Responding to Common Arguments on the Side of the Government

By Helen Alvare, Founder of WSFT 
Linda Greenhouse, resident abortion and sexual expressionism evangelist (and — on the side — the “Supreme Court reporter) at the New York Times, is very nervous that religious freedom might win at the Supreme Court. She’s nervous because she is a devotee of a worldview in which religion is not notably important, but sexual expression generally — without opposite-sex marriage, and in same-sex marriage in particular — is, because it’s somehow more at the center of human identity.  On the way to her closing prayer — that the Court not allow religion to “trump” the government’s ability to command religious actors to obey the government’s  moral code — she makes a few common arguments I want to help inoculate you against….and help you to help OTHERS to understand: 
  1.      She claims that the lawsuits involving photographers and bakers who don’t want to be involved with same-sex weddings are discriminating against LGBT individuals. This is not true. Those vendors often have a record of doing regular business with LGBT individuals. They object to being forced to cooperate with an EVENT – a wedding ceremony — not to serving any particular PERSON.
  2.  She makes a false slippery slope argument. She claims that if the Court lets companies refuse to cooperate with the Mandate, then other companies will definitely be able to refuse to insure procedures like blood transfusions…or they could discriminate on the basis of race, etc. IF they claimed it was religiously necessary. THIS IS WRONG AND HERE’s WHY:
    If a company made such a claim (and , fyi, IF THIS IS LIKELY, WHY HAVEN’T SUCH CLAIMS BEEN MADE IN THE PAST WHEN COMPANIES WERE PERFECTLY FREE TO TRY??), many steps would have to be satisfied, and still, THE COMPANIES WOULD ALMOST CERTAINLY LOSE:
  1.  They would have to show they are a company with a religious “belief.” This is not easy to show. Hobby Lobby and Conestoga Wood are not “typical”
  2. They have to show a “religious” belief.
  3. That religious belief has to be “sincere.”
  4. And here’s where they almost certainly lose. EVEN if the company shows a burden on sincerely held religious beliefs? THEY STILL LOSE BECAUSE THE GOVERNMENT CAN SHOW A “COMPELLING STATE INTEREST” in requiring insurance for blood transfusions, or in showing the necessity of nondiscrimination by sex or race, etc.
That the government CAN’T show such a compelling state interest in ordering insurance coverage for drugs that are pretty cheap, ubiquitous, and not linked to improving women’s health (contraception) does NOT answer the slippery slope question Greenhouse claims it shows.


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