Why Hobby Lobby is wrong

The United States Supreme Court begins hearing arguments tomorrow in case Kathleen Sebelius, Secretary of Health and Human Services, et al., Petitioners v. Hobby Lobby Stores, Inc., et al.[1]

The Affordable Care Act, which has survived prior challenges in the Supreme Court relatively unscathed, mandates that most employers, including the for-profit Hobby Lobby, must provide insurance coverage for contraception. Hobby Lobby, claiming that the requirement violates the company’s religious principles, has refused to comply with the mandate. Hobby Lobby’s challenge is largely based on the Religious Freedom Restoration Act of 1993 which sets a high standard that the federal government must meet if it places burdens on the free exercise of religion.

But Hobby Lobby and its supporters are wrong.

Mechanism of action of oral contraceptives

Hobby Lobby objects to the use of oral contraceptives by women because it maintains that they act as abortifacients. Of course, it that were true, they would have a case. The federal government is prohibited from funding abortion services by the Hyde Amendment. But the problem with this argument, is that oral contraceptives don’t work as abortifacients. This is a void argument.

Hobby Lobby is not entitled to the same First Amendment protections as private citizens

If Mr. Steve Green, president of Hobby Lobby Stores, Inc. wishes to stipulate that his wife and minor female children not use contraceptives, then he is free to do so without interference from the federal government. But he is not free to assert that his company has the same rights as a private citizens. Even über-conservative justice, Antonin Scalia, writing for the majority in Employment Division v. Smith understood the risk of allowing individuals and groups to circumvent the laws of the land by declaring exemption on the basis of professed doctrines. He wrote that: “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”[2]

In other words, the majority’s fear in Employment Division v. Smith was that anyone could claim religious exemption to any law. Anarchy would be a foreseeable outcome. It’s not hard to imagine that one of the prosperity gospel megachurches might interpret the scripture as prohibiting income tax. This is untenable.

Contraception is a vital part of women’s health care

Some Hobby Lobby supporters maintain that the cost of contraceptives is trivial and that women should just pay for them out-of-pocket. Well, many effective antihypertensive medications are cheap, too. Why isn’t Hobby Lobby fighting against antihypertensives and antibiotics. This isn’t about cost. The cost is a smokescreen.

The World Health Organization has repeatedly emphasized the vital role of contraceptive and evidence-based family planning in the health care and economic viability of women worldwide.

Again, Hobby Lobby is not a person.

Hobby Lobby is a large retail company with thousands of employees. It is not a person. A person, the president, has strong religious beliefs - to which he is entitled. But he is not entitled to extend his beliefs to employees of the company. The US Court of Appeals for the 3rd Circuit ruled recently that “for-profit, secular corporations cannot engage in religious exercise” and thus could not invoke protection under the Religious Freedom Restoration Act of 1993.[3]

“Just work somewhere else”

Some have argued that employees and prospective employees who don’t like the way Hobby Lobby is run can work elsewhere. After all, as a potential customer of the store, I “vote with my feet” and don’t shop there. However, with respect to employees, this is illogical. If Hobby Lobby were allowed to operate in this way, it sets up discriminatory hiring practices. Although religious organizations are permitted to freely discrinimate among its employees, secular for-profit companies are not. By claiming that the contraceptive exemption has a religious basis, then setting up a condition where only people who agree with these practices are allowed to work for the company, employment becomes conditional on agreeing with a particular set of religious beliefs. This is clearly indefensible under the law.

Furthermore, the “just work somewhere else” seriously underestimates the difficulty that persons who work at Hobby Lobby might have in finding gainful employment elsewhere.

A thought experiment

Imagine large retail company, Acme Stores, Inc. that is run by a wealthy man, Mr. James Williams who happens to be a Jehovah’s Witness. Mr. Williams, like most Witnesses, opposes the use of blood products, including transfusions. Guided by his religious beliefs, Mr. Williams refuses to allow Acme Stores to comply with provisions of the Affordable Care Act that mandate hospitalization coverage because hospitalization might entail giving blood transfusions.

What if Acme Stores were run by a devout Christian Scientist who doesn’t believe in any health care whatsoever?

Still think Hobby Lobby’s position is tenable? If not, then it’s a reasonable bet that their motivation isn’t about protecting their free exercise of religious belief and practice, but about controlling women. The only difference between the real scenario presented by Hobby Lobby and its fictitious counterparts is that the latter harm men and women equally, whereas the former uniquely targets women.


  1. A well researched article on the subject appeared today in the New York Times.

  2. Almost certainly, knowing Justice Scalia, his opionion had much to do with the fact that the plaintiff in this case was a Native American wishing to use peyote in his religious ceremonies. Had the plaintiff been of a mainstream group, I suspect Scalia might have found differently.

  3. United States Court of Appeals for the Third Circuit, Conestoga Wood Specialties Corporation et al. v. Secretary of the United States Department of Health and Human Services, et al. Text of the ruling

Dam the stream

Once upon a time, the metaphor that best represented the organization of the internet was the “web”. A loosely organized topology of nodes and connections.

But social media - first Facebook, then Twitter - shifted the metaphor in the direction of “the stream”. As the internet grew, the topology became overwhelming and we became accustomed to the idea of information, both trivial and germane, flowing past us like a stream.

The problem with the stream is that it has no end. Humans like tidy narratives and consistent explanations. We like to stand back and admire our work. We like to sign our name on something with pride. But the stream moves on.

There is no sense of accomplishment on Twitter or Facebook. You squeezed something clever, snarky, or pithy into 140 characters? Great. Now watch the stream carry it away.

I’m reminded of Marge Piercy’s poem “To be of use”[1] in which the poet talks about the value of real work:

“The work of the world is common as mud.
Botched, it smears the hands, crumbles to dust.
But the thing worth doing well done
has a shape that satisfies, clean and evident.”

In Alexis Madrigal’s seminal article, “2013: The Year ‘the Stream’ Crested” published in The Atlantic[2], he talks about the “permanently unfinished” nature of the stream. Because the stream is perpetually unfinished it gives us all a slight anxiety about what we’re missing as the stream flows by. What if someone said something interesting?

We need more of what Madrigal calls “edges”. Edges are the boundaries of content. Edges are the final brush strokes on a painting. Or the last note in composition.

“There is a melancholy to the infinite scroll.”[3]

More and more people are getting out of the water. The stream is too fast. It’s overflowing its banks. They’ve tried to help by making little tributaries. But the rivulets just feed us over-optimized stuff. We need writing and sharing that has depth and edges.

Time to dam the stream.


  1. To Be Of Use by Marge Piercy, accessed 2014-03-21.

  2. “2013: The Year ‘the Stream’ Crested”, accessed 2014-03-21.

  3. Ibid.

The darker side of free

By now I think we all recognize that large free services on the internet exist to make your information - your buying habits, your interests, your searches, your quirks - marketable. You, in essence, are the product.

For me, the darker side of free on the web is that it takes advantage of the good will created by millions of people who offer bona fide free content without any expectation of return. Companies like Facebook have put down roots in a land tilled by people who are legitimately offering content and services and are now choking out the native dwellers.

It’s not only that these companies are quietly selling us, it’s that they’re cynically stealing the good will of free at the same time.

iPads in Schools

Our local school board has been attempting to deploy iPads to every public school student in the district for over a year. Its feasibility has been called into question more than once.

Today our local paper ran a headline article entitled “iPad program to cost $4M a year”.[1] The article details the various funding mechanisms proposed by the Board but overlooks the key question about efficacy.

The Board members, like those of other schools systems, appear to have succumbed to a form of “technological solutionism” as writer Evgeny Morozov terms it. That is, they assume, without sufficient evidence that any problem can be solved by bringing sufficient technology to bear on it. In the case of public education this may be a flawed assumption. Some of the best-performing public education systems in the world make little use of technology. It would be presumptious to conclude without evidence that our national or local systems have needs that are so unique that they can only be fulfilled with iPads in every student’s hands.

Any discussion of the affordability of technology in education must depend first on answering questions about the effectiveness of the tool in achieving some educational goal. In the case of iPads, what evidence suggests that student iPad users are more likely to achieve certain educational outcomes than their tech-less peers? Do such studies exist? What are their strengths and weaknesses? Are the outcome measures relevant? What is the effect size of the intervention?

It would surprise me if our local students were tech-deficient by any legitimate definition of the term. Free-access internet-capable computers are widely available; and in a metropolitan school district such as ours, I doubt that the so-called “digital divide” is very large.

More importantly, I’m concerned that consigning more education to glowing rectangles of any sort actually decreases educational attainment. Heavy internet and cell phone users have lower reading efficiency. They tend to skim content in a telegraphic fashion that matches the on-screen layout. It is rare to see a teenager whose attention is not riveted to a screen at least half of the time. The constant barrage of interactivity causes kids to expect that everything will interact with them. They are noticeably uncomfortable with moments in which they can’t interact with media.

I’m deeply skeptical that whatever performance issues exist in our public education systems, they can be solved by giving students iPads.


  1. Rochester Post Bulletin, March 6, 2014

Education and competition

As the parent of a kindergartner, my most important goal is to see that she fully develops her enormous potential.

Although I suspect that most positive outcomes in parenting can be attributed to a handful of factors - among them, simply being intentional - I believe that we must go even farther to equip kids for stark realities in the economy that exist now and will intensify as they eventually enter the job market.

A recent editorial in The New York Times[1], points out the causes and effects of wage stagnation in the US. Although a bachelor’s degree was historically a ticket to a relatively high-paying job, the editorial notes that: “having a B.A. is less about obtaining access to high paying managerial and technology jobs and more about beating out less-educated workers for the barista or clerical job.” While Americans stress the importance of doing what you love and loving what you do, the reality for today’s students is that competition will play a larger role in ensuring their success than ever before. You may be doing what you love; but you need to be better than the next guy.

Professor Quanyu Huang in his new book “The Hybrid Tiger” looks carefully at the factors that shape the success of Chinese-American students, a group that is almost always best positioned in the academic competition. He stresses the importance of viewing education as a competition because it heightens ambition among children. American children, it seems, are increasingly shielded from competition in an attempt to protect their self-esteem. Instead of promoting self-esteem, though, it robs them of the drive for personal betterment and it gives them a distorted view of the way the world actually works. There are, after all, only a handful of spots in the freshmen class at each of the Ivy League schools.

Although there are strident opinions, both positive and negative about the effects of competition on performance, there is evidence that the context of competition makes a significant difference. Competition often improves performance when done to win (rather than to avoid loss), when the stakes are low, and when the reason for competition is to increase the level of mastery over a discipline. It seems that the benefit (or harm) of competition is in the framing.

Dr. David Shields, Professor of Educational Psychology at St.Louis Community College, has written about the framing effects on competition. He distinguishes authentic competition from decompetition wherein the latter is the typical “contest is war” embodiment of the term. In Dr. Shields’ framework, the looks at the role of metaphors in shaping the frame in which one can begin to think about competition.

Metapor Authentic competition Decompetition
Goals Align talent with service; grow, learn, develop, create Dominance, elimination of competitors
Motivations Intrinsic: provide value, serve a larger purpose Extrinsic: obtain rewards, maximize security
View of competitors Stimulators of innovation, efficiency, service Interferences
Views of regulation Necessary "rules of the road" Largely unnecessary infringements

Table adapted from David Shields, PhD, Harvard Business Review [2]

To synthesize the ideas of both Huang and Shields, competition is important. It creates a vital striving for excellence. It sets up a gap between where one is today and where she would like to be in the future. The gap is the “potential energy” that gets converted into work toward a goal. But it’s also the parents’ responsibility to frame competition this way. We know from our understanding of current events and the economy that the job market is highly competitive; but children lack an understanding of what this means for the future. In framing competition as an opportunity to push personal limits we can create the necessary conditions for ambitious striving without exposing kids to stakes so high that defeatism is the likely response.

But for the love of all that is good in the world, don’t give kids medals just for participation. Remember: participation is an expectation.


  1. The New York Times, “Where Have All the Raises Gone”, March 3, 2014, Full text link

  2. Harvard Business Review, HBR Blog Network, “A More Productive Way to Think About Opponents”, David L. Shields, February 22, 2013. Full text link; Accessed 2014-03-03

Goodbye, iPhone

Nature's filter: the iPhone

My relationship with the iPhone is coming to an end.

I love the iPhone. Rather, I love what it was before it became indispensable. But when a piece of technology becomes indispensable, I think we need to pause for a moment to evaluate whether we can’t truly live without it or whether it has insinuated itself in our lives in ways that make it seem like we can’t live without it. In other words, has the smartphone affect us in ways that have come to make us depend on it?

Expense

Smart phones are expensive. They are expensive to acquire and even more expensive to operate. In the last month, I paid over $94 for cellular voice and data services for 47 minutes of voice and 266 MB of data. For voice, this amounts to over $1 per minutes, which is ridiculously expensive.

Instead, I could purchase a prepaid phone for $20 or less, and a basic plan for $0.10 per minute. If I talk for 47 minutes, this would cost $4.70 per month without text messages.

Distraction can feel a lot like productivity

The problem with smartphones is that they can make the user feel like he’s accomplishing something, even when the “something” in this case, is just checking the email, reading vapid tweets, or updating Facebook status. But it’s a mental trick that the iPhone has played on us. All of these things involve the same motions - staring into the screen and gesturing with the fingertips, as doing something productive; so from a purely motor basis, we feel like we actually done something.

People? What people?

A UK study from 2011 showed that 50% of smartphone owners use their devices when they are in the company of others. The same study showed that 25% of users use their devices during mealtimes. Three years after these data were published, the situation is almost certainly even less favorable.

It takes practice to communicate with another person in an open way. It takes eye contact, attention, and reflective listening - all skills that are eroded by constant interaction with smartphones.

The decision

In the end, I’ve made the decision based on many converging factors. I enjoy being able to navigate in unfamiliar places using my phone; but I could buy a map ahead of time, or gasp, actually ask for directions. And my spatial reasoning skills would probably improve as a result.

I enjoy being able to take a photograph whenever the moment arises; but it’s not really necessary.

And email? Do really need to check it that often?

Pro patria, pro pueris

Pro patria, pro pueris.[1]

As I’ve written before I’m increasingly worried about how our society in the US has come to view itself. We are full of claims about American exceptionalism but can’t rationally back them up.

The unquestioned philosophy of US exceptionalism has the unintended consequence of causing us to fail to strive. Societies perform best when striving for a collective goal. WWII. Sputnik. These were moments in US history when we engaged collective action. People took their mutual responsibilities seriously. Today, it seems, we lack a reason to strive. In a sense we are unwitting victims of our own success; and the threats to our economic and social security are subtle and slow-acting. It’s not to nuclear holocaust that we’ll succumb, but to the slowly decaying competitiveness and irrelevance. As T.S Eliot wrote: “Not with a bang, but a whimper.”

Our collective ambition is in decay. We’ve been etherized by countless distractions - social technology, pro sports, Dancing with the Stars, and stupid cat videos. Our attention has been stolen from us by the unethical purveyors of “entertainment.” Succinctly, we’re not serious about the sorts of things that will ensure our country’s success.

Kids and a window to the future

If we wish to glimpse the future we need only to contemplate our young. Are our kids driven to distraction by SMS, Facebook, Twitter, Snapchat? Then we will all soon live in a society that is so distracted that we can’t look each other in the eye.

Are our kids falling behind in our international education rankings? Then we had better resign ourselves to a second class status on the international stage.

None of this is irreversible, of course; but we need to analyze cause and effect to create a world in which we prefer to live.

###Restoring the formulas of success###

Success and hard work are inextricably linked. Contemporary media over-emphasizes serendipity in the path to financial success; but for the majority of us, the only way to get there is by hard work, orientation toward goals, and academic preparedness. We need to begin to draw the connection between striving and eventual success - however defined - in children from their earliest moments. Parents must praise kids for authentic hard work and reserve praise for what’s truly praiseworthy.

###Where there’s scarcity, competition will follow###

The worldwide economic upheavals and the political strife over healthcare, Social Security, and other social support points out the serious scarcity of opportunity. Whether our kids - and the adults they become - seek it or not, they will participate in a society that is increasingly competitive. Nothing can be gained by shielding children from this reality. Instead, we should be equipping them for competition in academics, music, sports and other pursuits.

###Inattention###

Nothing that is unattended-to develops in a positive way. Just as a closed system tends toward chaos, inattentive parenting yields disordered kids. Children need direction, gentle nudges in the right direction, discipline, consistency, and help with goal-setting. Trusting schools and recreational soccer clubs to do the long-term work of child development is misplaced. Parents must simply make development of their children their top priority. Are you reading about child psychology? Are you doing thier homework with them? Are you reading books yourself; or are you playing with your iPad? Are you looking out keenly for their strengths? Are you modeling for them the behaviors that will equip them for success?

What’s good for kids is good for our country.


  1. For (the good) of country, for (the good) of children.

Symbols and patriotism

As a progressive, I lament that fellow liberals have granted US conservatives near exclusive ownership over the symbols of patriotism. After all, why does the flag have to mean: “Insufficiently low marginal tax rates.”? Or “Health care is a privilege, not a right”? Or “We believe in limiting the rights of gay people”?

Yet these symbols have clearly been co-opted. A Harvard Kennedy School of Government Study in 2011 concluded that participation in Fourth of July events - parades, fireworks displays - all full of patriotic symbolism - increase potential voters’ identification with Repulican candidates and increases their likelihood of voting for Republican candidates. Furthermore, US Republican voters are more likely than liberals to claim their pride as a US citizen.[1]

What is “the best”?

In my experience, one of the most striking empirical differences between liberals and conservatives on the subject of patriotism, is the unwillingness of the latter to openly question the idea of American exceptionalism. Ask a conservative: “Is the US the greatest country in the world?” and the answer is almost always an emphatic affirmative. Ask a liberal; and the response is more nuanced. “Yes, but the NSA spies on our own citizens. And we’re still unlawfully detaining people at Guantánamo Bay.”

What does it mean to be “the best”?

Best at education? Hardly. On a widely applied, validated examination, US students were well below average.[2]

Best at health care? Wrong again. Our infant mortality rates are higher than in most developed countries. Even among adults, the improvement in mortality rates year-over-year shows signs of a plateau. This plateau is not evident in similar data from Sweden and Australia.[3]

But we have our freedom, right? Sure, like every country in Europe - most of whom outperform us in education and healthcare. And most of those countries don’t feel the need to spy on their own citizens.

OK, well, we’re the happiest. Wrong again. We ranked 17th in the UN World Happiness Report 2013.[4]

###The unexamined life###

Socrates said that “the unexamined life isn’t worth living” meaning that there’s no instrinsic value in living an existence without the introspection that yields personal growth and development. In the same way, unquestioned American exceptionalism does no one any good. We need to let go of our Cold War beliefs and look critically at where we find ourselves now in history. Other countries are passing us by in productivity, education, health care, happiness, and environmental sensitivity.

Preference for symbols

There is a particular disorder in the preference for the symbol over the thing that it represents. No less sad is the preference for an obsolete meaning of a symbol. If flags, fireworks, parades, and lapel pins once meant American exceptionalism, it is objectively wrong to make that association today.

Data, rationalism, and a way forward

Only awareness of objective data about our international standings and rational evaluation of their causes can drive us out of the doldrums of confused patriotic symbology. We must ask ourselves critically what it means to be the best. What strongly-held opinions are slowing our progress? What have other countries figured out that we’re missing?

Every assumption must be questioned.


  1. Gallup poll, 2013 This poll published in 2013 showed that 89% of self-identified conservatives are extremely proud to be an American citizen, in contrast to 76% of US liberals surveyed.

  2. U.S Students Slide in Global Ranking on Math, Reading, Science The Program for International Student Assessment, PISA, collects data on 65 countries and ranks countries by their students’ academic performance. In mathematics, 29 countries outperformed the US.

  3. N Engl J Med 2010; 362:98-99

  4. UN World Happiness Report, 2013 The top 5 countries in order are: Denmark, Norway, Switzerland, Netherlands, and Sweden.

Authority

Authority cannot be asserted; it must be earned.

In nearly every discipline, traditional hierarchies of authority are dissolving. Although this is supported by evidence in some cases - aviation and its crew-resource management (CRM) philosophy, for example - the leveling of authority in all cases is by no means universally beneficial.

We want students to develop critical reasoning skills by questioning received wisdom. But breaking down the gradient of authority impairs kids’ ability to receive well-vetted, widely-held knowledge. The transition from student to teacher is exemplary. One becomes an expert by working under the guidance of an expert. To prematurely flatten the hierarchy short-circuits the intellectual development of the nascent expert.

Even in the parenting relationship, authority must be earned. For some, authority is a punitive, prejudicial word when used in the context of child development. It conjures up ideas of a restricted range of expression, meanness, and even corporal punishment. But this confuses an authoritarian style with an authoritative one. In the former, parents assert authority by over-controlling, giving few options, punishing without explanation, and providing no warmth or nurturing. Parents who exhibit an authoritative style provide limits on what is acceptable and what is not while giving some latitude on how to live within those limits. The authoritative style balances nurturing and warmth with consistent limit-setting. Of course, there is a third style, common among U.S. parents, that places feeble and inconsistent limits on children while indulging their whims and desires. This laissez-faire style muddles nurturing with indulgence; and no authority is possible. Only good luck can salvage that style.

But authority cannot be taken for granted. Children need to sense that authority comes from a consistent place of wanting them to be successful, responsible, and ethical in the world. They do this by evaluating the tacit curriculum of the household. In other words, if parents model the behaviors and attributes they intend for their children to adopt, they must exhibit the same. Do you want your children to take learning seriously? Then you must show them the ways that you are constantly learning something new as an adult. Do you want your children to be able to delay gratification? Then put first things first yourself. The old adage: “Do as I say, not as I do.” sadly ignores the power of modeling.

The right of children to exert unconstrained choice is not appropriate. Instead, we should be thinking about how to help them progress from from dependent to independent in a stepwise fashion over years of development. When adults and kids do this, there is a symmetrical development of authority.

When kids live within a framework of earned authority and respect, not only do they progressively claim their own authority, but they learn and exercise the willpower that comes with deferring gratification.

On not being part of the problem

For the last several years, after leaving my medical practice, I’ve been a full-time iOS and Mac developer.

Increasingly, I feel an uneasiness about my work, especially on mobile devices. I’m proud of the professionalism and rigor that I bring to my work; but I fret about the consequences of our ubiquitous use of smartphones. In short, I feel as if I’m part of the problem.

Every time I see a parent “anesthetizing” their child with an iPhone or iPad. Every time I seem someone texting while driving. When I see teenagers glued to their phones while tuning out the real world. When I see parents surfing and not paying attention to their children.

I don’t doubt that mobile technology has helped us in many ways. But I question the net effect.