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Justice Kagan, You Gotta Serve Somebody Print E-mail
By Francis J. Beckwith   
Friday, 28 March 2014

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
 

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. 

 
Francis J. Beckwith is Professor of Philosophy & Church-State Studies, Baylor University.

 
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Comments (24)Add Comment
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written by Bruno, March 27, 2014
From that excerpt Justice Kagan doesn't seem too fast in understanding. Paying for what they understand to be abortion is absolutely not a choice to Hobby Lobby, if they are to be believed. If the worst come to be and they remain true to their purpose, risking perhaps going bankrupt, that will be a powerful witness.
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written by Manfred, March 28, 2014
Thank you for bringing the numbers involved in this case out in the open. There are subtleties here which must be analyzed. First, the concept of employer-paid healthcare was introduced in WW II when, because of wage and price controls, employers could not give employees raises. In order to skirt the law, employers began paying health insurance premiums for their key employees individually. The government soon allowed employers to cover all their employees with the employer taking a tax deduction for the cost, with no taxable event to the employees. We are the only industrialized country which allows this.
The end purpose of the Affordable Care Act (Obamacare) is to end with National Health, i.e., no private health care will exist. General Motors, which competes with auto companies worldwide whose employees are covered under national plans (Germany, Japan, S. Korea, etc.)would love to have their premium burden removed.The goal would be to have EVERYONE insured directly by the government.
The $26 million penalty cited is probably less than the tax deductible premiums Hobby Lobby is currently paying. The question would then be, is the penalty deductible as well?
The employees,of course, are always free to buy their own abortifacients. The government, knowing human nature, fears this would not be done despite how small the cost. The purpose is to make contraception/abortion universal and mandatory. It does not want to have to provide for what Hitler referred to as "useless eaters".
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written by Mack Hall, HSG, March 28, 2014
One imagines Justice Kagan as one of the Inner Ring at Belbury (cf CSL's THAT HIDEOUS STRENGTH) in whispered conversation with Frost and Wither.
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written by GKC, March 28, 2014
If what we have is another 5-4 decision on this particular case, then in my mind all respect for the SCOTUS is gone, however little is left anyway. They have become nothing but political hacks, each fighting for their own side. Or, this case is one where the division of opinion underscores a total division of personal philosophy about life, about the things that matter. As such, it only highlights the sad fact that we are no longer one nation. Either way, we lose or have already lost. Thanks again, Boomers! Roberts has failed in his goal of building more consensus on the court and equally failed in the big one on Obamacare, when he got scared.
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written by John Hinshaw, March 28, 2014
Kagan helped write this nonsense (Obamacare) and should not be involved in the hearing of this case. It's also a good time to notice the lack of inclusivity and diversity sitting on the Supreme Court. All of the three women come out of the fire-breathing feminism of New York City, which represents around 0.5% of women in this ocuntry.
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written by Dennis Larkin, March 28, 2014
Elena Kagan is a simple heathen.
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written by Ted Seeber, March 28, 2014
$2000 per person, with no benefit to either the business or the individual, is certainly a $26 million fine.

I always thought lawyers became lawyers because they couldn't do math.
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written by Carolyn, March 28, 2014
"Kagan the pagan."
Like who didn't see this coming?
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written by Jack,CT, March 28, 2014
The big concern was to get "Uninsured covered" and
Kagen simply throws out the option to just drop
all these employees!

26 Million Plus wage increases as to subsidize the
loss!
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written by Myshkin, March 28, 2014
The whole Obamacare thingy was just meant as a slippery slope to government run health care. That's the one thing Manfred misstates in his post: he still calls "insurance" when it would simply be government funded healthcare. You would NOT have any choice about anything in your healthcare. You would go to the clinics the government provides and take whatever level of care they supply. If you were in certain government decided categories (too old, too young, disabled, Downs Syndrome, etc) you would be simply given restricted health care ... and eventually euthanasia.
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written by Mr. Levy, March 28, 2014
Well put, Mr. Hinshaw. I would add that Kagan and those like her are as passionate as they are dim-witted. At this point, to call oneself a feminist is to announce one's ignorance and illogic.
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written by Mr. Levy, March 28, 2014
Carolyn -

You're right, but to answer your (admittedly rhetorical) question, who didn't see this coming: Republican senators Judd Gregg, Richard Lugar, Lindsay Graham, Susan Collins, and Olympia Snowe. They all voted for her confirmation to the Court.

And let's not forget, either, the self-styled "moderate" or even pro-life (in the instance of Bob Casey, Jr.) Democrats who did the same: Evan Bayh, Jon Tester, Bob Casey, Jr., Mark Warner, Jim Webb, and Kent Conrad.


http://en.wikipedia.org/wiki/Elena_Kagan_Supreme_Court_nomination#Senate_votes
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written by Guest, March 28, 2014
Kagan was educated at the "best" schools in the world. Like Obama she seems unable to reason even in a very basic way. I see how Obama could have graduated from The Harvard Law School. Apparently reasoning and intellect are not part of the selection criteria.
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written by Jon Do, March 28, 2014
This reminds me of a small business CEO who asked a BCBS insurance spokesperson at an 'Obamacare' seminar about a special case she had with one of her employees, and the spokesperson said that the best course was probably to drop coverage for all employees and pay the fine.

The bewildered CEO spent the rest of the meeting asking the other CEOs and business reps around her, "How can dropping insurance for all of my employees be the best answer?

Unfortunately, to a Harvard Law graduate in a government position of power, life in the USA is a zero sum game, with no allowance for ethical or moral issues - Federal money is an enticement for desired behaviors, and Federal fines/taxes force compliance.
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written by Sue, March 28, 2014
Manfred touches on the truth that the problem is in third party insurance itself, which was a Trojan Horse carrying the seeds of Obamacare, Single Payor (Monopsony) Medicine, and therefore State Executions as Therapy.

Third Party payment was NEVER a good idea, even when employers hosted it. It has been responsible for the ballooning of medical costs which has bankrupted many and ushered in Obamacare. It is like handing a blank check to a homeless person and telling him "go buy groceries for whatever will make you feel good". Would you not expect corruption and waste to be associated with such a policy?

It has led to bad medicine, unnecessary surgeries, dangerous pillpushing. I broke my ankle and the first doctor who I consulted wanted to do fullblown surgery with general anesthesia, knowing my insurance would pay for it. Luckily, I consulted two more MDs who each told me I needed only a cast. But the payment system rewards MDs like the first doctor because most patients don't feel the "pinch" of paying the doctor, so they don't question the treatments.

What we Catholics should be protesting is the individual mandate to buy third party insurance, which insures nothing but technocratic misery and state control. Let Catholics provide charity care to their co-religionists, like the Amish, and get out of the insurance business.
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written by Jack,CT, March 28, 2014
@Guest,so true to dumb it down a complete lack
of common sense!
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written by aed939, March 28, 2014
What if Hobby Lobby, in lieu of offering health insurance, started an employee hardship fund, which pays out benefits for, not only exceptional health-related expenses, but also other non health-related hardships? Would they then be required to pay only the $2000 fine or the $36,500 fine per employee?
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written by Ken, March 28, 2014
You can refute her argument on pure economic grounds so that even she can understand. She sees the choice as paying $475 million or paying $26 million to clear their conscience. What she neglects in her economic analysis is the utility value Hobby Lobby gets from paying for health insurance.

If they forgo paying for insurance they will pay $26 million and get NOTHING in return. They are not saving money they are actually paying money and not receiving any value in return. They completely lose the utility value of the insurance they are currently buying and are out an additional $26 million. Hobby Lobbys utility could be the satisfaction of providing insurance as you suggest but it also could be the value of being able to attract and retain employees or it could be the value of motivating the employees. It is entirely likely that Hobbby Lobby would have to not only pay the $26 million but also still spend the same amount or more that they currently are on insurance to obtain the same utility value they currently get from paying for insurance.

In the end, Kagans choice is not a choice at all because there is not economic equivalent between Paying for insurance now, paying for "non-compliant" insurance plus a $475 million fine and paying $26 million and getting NOTHING.
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written by Russell, March 28, 2014
"$2000 per person, with no benefit to either the business or the individual..."

Ah, but there is benefit to the individual. No longer having employer insurance, they qualify for insurance on the exchanges. And likely subsidies for that. Which insurance will not be restricted by the Greens' religious views.

I would be more convinced that this is about religious liberty if those on the Greens' side also were arguing that Jehovah's Witness employers should be able to put their employees into insurance that omits blood products, and Scientology employers should be able to put their employees into insurance that omits all psychoactive drugs. As it is, y'all seem concerned only about the religious conscience of Catholics, and maybe other Christians who think likewise on such issues. Employers whose religions have qualms with other medical technology? Not so much.
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written by Thomas Aquinas, March 28, 2014
Russell, your complaint is with liberalism. The fact that liberal coercion does not contain a limiting principle that can say at what point it is unjust for it to violate the religious liberty of business owners is not established by your retort. In addition, you not only slander religious liberty advocates, you commit the ad hominem fallacy. For the leading advocates for HL are diverse, ecumenical, and have supported a variety if religious folks including Muslims, Jews, and Christians from a variety of traditions. Think for yourself instead of engaging progressive automatic writing.
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written by PaulJ, March 29, 2014
My taxes helped fund an effort that killed tens of thousands of Iraqis, Afghanis, and Americans. I must pay my taxes. I must pay them even though I don't think the Iraqi and Afghani wars were ethical.

Yet I am an American. I believe America, overall, is good. For the good of America, I must pay the taxes asked of me.

My only recourse is to vote for the right folks. Same for the Green family.
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written by Sue, March 29, 2014
Paul J,

Should the Germans have paid taxes to the Nazis? How do you distinguish abortion chambers from the gas chambers?

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written by Rosemary, March 30, 2014
We will all end up being wards of the state.
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written by dave, March 30, 2014
I agree with all the posts here, and, today, especially Sue's. The problems started with Medicare and Medicaid, key provisions of the Great Society legislation which has wreaked so much havoc on the poor and everyone else in our Nation. Before Medicare and Medicaid everyone got covered as no doctor, educated in the ethical demands of the Hippocratic Oath (which forbade abortion, by the way) would turn away those who could not pay. And the poor paid as best they could: now in kind, now in scaled-down payments, but their dignity was protected.

I remember years ago reading an article in the Washington Post magazine -- this was in the early years of the oughts -- that argued it was abortion that brought the industrial model of medicine that we currently "enjoy." Mr. Levy is right and Mr. Myshkin is right, too.

I am reminded of Benson's Lord of the World. Let us hope that when the True Lord comes, we are ready and that we are as the wise virgins whose lamps were full with oil.

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