I haven’t read all of the reactions to this past week’s Burwell v Hobby Lobby decision, so perhaps I missed this, but I haven’t seen much of what I thought would be an obvious reaction when I was much younger. This post is an extension of the comment I left at Althouse when the decision came down on Monday.
One of the saddest things to me about this situation is that the ACLU sided with HHS in the Hobby Lobby case. Growing up, I understood the ACLU as being centered around the idea in a quote from Roger Baldwin cited in this PBS piece on the Constitution:
Indeed, the only thing predictable about giving the government the power to censor speech is that it will use that power unpredictably. The founder of the American Civil Liberties Union, Roger Baldwin, put it well when he said, “In order to defend the people you like, you have to defend the people you hate.”
My approach to applying Baldwin’s big idea is to do the thought experiment based on how a ruling would apply if the politics/beliefs of the situation were reversed. How does this apply in Hobby Lobby? Living in Texas, it doesn’t take much imagination: less than a month ago the Texas GOP endorsed gay conversion therapy in it’s platform. Is it so hard to imagine an HHS mandate from a right-wing administration to include that in all employee health plans?
I expected to see counter-hypotheticals like this in the coverage of Hobby Lobby, and it’s the kind of thought experiment I would have expected from the ACLU I grew up with back in the days of the Warren Court. Perhaps this argument is being made somewhere and I’ve just missed it. Perhaps progressives are OK with including such therapies in health plans. After all, no one would be forcing employers to make their employees use the conversion therapy; it would just be available for those who wanted it, as the IUDs and Plan B would be available to the subset of Hobby Lobby employees who wanted them. This story shows that people are not indifferent to whether or not others can choose this particular “treatment”.
The Supreme Court declined on Monday to hear a challenge to a California law that bans “conversion therapy” aimed at changing the sexual orientation of gay and lesbian minors.
The court, in rejecting the case, effectively let stand a federal appeals court ruling issued last August that said that the state’s ban on the practice did not violate the free speech rights of counselors or people seeking treatment. The appeals court had said that the state had an interest in banning professional treatments it considered harmful.
Alternative title for this post: the Parade of Horribles marches both ways. Happy Independence Day!