[Ed. … because, says Epps, you can’t claim violation of conscience and demand to be excused from either one. Reminder: The problem here isn’t your fellow citizens’ consciences. The problem is government ordering you to do stuff.]
Some Arizona taxpayers might object, on grounds of conscience, to the diversion of funds from tax coffers to Christian schools; but those taxpayers had suffered no injury at all—the Court dismissed the case for lack of “standing to sue.”
It’s a pretty powerful strand of precedent. Even public benefits flowing directly to religion, the Court has repeatedly held, do not violate the religious rights of citizens—if they flow because of private decisions by other citizens. As the Court reasoned in the blind-student-scholarship case, these are precisely the same as if public employees take their wages and donate them to churches. It’s nobody else’s business.
If the Court cares for consistency, that logic is another nail in the Hobby Lobby coffin. Many taxpayers, religious and non-religious, object deeply to government aid to Christian schools, but legally, their outraged consciences are not injured by government funding that flows to those schools as a result of “independent choice.”
The reverse should apply. … Hobby Lobby does not pay for abortion drugs; it pays for an insurance policy. Neither the government nor the employer controls what an employee does with the benefits from that policy. Some will choose not to use contraception—conscience protects that private, intimate choice. Others will choose to use the benefits they have earned to pay for contraception they have a constitutional right to use.
Why is Hobby Lobby injured if the taxpayers in the Establishment Clause cases are not? The employee is making an independent choice also, one dictated by her individual conscience, and the employer, in a just society, can no more veto it than it can tell the employee what churches it can donate to.