Barry Lynn, Executive Director of Americans United for Separation of Church and State

This is point of inquiry for Monday, December 9th, 2013. 

Hello and welcome to Point of Inquiry, the radio show and podcast at the Center for Inquiry, a think tank advocating reason, science and secular values. I’m your host. Lindsay Beyerstein are my guest. Today is the Reverend Barry Lynn, executive director of Americans United for the Separation of Church and State. One of the nation’s oldest and most storied pro secular organizations. They’ve been active on everything from school prayer to marriage equality over the years. Barry Lynn is also the recent winner of the very prestigious 100000 Dollar Puffin Nation Prize for Creative Citizenship, which will be awarded to him next week at the nation’s annual gala dinner. Fun fact about our guest used to co-host a radio show with Colonel Oliver North. So we’re here today because last month the Supreme Court agreed to hear a case in which a corporation is Hobby Lobby. A chain of hobby stores based in Oklahoma is challenging the birth control mandate of the Affordable Care Act. And this has huge implications for the separation of church and state and for medical freedom and people’s freedom to make their own medical decisions. Welcome to the program, Barry. 

Very nice being here. Yes, this is a super important case. The United States Supreme Court. Oh, this is just right. 

Really? What is this about? Any federal agency was that they don’t like because he allegedly actually violates principles. 

So if Hobby Lobby were to prevail before the Supreme Court, would that open the door for, say, a Jehovah’s Witness company to not insure blood transfusions or a Christian science company to not insure anything at all in terms of health care? 

It seems to me that if they get away with this argument, in this case, Hobby Lobby, a Catholic company, or in the case, in fact, this case is also being heard by Ross, will be able to express himself. And there’s no there’s no way to stop Scientology from refusing to cover psychiatry because they don’t believe in that. 

Or, as you point out, Jehovah’s Witnesses and even, frankly, a more comprehensive way. Many of the tablets that are used by pharmaceutical companies, the gelatin that covers the medication isn’t that uses beef or pork products, which makes them unusable under the belief systems of many Muslims, for example. So this is a really big deal. Just on the medical front, as I pointed out. Also, if you can be exempt from an insurance law that’s supposed to bring medical care to everyone, why not just ask to be exempted, as some of these groups already have from pay equity statutes and civil rights laws affecting the employment of lesbian and gay Americans? 

I mean, there’s no stopping this. Once you go down this slope of exemption based on religious claims for for profit companies, that’s really the issue, isn’t it, that these are these are for profit large employers. 

Right. Actual actual religious organizations that employ people already have an exemption under the Affordable Care Act. Right. 

Yeah, they they have a kind of middle range. I frankly don’t think that it’s necessary to exempt big Catholic hospitals or university connected to a religious organization from contraceptive coverage. So I would go further than just saying, of course, big corporations don’t have this kind of conscience that should be recognized legally. I mean, what these folks really want is to create a kind of fictional corporate conscience. The next time I see, you know, in the case of Hobby Lobby, maybe a do it yourself, a gnome sitting next to me in a pew in church or the next time I sit on a piece of wooden furniture made by a Mennonite company and it starts praying with me. Then I would say, well, maybe it does have a conscience. But corporations don’t have a conscience. Many of your listeners probably were very angry with the Citizens United case who gave very broad free speech rights to companies. Well, if you don’t like free speech rights for companies, you certainly don’t like conscience coverage for those same companies. 

Companies are legal fictions and they have they’re not natural persons like humans. It’s it’s a convention as to which rights they have and which rights they don’t need relative to personhood. What is the legal argument for why a company should have, say, the right to speech, but not the right to vote? 

Well, that’s a very good question, because the last time I was at a polling place, I didn’t see any companies there either. On the other hand, the argument here is that we allow people in a business to set up a corporation for the purposes of getting certain legal rights and avoiding certain legal responsibilities. In general, if you’re set up as a company and your company has a grocery store and it lets you go ice water, run out on the floor and you trip over, you don’t sue the members of the the owners as such of that grocery store. You sue the company. They set themselves up as a corporation to protect themselves. Now, when it becomes convenient for those same people who set up a corporation for their benefit to now all of a sudden sudden start talking about their individual rights of the guy who runs the company, they really want to have it both ways. I am even sensitive to the fact that obviously corporations have some free speech rights. I mean, they advertise and we want them to advertise. They have a right to do that when it comes to exercising religious activity or religious freedom. I think it’s an absurd claim, but it’s. Made by the religious right. It’s being made by the United States Conference of Catholic Bishops. And luckily, the administration is on the right side of this issue. The Obama administration is defending this provision of the Affordable Care Act, something they do, shall we say, don’t always do about other church state issues. 

How does the Religious Freedom Restoration Act figure into all this? 

You know, the Religious Freedom Restoration Act, which was supported by large numbers of groups, including the American Civil Liberties Union, where I worked at the time, that this whole piece of legislation got started because it was always supposed to do is to say, let’s say you’re a Muslim firefighter and you want to grow a beard and there’s a no facial hair rule. And this said, if this is a religious claim that you make, since it doesn’t have any effect on anybody else, go for it. Do it. Many of us think that, you know, anybody should be able to wear facial hair under most circumstances, that it shouldn’t be just given to religious groups. But religious groups have a plan. They made it and it seemed reasonable. Nobody during the many years that Religious Freedom Restoration Act was being discussed. Nobody ever thought that this applied to for profit companies to the extent that it said churches could make some decisions on their own, like what’s sometimes called church autonomy. Where do you put the altar? In a building. A government can’t come and say it should be on the right side if you think it should be on the left side. I mean, it’s this kind of very modest protections for the right of people to worship if they choose. That was what the statute was all about. There is not a shred of legislative history that suggests this was for Hobby Lobby, for the Mennonite furniture company or for the other groups, the car parts and other people who are out there agitating about why they should be exempted from the Affordable Care Act’s provision of insurance coverage for contraception for women employees. And some of these companies are huge Hobby Lobby employees, thousands of women around the United States, and they will be the dictators of the conscience rights of those employees if they prevail at the United States Supreme Court case will be heard in March, decided probably in June, and it will be a watershed in church state law. 

Could argue that Hobby Lobby is asking for the freedom to impose its own religious agenda over its oversight of its employees. 

Yeah, I mean, it’s not so much Hobby Lobby. And I don’t know what Hobby Lobby is, General. You know, if you took a poll of their employees, I suspect, when it came to women employees like the rest of the public. Nine out of ten women will have used contraception. But it’s the boss. It’s the guy who runs the company. It’s his religious views that are, in this case, being foisted on all of his employees. So it’s it it’s not that I would I would not say the companies have any any of these positions themselves. But in this case, the president of the company does. The president and the company is the one who rules in these employee policies. If the United States Supreme Court buys this bogus argument. 

The Religious Freedom Restoration Act says that the exception is when there’s a legitimate state interest. If this if the anti Hobby Lobby side is going to prevail, what state interests are they can articulate in terms of what they’re defending? 

Well, they’re actually they’re going to say, look, there’s no legitimate state interest here because insurance coverage for contraception isn’t that big a deal. They’re going to say, I mean, even to go out and buy a box of condoms and it only costs a few dollars. And the the side the other side, the administration and those of us that will support it in front of the court briefs will argue that there is a legitimate state interest in creating an health care system that works and that works for men and for women. It works for the rich and the poor. This is an effort to have a comprehensive system of health care. Finally, in America, at least the beginnings of a comprehensive system. And that’s the argument that we will we will use. And I think it’s a very good one. The Omeish who have filed a number of important lawsuits, sometimes good lawsuits, sometimes not good lawsuits, once claimed that they should not only be exempt from Social Security themselves because they won’t take it and they believe that the community should give them help at retirement, not the state. But they also said we don’t want to take Social Security out of any of our non Omeish employees who work for an Amish company. The Supreme Court soundly rejected that idea over 20 years ago. It’s very similar in some ways to the challenge that Hobby Lobby is making. And it’s certainly going to be a case that the Hobby Lobby side will need to distinguish itself from if it thinks it’s going to get five votes in this even in this conservative United States Supreme Court. 

Hobby Lobby and the other case that’s coming before the Supreme Court. The kind of stoga with specialties are arguing that this violates their religious beliefs because certain birth control technologies cause abortions. But that’s very much against the consensus of the medical community. Does it make any difference in terms of their likelihood of prevailing, whether or not they’re empirical claim is true? 

You know, I don’t think that it is likely that the Supreme Court will decide this on the basis of this competing scientific claims. And by competing claims, I mean, there’s, you know, 95 percent of the people on the side that say that these methods of birth control do not induce abortion. They do not prevent implantation of a fertilized egg. But the five percent of the people, scientists or biologists on the side of a right to life movement, for example, they will argue that the science supports the idea that intrauterine devices in the morning after pill and everything they don’t like, in fact, is an abortion inducing drug and abortifacient. That’s what they’re going to say. I don’t think the Supreme Court will honestly resolve that scientific question. I think they’re going to say as long as this is a medical procedure which is permitted by law, we haven’t overturn Roe versus Wade, although, of course, the same people on the opposite side of us in the Hobby Lobby case would love us to repeal Roe vs. Wade also. But as long as it’s a right that can be obtained by people, I think they will look and see whether this whether you can make a credible case that a company has a corporate conscience and that that conscience is more important than the moral decision making of individual women. That’s where I think the rubber will hit the road. They will interpret the Religious Freedom Restoration Act. And if they interpret it broadly and beyond the scope of anything it was intended. Hobby Lobby will win if they interpret it the way that the all the evidence suggests. And my personal experience with this statute indicates is true, then people like us will prevail. 

Any distinction the way between religious freedom of religious expression, you know, things we normally think about in terms of having rituals and choosing which God you pray to or don’t pray to, versus what Hobby Lobby seems to be saying, that their religious freedom, what their religious freedom involves never doing anything that is against the tenants of their religion. Is there a conceptual divide between those those two kinds of things? 

Well, I think they and these companies, as well as the United States Conference of Catholic Bishops, have done a very effective job of confusing a lot of Americans kind of in the middle of his church state issues over the past year or so. 

And what they’ve argued is that religious liberty can only be protected if corporate entities, including big hospitals and or in these cases for profit companies, can exercise something that is previously unrecognized in the law and that is a corporate right to religious freedom. Now, we do know that churches have some rights, all corporations have some rights. We don’t eliminate their ability to do things without utilizing due process of law. So this is the same constitutional standard we use in so many cases. But I honestly don’t think that in this case, you can make a credible argument that this is about religious liberty. This is about whether a religious organization or in this case, a for profit organization whose boss happens to be very religious, can supersede the conscience claims of employees of third parties. Does this have an adverse effect on third parties? Of course, because contraceptive contraceptives they’re talking about in this case are not even used merely for birth control, although I don’t think it’s going to sort of be the turning point of the case either. 

But we do know that many women take some of these same drugs for other purposes and they are unrelated to family planning or birth control. So this is such a sweeping claim. We won’t do it. We won’t cover these drugs that it does have an impact on the health of women generally, even if they’re not using this for family planning. So they’re making a lot of extraordinarily broad arguments. And this is only remember, in as you mentioned earlier, in the medical arena, when it comes to other laws, they don’t like whether their pay equity based on the fact that they think that the man should be the head of the household and therefore women don’t need to be paid as much as men or whether they make arguments that the civil. Laws shouldn’t apply to them because they feel more comfortable with people just like themselves. I think we’ve heard that argument throughout the history of race relations and gender relations in this country. There are always groups that say sadly, often religious groups that say, well, we think black and white people should be in different places because we feel more comfortable that way. 

And then they might also footnote. And we can find some way that the Bible can be contorted to support our view. 

There were dozens of these similar court challenges in the lower courts, but the Supreme Court decided to hear these two. Why do you think they chose these ones? 

I think they chose these because they wanted a split. That is, they wanted to take one case where the employers had one and one where the employers had lost. And they also did not want to take only cases involving Catholics, employers. I think they also wanted to take the kind of Stoga furniture company case because it does involve Mennonites who, to my knowledge and I have done some work on this. The mean I church doesn’t actually seem to take a position that is against the use of contraceptives. But this individual Mennonite who runs this individual company has decided on his own that he doesn’t want people to use contraceptives. 

Does that raise issues in and of itself when you have people who are asserting that they don’t have to follow certain laws and calling them religious beliefs? Is it legally significant whether their interpretation of what their religious beliefs, the tradition they’re part of is actually correct? 

Yeah, that’s actually an excellent question and a kind of unresolved one, because a lot of people assume that you have to have some kind of doctrinal position to fall back on or some doctrinal position to point to. Occasionally courts do that, but they they do so with a little sense of nervousness, because the idea that the court is going to decide whether something is a central tenet of a religious group or whether the interpretation by the leaders of a church are the only interpretations that will be given any kind of legal credence. That’s a big deal in itself because many of his even a staunch church state separationists and secularists in the sense that we want the government to be entirely secular, we do get a little nervous when the members of the Supreme Court start to pass the theology of individuals or institutions. So in general, if you say as an individual, I interpret my religion to be X, even if the boss says it’s Y, you’re going to at least get listened to in the federal courts. You’re not going be thrown out because you can’t prove that this is a doctrinal matter that came down from, if not heaven, at least from the hierarchy of your church. So it’s still kind of an unresolved question. But in this case, the Mennonite owner of the furniture company really said he’s not trying to argue that every Mennonite believes as he does. He just says, look, I look at religious experience. I look at scripture, and I’ve concluded that I can’t be a party to the provision of birth control. 

Where does that leave atheists and other non religious, non theistic traditions? And if isn’t considered a religion unto itself. 

For legal purposes, the Supreme Court in the past, in general, Acey ism is assumed to be a system of belief that is comparable to and held in high regard in the same way that the theists hold their religion in high regard. 

But there are very few cases that actually get to the United States Supreme Court to deal with Acey ism at all. The they tend to be resolved, for example, or Herb Silverman, who perhaps has been on your show, wanted to be a notary public in South Carolina. And there was a statute that said, if you don’t believe in God, you can’t hold any public office, including being a notary public in unsign. That there’s some guy coming in for a car loan is actually the guy who says he is. And Herb challenge that successfully in the courts. But a case like that did not get to the United States Supreme Court and the court didn’t want to take it. It seemed obvious that at a minimum, wages could not be prohibited from being, you know, this kind of a. a worker in South Carolina. Some there are some justices, I think Justice Scalia in general, and Justice Thomas, although he doesn’t say much about he doesn’t say much about anything. 

But he. 

He has Scalia has suggested that maybe atheists don’t have the same rights as religious people and that their ideological position is not one that you can bring into court using the same kind of First Amendment arguments that a Catholic or a or a Methodist might use. So far, luckily, that view is in the minority. But I think we have to be very cautious about this idea that the religious freedoms, so to speak, of people only roles to people who have theological views and not those who have considered them and rejected those views. 

So what would happen if Hobby Lobby were to prevail? And I’m an atheist and I own a corporation and I happen to have an ethical belief that generic stre it’s it’s wrong to use generic drugs for some reason. 

Would that count that as a religious belief that’s entitled to the same protection as the contraceptive issue? 

Well, listen, although there’s nobody planning to put me on the United States Supreme Court, but if somebody did and I was on the court, I would say, of course, you could make the same argument and he should be allowed to make the same argument. Just as you know, there are very liberal religious denominations that have been concerned about population growth for a long time. And they they might suggest I’m not sure that anybody’s done this yet, but they would even suggest from a theological viewpoint, you know, I’m not going to cover birth costs of more than two children because I think it’s morally irresponsibly it’s ethically irresponsible for this country that uses so much of the world’s resources to begin with that to encourage people have three kids or four kids or five kids. That would be a religiously based argument. Arguably, it should be taken into consideration, as should the atheist argument that says if one is constructed, you know, we’re just not going to cover something else. We’re not going to allow this because we have ethical objections to it. Whether that would happen with the atheist claim. It’s very hard to tell because so few of these cases are based on the idea. Atheists bring a lot of cases. Let me clarify this, but they don’t necessarily bring them on behalf only of atheists when atheist groups take a position about a matter of church state separation, with very few exceptions. I can’t really think of any right now. I would say right on do it. This is exactly the position that Americans United for Separation of Church and State would take. It’s the same position I would hope the ACLU would take and I would hope a lot of religious groups who care about separation would take as well. So atheists often file suits not just to protect their own interests, but the guarantee, or at least to help us prove that there is and should be a decent distance between the institutions of religion and those of government in the United States. 

Do you feel that Hobby Lobby is has a larger agenda against Obamacare as a whole, that this religious freedom has been used as a bit of a fig leaf for hostility to corporations having to participate in insurance in general? 

You know, I think that Hobby Lobby, I can’t speak for Hobby Lobby’s higher agenda or lower agenda. I wouldn’t doubt that it’s there, but I’m not sure about that. What I am sure about is that the United States Catholic Conference that supports their view that most of the religious right supports their view, they do have a hidden, not so hidden agenda and hidden agenda or not so hidden agenda is we want to be able to exempt ourselves from any laws that we don’t like that we find religiously objectionable. So that’s why when some of my friends talk about this as if it’s merely about contraception, I have to correct them. And I’d say it’s about exemption by companies from the laws that apply to the rest of us and that impose costs or burdens or do something which people may find objectionable. There’s no question that the religious right hates the whole Affordable Care Act. They don’t only hate this provision of it. They’ve always hated it. They’ve always hated this president even before he got it passed. So when you start with that premise, you know that this is one of the weapons they want to use to try to tear the statute apart. Having failed to do the thing that they had hoped they could do earlier, and that is two years ago, dismember the Affordable Care Act by claiming that a personal mandate, an individual mandate was unconstitutional. In that case, they lost the chief justice. And that’s why we we have the Affordable Care Act going in. Effect, albeit slowly, and tripping along the way, but it’s going into effect on January 1st. So they hate the law. This is one more way to nit pick at one section of it and to achieve a whole another ding into the credibility of the Affordable Care Act. And then, as we said earlier, a broader sense that they will then go and say, what other laws do we wish to be exempt from following? 

How optimistic are you that the administration will prevail in the Hobby Lobby case? 

I am guardedly optimistic about it. And I say that because there is a point where if you allow because of this federal statute, if you allow every company to be exempt from anything they don’t like, all of a sudden it sounds like you created this gigantic loophole in this law and perhaps every other law where people just do whatever they want, follow whatever laws they want. That’s not called government governance anymore. That’s called anarchy. And I don’t think that the members of the Supreme Court in general are willing to go that far. I don’t know how you draw the line, as we discussed earlier, if it’s okay for a Catholic or a Mennonite employer to do this, why not a Scientologist? Why not as a Jehovah’s Witness? Why not a Christian Science person who doesn’t want to cover any kind of medical corps? There’s just no place to draw the line. Once you go off this cliff of saying companies have a conscience and companies can do anything they want. In regard to the laws, they don’t happen to like. So it’s a dangerous road. I think that there are probably people even in the middle, the justices we usually think of, as in the middle, Justice Breyer, Justice Kennedy, who are not going to want to go down a road that seems to have no end but may be a drop off of a cliff. 

So how do you anticipate it? 

If the administration does prevail, that the Supreme Court would would frame frame its rejection of Hobby Lobby, would they say that it’s the state interests is so strong and that it’s not prohibited by their Religious Freedom Restoration Restoration Act? 

I, I think the most likely resolution where you could probably in my scenario and everybody doesn’t agree with it, of course. But in my scenario, five members ultimately conclude that the Religious Freedom Restoration Act is about a very narrow set of things, things that do not have a negative impact on third parties and that it was never intended to be utilized in this way. That’s what many of the courts that we filed, friend of the court briefs and all of these cases and the ones where we and the administration have prevailed. It’s generally because the court says this statute, this law, this federal law has nothing to do with this set of facts. 

And with the sticking point be that that will be a Religious Freedom Restoration Act, never anticipated the intersection with corporate personhood. 

I don’t know that they I don’t think they’d go that far because of what they’ve said about corporate personhood in regards to free speech claims. I think they would just say that the record is devoid of any sense that this kind of situation was to be covered. When you will find discussions about the firefighters with the beer, you will find beyond like someone to wear a yarmulke into a workplace and somebody objects. If somebody wants to wear a yarmulke during a basketball game, as a kind of famous case involving John Shook is being worn by students in a basketball game in the Midwest and told they couldn’t and that you will find some statements in support of homeschooling, which is largely done by religious right advocates. Although there are some liberal and progressive parents who homeschool, you will find that there are comments in in the debate about the Religious Freedom Restoration Act, where Senator Hatch, for example, one Senator Kennedy who supported the bill himself, would agree that parents have a right to determine within reason what kind of education their children should get. 

But you don’t find any examples that remotely look like a crafts company deciding not to cover a medical procedure, a medical device, a drug that they don’t approve of. That would have been unthinkable. This statute would never, ever have been passed by the United States Congress if anybody had dared to bring up a fact pattern like this and said that’s what this law is all about. It simply would never pass. Passed me. I can’t. Senator Kennedy would never have even supported the measure. 

Is quite a departure from from what people were talking about with the original case. Well, thank you so much for being on the show with me today. Really appreciate it. And congratulations on Your Nation Puffin Award. Any plans for what you’re going to do with the honor area? 

It is a wonderful prize and I am actually donating it back to Americans United for Separation of Church and State for special project that we’re going to be doing next year. I think that these awards and I was incredibly honored to get to get this to be told that I was going to be in the line of people like Robert Moses, Jim Hightower, Cecile Richards, Tony Kushner or other previous winners that I could even be in their shadow is something that I feel very humbled about. 

However, nobody gets an award like this unless they have the support of people from the beginning of their career, people who mentor them, and then they know they don’t achieve any of the results of issues that I’ve been involved with. Unless you have a staff of people, donors, supporters, people who are willing to help you and make sure that the causes you care about is something that can be achieved. 

So I view this as a prize for all of those who work with me and all my colleagues here. And that’s what I’m going to do with the money. 

That’s wonderful. I hope you’ll come back and tell us about the special project sometime. 

I’d be happy to do that any time. I appreciate the time on the show. Take care. Thank you. Belike.