THROUGHOUT history, people have fought the good fight to preserve those things of value and fundamental importance that define the essence of being human. Our Founding Fathers raged against the tyranny of their colonial overlords. African-Americans and their allies rode the freedom train against a virulent tide of bigotry. Women struggled to earn what should have been their birthright - a political voice. Activists like Cesar Chavez labored to bring dignity to the migrant worker. Liberty, equality, respect and a living wage were all things that were won through the sacrifice of people who recognized that certain things in life are neither negotiable, nor free.
This week there was another, bloodless battle that took place in our national courtroom, but it was no less passionate than the ones fought at Lexington and Concord, in Hattiesburg, at Seneca Falls and in the orchards of Salinas. On Tuesday, a group of plaintiffs fought to preserve their inalienable rights to worship without government interference. And the government pushed back on behalf of what it believes matters most to American women: free birth control.
Many who support the Obamacare contraceptive mandate, one that forces employers to pay for insurance policies that cover artificial birth control, might object to that description of the controversy. I don't blame them; crusaders for freedom, equality and dignity end up on pedestals; crusaders for freebies end up as the butt of jokes. I'm fairly sure that supporters of the mandate don't appreciate the irony of their position, advocating for female autonomy while demanding someone else pay for it, but the rest of us who stand with Tuesday's plaintiffs certainly do.
Randall Wenger, an attorney for one of the plaintiffs, Conestoga Wood Specialties, had a different idea about what was really at stake: "This case is about something extremely American; freedom. If government is in the position of telling people they need to violate their conscience in order to earn a living, we cease to live in freedom."
Conestoga, along with the lead plaintiff in the case, Hobby Lobby, is a for-profit corporation run by Mennonites who oppose any form of abortifacient birth control. They sued to have the contraceptive mandate declared unconstitutional. As noted by Wenger, they are upholding the noble American tradition of fighting for intangible rights that define what it means to be a fully-participating citizen of a country built on the primacy of the individual.
In prior generations, they would be the ones on the pedestal. For this one, filled with people accustomed to viewing much of life as an "entitlement," these good people are considered roadblocks to a subsidized benefit. More than that, they are ridiculed for their principled opposition.
It is amazing how the government has twisted this controversy into a battle between the greedy and overreaching "church" and a "state" that stands as a bulwark against the growing caliphate or Christendom. As a lawyer, I think that's preposterous. Under both the Religious Freedom Restoration Act, as well as the Free Exercise Clause of the First Amendment, it's difficult to see how you can force a company - which is, in the end, an extension of the people who run it - to provide services and products that violate sincere, profoundly-held beliefs. This is particularly so when the aggrieved employees have the freedom to either choose an employer who is willing to subsidize their birth control or, even better, pay for it themselves.
Contrary to what the chattering classes would have us believe, this is not the case of women being barred from using contraceptives. In our post-Griswold society, that's a ridiculous suggestion, or, as we lawyers call it, a red herring. This is a case of protecting religious employers from having to guarantee access to a product that puts them at odds with their faith.
A lot has been made of the fact that the plaintiffs in these cases are corporations, and that corporations can't pray or seek sacraments (even though, according to Citizens United, they are persons.) That, however, is entirely beside the point. The so-called corporate veil is a legal fiction that protects individual owners from being sued in their personal capacity. It isn't a social safety net designed to strangle them if they try and exercise legitimate constitutional rights.
The crusaders for free birth control are visibly nervous about this case. They've pulled out the big rhetorical guns, warning about how a victory for the plaintiffs would mean that companies could then discriminate against gays, the disabled, immigrants, Democrats and all of society's dispossessed creatures. They also seem to imply that if the government loses, women will all be fitted with chastity belts (which I doubt is covered under Obamacare anyway.) The hysteria is hysterical.
This is a battle for all of us who believe in freedom, whether religious or reproductive. And you don't have to agree with the plaintiffs to realize that if they are forced to ransom their souls, we are in danger of losing our own.