Recently, I had a political argument with a friend about homosexuality and the law. We focused on the recent case of the photographer who objected to accepting a lesbian couple as a client for their commitment ceremony. He thought that the act of photographing the couple's ceremony would be forcing them to participate in something they disagreed with on religious grounds. (We "agreed to disagree" on the issue of whether homosexuality is a choice.)
Today, as the Hobby Lobby case is being argued at the Supreme Court, much of the discussion has focused on 1) whether corporations can really be considered to be "persons" and 2) whether they further can be considered to have religious beliefs, as such.
Within those considerations, the Religious Freedom Restoration Act , and the religiously-based case concerning the smoking of peyote (Employment Division vs. Smith) that it was a response to - is also invoked, as a way of asking when government has a compelling interest in interfering with religious practice.
Still others point out that the rights of a third party - in this case, women being denied a type of health insurance by their own employer (or that of a spouse or parent) - need to be taken into account, in a way that the peyote-smoking case did not involve.
But beyond all of these very scholarly questions, I wonder about perhaps a more basic question: What constitutes coerced participation in an activity?
Back when I was a (younger) volunteer activist for church-state separation, my co-activists and I staged a tiny protest of government-sponsored sectarian prayer in a small town. Our argument was twofold: 1) the county supervisors who were holding their meetings were representing us as citizens of the county; as such, they were symbolically representing us in their use of sectarian prayer, and that was offensive to those of us of a different religion, or no religion; 2) when we, as county citizens, needed to go to the county supervisors to conduct business, we were additionally confronted with the need to participate in the prayers being said on our behalf at the beginning of the meetings, or risk damaging our case before them.
To go back to my discussion with my friend: is a photographer taking pictures at a commitment ceremony either being represented by the couple and their guests, or being forced to participate in the ceremony? I would argue no. The situation is different from the government meeting example; their job is to document the event. If they would need to religiously agree with the ceremony, then Jewish photographers could refuse to accept Christian clients, and vice versa. They are not there as members of the party, or forced to ask the couple for lenience in a matter of local law.
in the Hobby Lobby case, the issue of the third party needs to go deeper, to a question of boundaries. A boss' religious belief should end with that boss' personal sovereignty - not extend to the bodies of their employees and their families. Simply carrying out their secular role as insurance providers cannot be seen as violating their own religious beliefs in this case. Certainly no one - not the women in their coverage, nor the Affordable Care Act, nor any other aspect of the Obama Administration - is forcing the employer to engage in the use of contraception.
In my view, it is this issue of boundaries and personal sovereignty - not any issues of corporate personhood, corporate religiosity, or even whether contraceptives are abortifacient - that is at the core of the Hobby Lobby case.
1
1
