations that the secular government places on them through some type of exemption that said secular government provides those places of work.

If you work somewhere, that place’s religious beliefs should be respected but that place (or whoever owns it or runs it or works with you in it) does not get the extended right to discriminate against you in hiring, keep you from getting all health benefits that would normally be available but for a governmental exemption, or retaliate against you for having sincerely religious beliefs that do not concord with those of that place.

Health care is too much of a moral and legal right well recognized in the Universal Declaration of Human Rights to be left to the sincere religious beliefs of those who would discriminate in a manner that offends my sincere religious beliefs.

Article 25.
•(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
•(2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

So, I have a solution to the abomination that is Hobby Lobby and the subsequent events. It is a simple regulatory fix for now.

In whatever language that says that an exemption based on sincere religious beliefs can be granted, to take into account Hobby Lobby and my sincere worries about Establishment Clause violations of the implications of Hobby Lobby, I suggest that the Obama Administration or any future Administration at this following language to the regulations.

[such sincere religious belief based exemption may be granted] unless a person or persons assert(s) sincere religious beliefs or other forms of conscientious objection about the effect of the sought exemption on that person or persons which run counter in any manner to the sincere religious beliefs based on which the exemption from the normally applicable health care provisions is or has been sought. In such case, no exemption will be provided or any previous exemption may be suspended pending the resolution of any disputes by the persons in a court of competent jurisdiction. During the pendency of said litigation before a court of competent jurisdiction including any appeals, no person asserting said sincere religious beliefs or conscientious objection(s) may be subject to adverse action or detriment in the organization seeking the exemption.”

That would put the issue back into the courts to try to sort out and would protect the sincere religious beliefs of everyone.

If someone reading this knows somebody in the Obama Administration who is working on this stuff – send them this message.

If you are a person like me whose sincere religious beliefs are offended by Hobby Lobby and subsequent events, then tell your religious leaders and get your religious organization to come out to the powers that be at the local, state, and federal level to support this limited regulatory change.

I am a member of the Committee for Racial Understanding in my Episcopal Diocese and I told my congregation this morning during announcements that I had prayed on this and that I felt I should do what I am doing here and also bring this to the attention of the Committee for Racial Understanding. I felt strong support from my congregation and leadership for taking this path. I pray it is the one that the Lord wants. Because I hate to do it, I am hopeful that the Scripture of the Second Reading and the fact that unbeknownst to me I was on the list to do the First Reading (got to church just in time) are the kinds of signs old hippies and old Testament types are given by the Creator to help show to them the path of righteousness.