When the tea party movement first emerged, with its laser focus on fiscal responsibility and a balanced budget, it never really distinguished itself with a deep understanding of economic issues or the operations of government. Now that it’s joined the culture wars and shifted into divisive social issues it once eschewed, the movement doesn’t seem to have any better handle on law or policy than it did when it was warning President Obama to “keep your hands off my Medicare.”
Case in point: the Tea Party Patriots effort to insert itself into the religious freedom wars surrounding the Affordable Care Act’s contraception mandate. On Tuesday, the group held a rally at the US Supreme Court to “stand up for the right to choose,” during the oral arguments in the biggest case on the docket this year, Sebelius v. Hobby Lobby. The case involves a for-profit corporation with 13,000 employees and $3 billion in annual revenue that’s arguing the Obamacare requirement that the company’s health insurance plan cover most contraception violates its religious freedom. At the core of the case is the dubious contention that a corporation can hold religious beliefs.
Calling the event a “Freedom of Choice” rally, the tea partiers are co-opting the language of the reproductive rights activists who are arrayed on the other side of the case. On the Tea Party Patriots’ website, the groups insist that the case “isn’t about what Hobby Lobby, Inc. is or isn’t willing to provide to their employees. This is about everyone’s right to practice their religion without the government stepping in and telling them what to do.”
It’s obvious from Tea Party Patriots’ simplified description of the Hobby Lobby lawsuit and other statements that the group’s leaders are pretty clueless about the case (and the law). In a press release today, Martin claimed:
It is quite astonishing that the U.S. government, after forcing the health care law on the American people who overwhelmingly opposed it, has taken the further action of bringing a beloved family business to court to force them to violate their constitutional rights. The owners of Hobby Lobby have said repeatedly that they have no desire to make health care decisions for their employees. Why is the government forcing them to do so?
Emphasis mine. In fact, Hobby Lobby is in court precisely because its owners want to make health care decisions for employees—by denying insurance coverage for contraception to which it has religious objections. And the government has never forced a “beloved family business” to violate its constitutional rights. Leaving aside the fact that it’s not legally possible for a business to violate its own constitutional rights, there’s nothing in the Affordable Care Act that requires a company to provide health insurance for its employees, much less a plan that clashes with the religious beliefs of its owners.
As Georgetown law professor Martin Lederman has discussed extensively here, while the ACA includes an individual mandate that requires people to purchase insurance, there’s nothing in the law that requires their employers to provide it. But if a company does provide a plan, it must cover most forms of birth control, including the emergency contraception Plan B and Ella. If Hobby Lobby wants to avoid having its insurance plan cover these sorts of drugs, it can simply drop its insurance plan, pay a modest tax, and let employees buy their own plans on the insurance exchanges. (To be nice, the company could raise their pay to cover the cost of the insurance.) As government social programs go, the ACA has a pretty light touch.
The tea party’s framing of the issues in Hobby Lobby reflect the movement’s attempt to square its libertarian roots with its active courtship of the religious right. Not long after hitting the national political stage, fledgling and underfunded groups like Tea Party Patriots actively sought out evangelicals, particularly their deep-pocketed donor base. In turn, the “teavangelicals,” as Christian activist Ralph Reed dubbed them, demanded that GOP candidates, and the tea party itself, not ignore their pet issues like abortion and gay marriage in favor of more libertarian budget-related issues, and the culture wars were back in full flower.
Mark Meckler, a Tea Party Patriots co-founder who has since left the group, was initially adamant that the tea party would not engage in fights over social issues like the ones in the Hobby Lobby case. By the tea party’s heyday in 2010, he was telling a religious-right conference organized by Reed that tea partiers’ motivating force was not the national debt but anger over “this idea of separation of church and state. We’re angry about the removal of God from the public square.” Tuesday’s rally at the Supreme Court is evidence that the social issues the tea party initially vowed to avoid is really all that’s keeping what’s left of the movement alive.