For a brief time dur­ing the 1980s, I was Direc­tor of Pol­i­cy Devel­op­ment for the Social Secu­ri­ty Admin­is­tra­tion.  The title is more glo­ri­fied than the real­i­ty.  Social Secu­ri­ty is a big and ossi­fied pro­gram that resists “pol­i­cy devel­op­ment.”  Con­gress, ever cog­nizant of the polit­i­cal risks of tam­per­ing with the pro­gram, had been forced by its loom­ing insol­ven­cy to pass a mas­sive law hik­ing pay­roll tax­es and rais­ing the retire­ment age just a few years before.  They were in no mood to enter­tain addi­tion­al legislation.

But my job was to pre­pare options for the Commissioner’s con­sid­er­a­tion, so I met with career staff who had an idea: why not advo­cate for a bill requir­ing self-employed Amish farm­ers to pay social secu­ri­ty taxes?

The Amish object to par­tic­i­pat­ing in Social Secu­ri­ty on reli­gious grounds.  They believe that insur­ance, includ­ing gov­ern­ment insur­ance, man­i­fests a lack of faith in God’s pro­vi­sion.  They also believe that it is their oblig­a­tion to pro­vide for their own com­mu­ni­ty with­out out­side assis­tance.  And their strong­ly held views on the sep­a­ra­tion of church and state ren­der them unwill­ing to accept gov­ern­ment payments.

Staff at the Social Secu­ri­ty Admin­is­tra­tion want­ed Con­gress to repeal the reli­gious exemp­tion for self-employed Amish that was includ­ed in the law that cre­at­ed Medicare (sec­tion 319© of PL 89–97).  They not­ed that the Supreme Court had held in 1982  that Amish employ­ers, notwith­stand­ing their reli­gious objec­tions, could be required to con­tribute to Social Secu­ri­ty on behalf of their work­ers.  Staff argued that the gov­ern­ment should go fur­ther and levy the pay­roll tax on self-employed Amish as well.

The argu­ment struck me as odd.  The Amish had pur­sued their pecu­liar lifestyle for cen­turies. Accom­mo­dat­ing their reli­gious sen­si­bil­i­ties rep­re­sent­ed no threat either to the program’s sol­ven­cy or to its uni­ver­sal­i­ty.  Com­pelling them to vio­late their reli­gious tenets would­n’t improve the pro­gram.  So why do it?

I asked a sim­ple ques­tion: “How many of you are cov­ered by social security?”

As fed­er­al work­ers, the tens of thou­sands of peo­ple who admin­is­tered social secu­ri­ty did not them­selves par­tic­i­pate in social secu­ri­ty.  Like the Amish, they did­n’t they want to, though not for rea­sons of con­science.  They mere­ly pre­ferred the far more gen­er­ous civ­il ser­vice retire­ment system.

The 1983 social secu­ri­ty law required peo­ple who joined the fed­er­al work­force begin­ning in Jan­u­ary 1984 to pay social secu­ri­ty tax­es.  As a recent­ly-hired polit­i­cal appointee, I was the only one in the room who paid FICA tax­es.  The peo­ple who were exempt from social secu­ri­ty seemed a bit embar­rassed to have been called out for their objec­tion to exempt­ing the Amish from social secu­ri­ty.  Their rec­om­men­da­tion died a qui­et death.

I thought of that long-ago meet­ing this week when read­ing over two con­tro­ver­sial rul­ings hand­ed down on Mon­day by the Supreme Court.  The first was a law­suit brought by Pamela Har­ris, a woman who receives Med­ic­aid reim­burse­ment for pro­vid­ing care to her dis­abled adult son in her home.

The con­tro­ver­sy began when a union orga­niz­er appeared at Ms. Har­ris’ door to ask her to vote in favor of hav­ing the SEIU rep­re­sent all home health care workers.

“I object to my home being a union work­place,” she lat­er told NPR.  Oth­er home health work­ers shared her objec­tion.  A major­i­ty vot­ed against union rep­re­sen­ta­tion.  When the SEIU called for a new elec­tion, Har­ris and oth­ers filed suit.

In find­ing in favor of Har­ris, the Court looked at the leg­is­la­tion that clas­si­fied peo­ple like Har­ris as state employ­ees – well, sort of.  The law stip­u­lates that they are pub­lic employ­ees “sole­ly for the pur­pose of cov­er­age under the Illi­nois Labor Rela­tions Act” [Har­ris v. Quinn, p. 6] The statute specif­i­cal­ly denies them all fringe ben­e­fits received by state employ­ees, includ­ing health and life insur­ance.  Nor is their pay sub­ject to col­lec­tive bar­gain­ing.  It is set by law.  The only sense in which Har­ris was a state employ­ee was that she was required to pay dues to the union rep­re­sent­ing state employees.

That point is but­tressed by the Med­ic­aid pro­gram under which Har­ris receives reim­burse­ment for the care she pro­vides her son.  In Illi­nois, peo­ple with dis­abil­i­ties choose their care­givers, known as “per­son­al assis­tants.”  That choice can include fam­i­ly mem­bers as well as home health work­ers.  The law pro­vides that the “cus­tomer” (the dis­abled per­son) “shall be the employ­er of the per­son­al assis­tant.”   [p. 2]  Such care­givers are thus, by law, employ­ees of the per­son for whom they care, not of the state.

The state’s only role is to pay care­givers out of its Med­ic­aid funds.  But that no more makes them state employ­ees than Med­ic­aid pay­ments to pri­vate physi­cians, phar­ma­cies, hos­pi­tals or clin­i­cal lab­o­ra­to­ries trans­form them into gov­ern­ment work­ers or pub­lic institutions.

Since she was not a state employ­ee, the major­i­ty ruled, Har­ris could use the $1300 month­ly Med­ic­aid pay­ment to help care for her son, rather than shar­ing it with the SEIU.

In the sec­ond case, the Court ruled that close­ly-held cor­po­ra­tions with reli­gious objec­tions would not be penal­ized for fail­ing to cov­er cer­tain forms of con­tra­cep­tion in their employ­er-spon­sored health plans.  Hob­by Lob­by and oth­er plain­tiffs had refused to cov­er 4 of the 20 FDA-approved birth con­trol drugs and devices because those 4 block the implan­ta­tion of an embryo, rather than pre­vent­ing fertilization.

The case is so emo­tion­al­ly fraught that I will avoid com­ment­ing on the out­come.  But con­sid­er this: Hob­by Lob­by and the oth­er plain­tiffs could have escaped gov­ern­ment penal­ty had they mere­ly stopped pro­vid­ing health cov­er­age to their work­ers.  The Admin­is­tra­tion announced last year that it would not impose a tax penal­ty on employ­ers who failed to spon­sor cov­er­age for their work­ers this year, ignor­ing an explic­it pro­vi­sion of the law (sec­tion 1513).  The plain­tiffs chose nev­er­the­less to con­tin­ue cov­er­ing their employ­ees out of the same reli­gious moti­va­tion that ren­ders them unwill­ing to cov­er cer­tain contraceptives.

The finan­cial effect of not cov­er­ing every con­tra­cep­tive prod­uct is stag­ger­ing.  Hob­by Lob­by faced an annu­al penal­ty of $475 mil­lion dol­lars [p. 32].  Had they dropped cov­er­age of all 20 meth­ods of birth con­trol and every oth­er med­ical good and ser­vice, the gov­ern­ment would have imposed no fine at all.

The Administration’s deci­sion to delay the employ­er man­date, accord­ing to CBO, meant that one mil­lion few­er peo­ple have employ­ment-based cov­er­age this year, a result that con­flicts with the law’s express pur­pose.  Half of those were expect­ed to buy sub­si­dized cov­er­age on the exchanges; the oth­er half to join the ranks of the unin­sured.  Giv­ing cor­po­ra­tions a pass result­ed in half a mil­lion more unin­sured peo­ple and an addi­tion­al cost to the gov­ern­ment of $12 billion.

The Admin­is­tra­tion was per­fect­ly will­ing to bring about these adverse results by declin­ing to enforce a pro­vi­sion of law.  But when it came to accom­mo­dat­ing the reli­gious beliefs of hand­ful of employ­ers, they became rigid and inflex­i­ble.  They could have devised ways to assure that employ­ees of Hob­by Lob­by got free birth con­trol with­out tram­pling under the con­sci­en­tious con­cerns of the com­pa­ny’s own­ers, as the Court point­ed out sev­er­al times in its rul­ing.  Such accom­mo­da­tions, unlike its waiv­er of the employ­er man­date, would nei­ther have vio­lat­ed the law nor frus­trat­ed its aims.  They chose con­fronta­tion instead.

What is it that inspires gov­ern­ment work­ers exempt from social secu­ri­ty to com­pel the Amish to par­tic­i­pate in social secu­ri­ty, state employ­ee unions to col­lect dues from care­givers who are not state employ­ees, and fed­er­al agen­cies to pun­ish com­pa­nies that don’t cov­er cer­tain meth­ods of con­tra­cep­tion while waiv­ing penal­ties against cor­po­ra­tions that don’t pro­vide insur­ance to their workers?

The Amish, house­wives car­ing for dis­abled chil­dren, and peo­ple who scru­ple over the dif­fer­ence between fer­til­iza­tion and implan­ta­tion have this in com­mon: they are out­side the main­stream.  In an ear­li­er age, this might have enti­tled them to some mea­sure of tol­er­ance.  Gov­ern­ment might have left them alone.

But tol­er­ance as it is now under­stood increas­ing­ly demands con­for­mi­ty.  William Voegeli, in an insight­ful essay in the Clare­mont Review of Books, observed:

Mod­ern tol­er­ance does not aspire to the reci­procity clas­si­cal tol­er­ance sought, under which the spir­it of live-and-let-live was to oper­ate in all direc­tions with equal force, rather than just for the ben­e­fit of some and to the detri­ment of others.

This new under­stand­ing of tol­er­ance enlists the force of gov­ern­ment to bring peo­ple with dis­sent­ing views into line with the gov­ern­men­tal caprice of the moment – whether it is the uni­ver­sal­i­ty of social secu­ri­ty, the pro­vi­sion of “free” birth con­trol, or the union­iza­tion of health care work­ers.  To be tru­ly tol­er­ant, it is now believed, gov­ern­ment must take actions that dis­fa­vor those whose per­son­al or reli­gious beliefs it choos­es not to tolerate.

The Court’s two rul­ings this week, how­ev­er one may regard them, in some ways rep­re­sent a return to an ear­li­er under­stand­ing of tol­er­ance.  Which is one rea­son they are so intol­er­a­ble to those who think them­selves tolerant.