Friday , July 04, 2014 - 7:03 AM
Friday was the Fourth of July and I hope you all had a happy and safe holiday. As I am writing this, I’m still happy and safe, but I’m not sure how I am going to be feeling on Saturday morning when you pick up the newspaper and flip to the business section. For the better part of a decade I have created my own holiday tradition. I take the family and we go up to Park City City Park and I play in the aptly named “old boys” rugby game.
In the rugby world, “old” constitutes 35 and older, so in rugby terms I’m practically an octogenarian, having passed the half century mark over a year ago. Rugby is a wonderfully violent game with all the hitting and tackling of football and all the padding of what everyone else in the world calls football (soccer). While most of you are probably happier having candy tossed to you from a float, barbecuing up hot dogs and chomping on watermelon and lighting sparklers while watching the fireworks bursting in the air, I feel like rugby is maybe the most symbolically appropriate way to celebrate our Independence Day.
If you question my sanity, thinking maybe I’ve been hit in the head too many times while playing rugby, don’t worry, I’ll explain. This last week the Supreme Court ruled in the Hobby Lobby case and to read the news you would think a) it was the best decision ever or b) it was the worst decision ever. The Supreme Court was divided almost evenly 5-4 over whether Hobby Lobby and other closely held corporations were required to comply with portions of the Affordable Care Act that violated the owners of the corporations religious beliefs.
I’ve read a lot about this decision and even read the actual decision, concurring opinion of Justice Kennedy and the dissent, but I have read almost nothing about what was really going on in this case. The case wasn’t really about contraception, health care or religious freedom. Certainly even Supreme Court Justices are human and they are aware that their decision will impact all three of those things, but from a pure legal perspective the Hobby Lobby case was only about the conflicting mandate of two different laws passed by Congress and the implementation of the law by the Department of Health and Human Services.
The Hobby Lobby case wasn’t a sweeping reformation of our Constitutional law. If anything it was an indictment against Congress’ inability to avoid divisiveness and its quick abdication of regulatory control. After reading the opinions, the Supreme Court wasn’t to blame for the outcome, it was just interpreting two laws that were vague enough that nine Justices could evenly disagree.
The real central part of the decision was Justice Kennedy’s concurrence. The Religious Freedom Restoration Act requires that if a law passed by Congress restricts the free exercise of religion for a legitimate government purpose, the restriction must be the least restrictive means possible. This is where it gets muddy and a little confusing. When the Affordable Care Act (“ACA”) was passed, Congress made it the responsibility of the Department of Health and Human Services to form regulations covering how companies would be required to carry insurance.
In the Court’s decision, no one disagreed that providing women health care and contraception was a legitimate government purpose. The entire case hinged on whether the regulations were the least restrictive means possible to implement the ACA. The problem was the regulations already accommodated non-profit religious institutions in a less restrictive manner than Hobby Lobby was treated. I don’t think I read any headlines saying the Hobby Lobby decision was all about fine tuning government regulations to be less restrictive on religious beliefs, but those headlines aren’t as interesting.
In the Hobby Lobby case, the Court was merely acting as a referee, deciding how conflicting laws should be reconciled. The real battle was and will be in Congress as the law is formed in the legislative battlefield.
Which is why I think rugby is the perfect symbol for Independence Day. We have a referee that half the people on the field disagree with, a bunch of people running around hitting each other as hard as they can and to the outside observer it can look like none of it makes sense -- a perfect analogy to Congress, the political parties and the Supreme Court. Oh, and the best part of rugby is after the game both teams head to the pub together to celebrate a battle well fought. If only we could do that with our politics. Happy Fourth of July.
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