Liberties are NOT out of balance in contraceptive cases

BYU law professor Frederick Mark Gedicks wrote an article (Liberties are out of balance in contraception cases) in the Washington Post, regarding the Hobby Lobby’s (and others) issues with being forced to pay for contraceptives. In the discussion, he argues that the issue is not the religious freedom of the owners, but that of the employees that is at stake.  For him, this is clearly an issue of the owners overstepping their bounds in proclaiming and imposing their faith on their employees.

Let’s look at this from another angle. First, no one forces an employee to work for a company.  In a free society, I can hire on with any organization willing to take a chance on me.  In hiring on with a company, I accept to follow the company’s culture and guidelines. I cut my hair, wear the uniform, do not go to work drunk, show up on time, etc.  If at any point I choose no longer to follow the corporate expectations, I am free to part ways with them, and they are free to fire me. That is how things work in a free society.

Only in a society based on non-liberty concepts do we get arguments as Gedicks suggests. Why must contraceptions be made mandatory in a health care plan?  Do they protect the life of anyone? Does the person have options to either buy his/her own contraceptions, or buy an insurance policy elsewhere that will provide the pill or condom of choice?  The individual retains choice, even if the company chooses not to provide contraceptives.  It does not affect the employee’s religion in any way (as if there are religions out there that require contraceptives as part of their worship!).  In fact, to mandatorily provide contraceptives in a company’s policy is to also force other employees to subsidize the same.

Gedick is under the wrong assumption (is he really a law professor at BYU???) that government has the authority to impose such things upon society.  Only in a totalitarian state is this true. Yet, the Constitution does not give to the federal government such power. Instead, we have seen a corrosion of freedom over the years, greatly accelerated under Presidents George W Bush and Barack Obama.

This same (il)logic would mean that any church that rents out a building for weddings, because it is now a commercial venture, must rent out to any wedding couple, straight or gay, or perhaps even group that wishes to tie the knot.  Don’t believe it? It’s already a problem in the state of Hawaii, with the receptions and weddings at the Polynesian Cultural Center now suddenly a target for gay weddings and receptions.

There is a reason why James Madison put freedom of speech, religion and assembly into the First Amendment. On those issues hang all other freedoms and true rights of the American people.  Gedicks’ reasoning would sound great in Europe, where religion is not an important issue for most. However, his reasoning is severely flawed in American Constitutional thought.  If the Supreme Court ends up agreeing with him, it will be one of the last nails hammered into the coffin of the US Constitution, as the Bill of Rights will no longer have any meaning or purpose.  If Liberty is out of balance, it is because there are many seeking to destroy God endowed liberty and replace it with government imposed definitions of rights. And it seems that Gedicks is on the wrong side of the Constitution on this one.

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About rameumptom

Gerald (Rameumptom) Smith is a student of the gospel. Joining the Church of Jesus Christ when he was 16, he served a mission in Santa Cruz Bolivia (1978=1980). He is married to Ramona, has 3 stepchildren and 7 grandchildren. Retired Air Force (Aim High!). He has been on the Internet since 1986 when only colleges and military were online. Gerald has defended the gospel since the 1980s, and was on the first Latter-Day Saint email lists, including the late Bill Hamblin's Morm-Ant. Gerald has worked with FairMormon, More Good Foundation, LDS.Net and other pro-LDS online groups. He has blogged on the scriptures for over a decade at his site: Joel's Monastery ( He has the following degrees: AAS Computer Management, BS Resource Mgmt, MA Teaching/History. Gerald was the leader for the Tuskegee Alabama group, prior to it becoming a branch. He opened the door for missionary work to African Americans in Montgomery Alabama in the 1980s. He's served in two bishoprics, stake clerk, high council, HP group leader and several other callings over the years. While on his mission, he served as a counselor in a branch Relief Society presidency.

18 thoughts on “Liberties are NOT out of balance in contraceptive cases

  1. The courts have ruled in the past that corporations (such as Hobby Lobby or the LDS Church) are creations of the State in which they are incorporated and, as such, are subject to public policy laws. Constitutionally, they can be forced to abide by these laws even if the owners have religious objections to the laws.

    I would recommend reading the articles at this website, particularly the articles on incorporation. They explain the legal realities people are subject to when they incorporate.

    Another good source is ‘In Caesar’s Grip’ by Peter Kershaw.

  2. Hobby Lobby is a private company. Unlike a public corporation that is owned by a myriad of stock holders (so there is no direct religious connection), Hobby Lobby is owned privately. The owner does not have stock holders’ religious views to deal with.
    Constitutionally, the courts have stated that corporations are people, and have Constitutional rights, including being able to spend what they will to support a candidate.
    So, the courts have not been exactly constant. The Bill of Rights, however, are constant.

  3. I don’t know that it matter what kind of corporation they are. If I start a small company and incorporate as an LLC, the company is still a creation of the state and is, therefore, subject to public policy law. It doesn’t matter if they are publicly traded. That’s my understanding from what I’ve read.

    You’re right about the courts being inconsistent, though. It will be interesting to see what the Supreme Court decides.

  4. So, Fred, you think people have a religious-liberty-based right to not have to pay for their own stuff. And you think that advocating such an asinine position advances the cause of religious liberty.

    A recent bar journal article complained about law schools that were turning out scores of highly trained academically-minded lawyers with absolutely no common sense. Now, I have a better idea of what they were getting at.

  5. Professor Gedicks is a wonderful professor and a very thoughtful individual and I am glad that BYU has a voice that is to the left of center (he is also the faculty advisor for the American Constitution Society). However, I think he is far off the mark on this issue. Employers are not imposing religious values on employees merely by requiring them to pay for the cost of contraception. I am currently working on an article in response to Professor Gedicks

  6. Just (snack) food for thought:

    According to the Supreme Court the Federal Government has the right to regulate interstate commerce (as upheld multiple times over the past 150 to 200 years), the issue at stake is how far is it reasonable for that regulation to go/reach? As a society we’ve chosen to have employers provide the vast majority of health insurance policies (stemming for historical development, not efficiency) so the issue then is for something which society as a whole is beginning to view as required for modern life (health care insurance) how much of a floor is it reasonable for government to define. If no floor at all is defined policies which are unrealistically restrictive or inadequate could become the norm (just could, not necessarily would). I can understand the arguments and see merit on both sides of this issue.

  7. The big issue here is whether corporations (as opposed to individuals and churches) have the religious freedoms guaranteed by the First Amendment.

    If corporations do have freedom of religion, people who work for companies owned by Jehovah Witnesses are going to get a shock when they get blood and/or organ transfusions and their company insurance won’t pay for it. Ouch.

  8. I would call your attention to the 1982 united states supreme court case of case of U.S. v Lee 455 U.S. 252. The court held that the Amish owner of a private business had to pay social secuirty taxes for his employess even though the Amish have relgious objection to socail secuity.

    I do not see how the contraceptive mandate cases can be distinguished form the Lee case.

    I would also point out that the case was argued for the United States by that well known radical lawyer Rex Lee who later became the first dean of the BYU law school and president of the Y.

  9. We need to remember that just because the government or Supreme Court decides something, it does not mean it is good Constitutional law. That the Supreme Court at one time stated that black discrimination was okay, and now opposes it, shows that they do not always follow the Constitution, but rather the popular swing of things in the country, instead.

    One of the reasons the founding fathers put the Bill of Rights in place was exactly for the concerns many have today: a government that uses its force to impose its will on people. Issues such as Amish or Catholic (Hobby Lobby) employers’ religious decisions should not be made by the federal government. Amendment 10 reserves such things to state and local government. In this concept, I’m talking about actual Constitutional readings, and not what a powerful central government can force upon the people.

    Reynolds v USA (the ruling that made polygamy illegal) is a court decision that may have to be looked at hard when the court starts taking up state and religious issues regarding gay marriage. You cannot tell a state government that they cannot determine what marriage entails because it is unconstitutional, while leaving Reynolds fully intact.

    Gedicks is right in that a totalitarian state can make whatever rules it wants to, and call it a “tax”. The book 1984 tells us all about NewSpeak. However, when it comes to being consistent constitutionally, we have to give sway to the First Amendment. And as I noted in the OP, no one’s civil or religious rights are being taken if the employer does not provide contraceptives or any health care at all for that matter. The healthcare that Jehovah’s Witnesses does not have to provide transfusions, as a person can get that healthcare elsewhere, or work elsewhere. So, such a point is a non-issue, a distraction.

  10. Again, this is a constitutional issue. Does the federal government have the right to create new rights? The Constitution was designed on the concept of negative rights: rights that do not cost anyone else for you to have.
    Liberals today are seeking positive rights, which requires taking something from one person to give to another. If we are going to insist that contraceptives are a “right”, then why not give everyone a mansion, a new car every year, and steaks on the dinner table (oops, we’ll all have to go vegan when the feds force it on us and eat vegetables). How far do we allow these new rights to go? Realizing that such rights are bankrupting our nation, suggests we are allowing these positive rights to go overboard, leading us to tyranny and bankruptcy.
    Better to have individuals work out their own healthcare issues, and get the feds out of it. We cannot afford the extra righs they want to force down our throats.

  11. rameumtom. The danger of making blanket assertions is that it always invites the use of an exception in a counter argument. So, contrary to your statement there are individual women who put their life in danger if they have a child. Severe diabetes is a simple example.
    I wonder if your libertarianism goes as far as Republican legislator Gordon Denlinger in Pennsylvania. He is proposing an amendment to the Constitution of Pennsylvania which would allow anyone or their business to discriminate against people, no matter who they are or for or for whatever reason, as long as it is based on a “deeply held belief.”

  12. Stan, I am not an anarchic libertarian. That said, I recognize there are exceptions to some rules (such as the woman who risks life by getting pregnant). How about the government provide contraceptives to women who need them, and then let other women who want them for convenience go get their own? Why must we be forced to provide wants to others, who are capable of providing for themselves? I want a new car. Can I ask the government to to your house and forcibly make you buy one for me?
    Our nation has long provided required medical care for people. But to force an employer or another person/business to provide for it means someone is losing liberty.
    As for the issue in setting up a bill to protect businesses that wish to have freedom of association, I don’t have a problem with that. It means that racists will lose business to someone else who is willing to open another similar business to provide for everyone. Let the market deal with it. Second, in Hawaii right now is the issue of any church that receives money for performing weddings or receptions, must now provide access to gay marriages. This means the LDS Church’s Polynesian Center, used for many weddings and receptions, will now have to open them up for gay marriages (they are fighting it in the courts). So, there is an active force, supported by fed and many state governments to deprive churches and individuals and employers of their inherent rights derived from their Creator and established in the Bill of Rights.

  13. Rameumptom, do you have a link to an article specifically discussing the Polynesian Cultural Center litigation? I’ve seen discussions of its situation as a hypothetical, but nothing suggesting that anything concrete is happening.

  14. Rame, is mandating contraception unconstitutional, or mandating any health care? If your answer is “any health care” then your argument should have nothing to do with contraception, which is simply one of many things on a long list of itemized mandates given by the FDA. Its just another excuse to try and demonize government mandates in general, by focusing on one tiny, controversial mandate.

    But in a universe where health mandates are considered constitutional, the universe where most of us live, Fredrick’s argument has merit, and is about the fact that some people’s religious beliefs can unfairly impose hardship (however small) upon what is considered to be a “right” by representative democracy today, as Tim’s Jehova’s Witness blood transfusion hypothetical example demonstrates. Since the USA has already cleary decided that it wants to make health care a right, the ONLY question that needs to be asked is which, of all health related procedures, are going to be included in that “right.”

  15. Again, it becomes an issue of negative vs positive rights. Negative rights do not impact anyone else if they are given to a person (life, liberty, pursuit of happiness). Positive rights require taking from one to give to another.
    The problem inherent in positive rights is: where do you draw the line? Why not also buy everyone a 5000 sq/ft house (with Olympic pool, jacuzzi, and live in maid and butler), free sirloin steaks, and quality clothing, etc? Why not buy everyone their own IPad, internet access, and let them all free load off the government? If providing contraceptives as a “right” in mandated health care, why not also mandate everyone who gets sick can go to the best hospitals and doctors in the world? Why not also mandate free experimental and cosmetic surgery for everyone? I could use laser eye surgery – why not impose that upon everyone else?

    OR, we can reduce the positive rights to a minimal amount to ensure people have a step up, not a handout. The Church’s program of reducing welfare by caring for immediate needs, but ensuring the person is then put on track to care for him/herself, is a good way to look at it. The bishop’s storehouse provides food, clothing, furniture, etc. Bishops can help pay rent and utilities. But for the most part, we seek to get people self-sustaining as much as possible. And we do not go for much in unneccessary items.

    Women and men can learn to be sexually responsible without contraceptives (they’ve done it for thousands of years!). In a nation that has a $17 Trillion deficit, massive personal debt, and slow job recovery, we need to realize that resources are very limited. I don’t mind paying for a child’s cancer treatment. I do mind spending money on freeloaders who cannot keep their pants zipped up.

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