30 June 2014

The First Amendment and the rights of conscience

The two Supreme Court decisions everyone seemed to be waiting for today were decided in large part on First Amendment grounds. In the Hobby Lobby case, the Republican majority ruled that a "closely held" private firm can't be compelled to provide coverage for birth-control procedures to which the owners object on religious grounds. The majority made clear, however, that this was not the same as allowing the owner to deny employees birth control; what the owner refuses to cover, the government can. In Harris v. Quinn, the same majority decided in relatively narrow terms that home health care workers can't be compelled to pay union fees if they aren't union members. Previously, although union membership wasn't mandatory, the union was the exclusive collective-bargaining agent for all workers, and it was thought that non-members should have to pay something in order not to get a "free ride" on benefits won through union action. As in other recent anti-union rulings, the majority decided that non-members should not be compelled to subsidize unions' political speech if they object to it. In effect we're back to money=speech, the idea here being that when compulsory contributions are dedicated to partisan or ideological speech, those compelled to contribute are being compelled to "speak" in a way that violates the spirit of the First Amendment. It was argued in the Harris case that even for the union to agitate for higher wages, to the benefit of the non-union employees, would violate the latters' First Amendment rights since a wage hike for home health care workers would mean more government spending on Medicare, to which the non-members may object, however self-defeatingly, on fiscal-conservative grounds.

Through history, dissidents have appealed to rights of conscience in refusing obedience to the national will. In the most obvious cases, some Americans have been allowed to refuse military service on religious grounds as conscientious objectors. The rights of conscience usually have been identified with religion, which is why, I suppose, they're identified with the First Amendment. Harris v. Quinn represents the ongoing secularization of conscience -- the equation of ideology with conscience. Implicit here is an assumption that ideological disputes are not settled by elections. That is, even if an election goes against your ideological preference, there are limits to your obligation to acquiesce in the result. Harris v. Quinn isn't the best example of this since the plaintiffs, as non-members, didn't even participate in whatever elections may have determined the union's political agenda. But the general point remains: the Supreme Court has effectively affirmed an ideological right to defy the representative will, at least on certain fronts. What about taxes, now? Dissidents on both left and right have long questioned their obligation to pay taxes if the government spends the money on things to which the dissidents object morally. Leftists, for instance, have objected to supporting a large, interventionist military with their tax money. If to subsidize is to endorse, as the current majority of justices implies, shouldn't pacifists have the right to withhold taxes from a state that "speaks" with guns and bombs? Or should we instead conclude that ideology is not identity, and that government acts -- or those of other collective entities decided democratically -- that go against your  ideology do not violate your conscience in a constitutionally-actionable way? Your real right of conscience under the Constitution is your freedom to protest. But the freedom to protest and an obligation to acquiesce can co-exist. Nothing stops a political minority in a union from speaking in favor of whom they choose, and against whomever the majority prefers. But the logic that frees the minority from any obligation to contribute toward the realization of the majority will points to the end of democracy itself. What is democracy, after all? We sweeten it with labels like "equality" and "freedom of speech" but it is nothing if it doesn't include a principle of submission -- a word with which few Americans are very comfortable. Exceptions can exist to the principle, but when the exceptions expand dramatically on dubious grounds, there may be no real rule before long.


Anonymous said...

Of course, the easiest solution is for the unions to have written in their contract that ONLY union members are entitled to whatever contract the unions get and any non-member is at the mercy of the corporate directors.

Insofar as the supreme court goes, it's about time their jobs were no longer lifetime appointments. Since they insist on adjudicating for the benefit of their party, when their party is out of power, they should be removed from the bench.

Samuel Wilson said...

Apparently state law where the case came from doesn't allow unions to discriminate between members and non-members. So the task for the unions is to get the state law changed. And the task for the rest of us is either to overturn life tenure for partisan judges or to enable "court packing" so the other party gets a turn to counterbalance the other party's judges.

Anonymous said...

A constitutional amendment barring the appoinment of anyone who is - or has been - a member of a political party.