![\"Pamela](\"https:\/\/i0.wp.com\/www.dougsbriefcase.com\/blog\/wp-content\/uploads\/2014\/07\/Credit-Heartland-Institute.jpg\")
<\/a>Pamela Har\u00adris, shown here with her dis\u00adabled son, pre\u00advailed at the Supreme Court this week in her chal\u00adlenge to an Illi\u00adnois law requir\u00ading her to pay union dues. [Cred\u00adit: Heart\u00adland Institute]<\/p><\/div>For a brief time dur\u00ading the 1980s, I was Direc\u00adtor of Pol\u00adi\u00adcy Devel\u00adop\u00adment for the Social Secu\u00adri\u00adty Admin\u00adis\u00adtra\u00adtion. The title is more glo\u00adri\u00adfied than the real\u00adi\u00adty. Social Secu\u00adri\u00adty is a big and ossi\u00adfied pro\u00adgram that resists \u201cpol\u00adi\u00adcy devel\u00adop\u00adment.\u201d Con\u00adgress, ever cog\u00adnizant of the polit\u00adi\u00adcal risks of tam\u00adper\u00ading with the pro\u00adgram, had been forced by its loom\u00ading insol\u00adven\u00adcy to pass a mas\u00adsive law hik\u00ading pay\u00adroll tax\u00ades and rais\u00ading the retire\u00adment age just a few years before. They were in no mood to enter\u00adtain addi\u00adtion\u00adal legislation.\n
But my job was to pre\u00adpare options for the Commissioner\u2019s con\u00adsid\u00ader\u00ada\u00adtion, so I met with career staff who had an idea: why not advo\u00adcate for a bill requir\u00ading self-employed Amish farm\u00aders to pay social secu\u00adri\u00adty taxes?<\/p>\n
The Amish object to par\u00adtic\u00adi\u00adpat\u00ading in Social Secu\u00adri\u00adty on reli\u00adgious grounds<\/a>. They believe that insur\u00adance, includ\u00ading gov\u00adern\u00adment insur\u00adance, man\u00adi\u00adfests a lack of faith in God\u2019s pro\u00advi\u00adsion. They also believe that it is their oblig\u00ada\u00adtion to pro\u00advide for their own com\u00admu\u00adni\u00adty with\u00adout out\u00adside assis\u00adtance. And their strong\u00adly held views on the sep\u00ada\u00adra\u00adtion of church and state ren\u00adder them unwill\u00ading to accept gov\u00adern\u00adment payments.<\/p>\n Staff at the Social Secu\u00adri\u00adty Admin\u00adis\u00adtra\u00adtion want\u00aded Con\u00adgress to repeal the reli\u00adgious exemp\u00adtion for self-employed Amish that was includ\u00aded in the law that cre\u00adat\u00aded Medicare (sec\u00adtion 319\u00a9 of PL<\/span> 89\u201397). They not\u00aded that the Supreme Court<\/a> had held in 1982 that Amish employ\u00aders, notwith\u00adstand\u00ading their reli\u00adgious objec\u00adtions, could be required to con\u00adtribute to Social Secu\u00adri\u00adty on behalf of their work\u00aders. Staff argued that the gov\u00adern\u00adment should go fur\u00adther and levy the pay\u00adroll tax on self-employed Amish as well.<\/p>\n The argu\u00adment struck me as odd. The Amish had pur\u00adsued their pecu\u00adliar lifestyle for cen\u00adturies. Accom\u00admo\u00addat\u00ading their reli\u00adgious sen\u00adsi\u00adbil\u00adi\u00adties rep\u00adre\u00adsent\u00aded no threat either to the program\u2019s sol\u00adven\u00adcy or to its uni\u00adver\u00adsal\u00adi\u00adty. Com\u00adpelling them to vio\u00adlate their reli\u00adgious tenets would\u00adn\u2019t improve the pro\u00adgram. So why do it?<\/p>\n I asked a sim\u00adple ques\u00adtion: \u201cHow many of you are cov\u00adered by social security?\u201d<\/p>\n As fed\u00ader\u00adal work\u00aders, the tens of thou\u00adsands of peo\u00adple who admin\u00adis\u00adtered social secu\u00adri\u00adty did not them\u00adselves par\u00adtic\u00adi\u00adpate in social secu\u00adri\u00adty. Like the Amish, they did\u00adn\u2019t they want to, though not for rea\u00adsons of con\u00adscience. They mere\u00adly pre\u00adferred the far more gen\u00ader\u00adous civ\u00adil ser\u00advice retire\u00adment system.<\/p>\n The 1983 social secu\u00adri\u00adty law required peo\u00adple who joined the fed\u00ader\u00adal work\u00adforce begin\u00adning in Jan\u00adu\u00adary 1984<\/a> to pay social secu\u00adri\u00adty tax\u00ades. As a recent\u00adly-hired polit\u00adi\u00adcal appointee, I was the only one in the room who paid FICA<\/span> tax\u00ades. The peo\u00adple who were exempt from social secu\u00adri\u00adty seemed a bit embar\u00adrassed to have been called out for their objec\u00adtion to exempt\u00ading the Amish from social secu\u00adri\u00adty. Their rec\u00adom\u00admen\u00adda\u00adtion died a qui\u00adet death.<\/p>\n I thought of that long-ago meet\u00ading this week when read\u00ading over two con\u00adtro\u00adver\u00adsial rul\u00adings hand\u00aded down on Mon\u00adday by the Supreme Court. The first<\/a> was a law\u00adsuit brought by Pamela Har\u00adris, a woman who receives Med\u00adic\u00adaid reim\u00adburse\u00adment for pro\u00advid\u00ading care to her dis\u00adabled adult son in her home.<\/p>\n The con\u00adtro\u00adver\u00adsy began when a union orga\u00adniz\u00ader appeared at Ms. Har\u00adris\u2019 door<\/a> to ask her to vote in favor of hav\u00ading the SEIU<\/span> rep\u00adre\u00adsent all home health care workers.<\/p>\n \u201c<\/span>I object to my home being a union work\u00adplace,\u201d she lat\u00ader told NPR<\/span><\/a>. Oth\u00ader home health work\u00aders shared her objec\u00adtion. A major\u00adi\u00adty vot\u00aded against union rep\u00adre\u00adsen\u00adta\u00adtion. When the SEIU<\/span> called for a new elec\u00adtion, Har\u00adris and oth\u00aders filed suit.<\/p>\n In find\u00ading in favor of Har\u00adris, the Court looked at the leg\u00adis\u00adla\u00adtion that clas\u00adsi\u00adfied peo\u00adple like Har\u00adris as state employ\u00adees \u2013 well, sort of. The law stip\u00adu\u00adlates that they are pub\u00adlic employ\u00adees \u201csole\u00adly for the pur\u00adpose of cov\u00ader\u00adage under the Illi\u00adnois Labor Rela\u00adtions Act\u201d [Har\u00adris v. Quinn, p. 6] The statute specif\u00adi\u00adcal\u00adly denies them all fringe ben\u00ade\u00adfits received by state employ\u00adees, includ\u00ading health and life insur\u00adance. Nor is their pay sub\u00adject to col\u00adlec\u00adtive bar\u00adgain\u00ading. It is set by law. The only sense in which Har\u00adris was a state employ\u00adee was that she was required to pay dues to the union rep\u00adre\u00adsent\u00ading state employees.<\/p>\n That point is but\u00adtressed by the Med\u00adic\u00adaid pro\u00adgram under which Har\u00adris receives reim\u00adburse\u00adment for the care she pro\u00advides her son. In Illi\u00adnois, peo\u00adple with dis\u00adabil\u00adi\u00adties choose their care\u00adgivers, known as \u201cper\u00adson\u00adal assis\u00adtants.\u201d That choice can include fam\u00adi\u00adly mem\u00adbers as well as home health work\u00aders. The law pro\u00advides that the \u201ccus\u00adtomer\u201d (the dis\u00adabled per\u00adson) \u201cshall be the employ\u00ader of the per\u00adson\u00adal assis\u00adtant.\u201d [p. 2] Such care\u00adgivers are thus, by law, employ\u00adees of the per\u00adson for whom they care, not of the state.<\/p>\n The state\u2019s only role is to pay care\u00adgivers out of its Med\u00adic\u00adaid funds. But that no more makes them state employ\u00adees than Med\u00adic\u00adaid pay\u00adments to pri\u00advate physi\u00adcians, phar\u00adma\u00adcies, hos\u00adpi\u00adtals or clin\u00adi\u00adcal lab\u00ado\u00adra\u00adto\u00adries trans\u00adform them into gov\u00adern\u00adment work\u00aders or pub\u00adlic institutions.<\/p>\n Since she was not a state employ\u00adee, the major\u00adi\u00adty ruled, Har\u00adris could use the $1300 month\u00adly Med\u00adic\u00adaid pay\u00adment to help care for her son, rather than shar\u00ading it with the SEIU<\/span>.<\/p>\n In the sec\u00adond<\/a> case, the Court ruled that close\u00adly-held cor\u00adpo\u00adra\u00adtions with reli\u00adgious objec\u00adtions would not be penal\u00adized for fail\u00ading to cov\u00ader cer\u00adtain forms of con\u00adtra\u00adcep\u00adtion in their employ\u00ader-spon\u00adsored health plans. Hob\u00adby Lob\u00adby and oth\u00ader plain\u00adtiffs had refused to cov\u00ader 4 of the 20 FDA<\/span>-approved birth con\u00adtrol drugs and devices because those 4 block the implan\u00adta\u00adtion of an embryo, rather than pre\u00advent\u00ading fertilization.<\/p>\n The case is so emo\u00adtion\u00adal\u00adly fraught that I will avoid com\u00adment\u00ading on the out\u00adcome. But con\u00adsid\u00ader this: Hob\u00adby Lob\u00adby and the oth\u00ader plain\u00adtiffs could have escaped gov\u00adern\u00adment penal\u00adty had they mere\u00adly stopped pro\u00advid\u00ading health cov\u00ader\u00adage to their work\u00aders. The Admin\u00adis\u00adtra\u00adtion announced<\/a> last year that it would not impose a tax penal\u00adty on employ\u00aders who failed to spon\u00adsor cov\u00ader\u00adage for their work\u00aders this year, ignor\u00ading an explic\u00adit pro\u00advi\u00adsion of the law (sec\u00adtion 1513<\/a>). The plain\u00adtiffs chose nev\u00ader\u00adthe\u00adless to con\u00adtin\u00adue cov\u00ader\u00ading their employ\u00adees out of the same reli\u00adgious moti\u00adva\u00adtion that ren\u00adders them unwill\u00ading to cov\u00ader cer\u00adtain contraceptives.<\/p>\n The finan\u00adcial effect of not cov\u00ader\u00ading every con\u00adtra\u00adcep\u00adtive prod\u00aduct is stag\u00adger\u00ading. Hob\u00adby Lob\u00adby faced an annu\u00adal penal\u00adty of $475 mil\u00adlion dol\u00adlars [p. 32]. Had they dropped cov\u00ader\u00adage of all 20 meth\u00adods of birth con\u00adtrol and every oth\u00ader med\u00adical good and ser\u00advice, the gov\u00adern\u00adment would have imposed no fine at all.<\/p>\n The Administration\u2019s deci\u00adsion to delay the employ\u00ader man\u00addate, accord\u00ading to CBO<\/span><\/a>,<\/span> meant that one mil\u00adlion few\u00ader peo\u00adple have employ\u00adment-based cov\u00ader\u00adage this year, a result that con\u00adflicts with the law\u2019s express pur\u00adpose. Half of those were expect\u00aded to buy sub\u00adsi\u00addized cov\u00ader\u00adage on the exchanges; the oth\u00ader half to join the ranks of the unin\u00adsured. Giv\u00ading cor\u00adpo\u00adra\u00adtions a pass result\u00aded in half a mil\u00adlion more unin\u00adsured peo\u00adple and an addi\u00adtion\u00adal cost to the gov\u00adern\u00adment of $12 billion.<\/p>\n The Admin\u00adis\u00adtra\u00adtion was per\u00adfect\u00adly will\u00ading to bring about these adverse results by declin\u00ading to enforce a pro\u00advi\u00adsion of law. But when it came to accom\u00admo\u00addat\u00ading the reli\u00adgious beliefs of hand\u00adful of employ\u00aders, they became rigid and inflex\u00adi\u00adble. They could have devised ways to assure that employ\u00adees of Hob\u00adby Lob\u00adby got free birth con\u00adtrol with\u00adout tram\u00adpling under the con\u00adsci\u00aden\u00adtious con\u00adcerns of the com\u00adpa\u00adny\u2019s own\u00aders, as the Court point\u00aded out sev\u00ader\u00adal times in its rul\u00ading. Such accom\u00admo\u00adda\u00adtions, unlike its waiv\u00ader of the employ\u00ader man\u00addate, would nei\u00adther have vio\u00adlat\u00aded the law nor frus\u00adtrat\u00aded its aims. They chose con\u00adfronta\u00adtion instead.<\/p>\n What is it that inspires gov\u00adern\u00adment work\u00aders exempt from social secu\u00adri\u00adty to com\u00adpel the Amish to par\u00adtic\u00adi\u00adpate in social secu\u00adri\u00adty, state employ\u00adee unions to col\u00adlect dues from care\u00adgivers who are not state employ\u00adees, and fed\u00ader\u00adal agen\u00adcies to pun\u00adish com\u00adpa\u00adnies that don\u2019t cov\u00ader cer\u00adtain meth\u00adods of con\u00adtra\u00adcep\u00adtion while waiv\u00ading penal\u00adties against cor\u00adpo\u00adra\u00adtions that don\u2019t pro\u00advide insur\u00adance to their workers?<\/p>\n The Amish, house\u00adwives car\u00ading for dis\u00adabled chil\u00addren, and peo\u00adple who scru\u00adple over the dif\u00adfer\u00adence between fer\u00adtil\u00adiza\u00adtion and implan\u00adta\u00adtion have this in com\u00admon: they are out\u00adside the main\u00adstream. In an ear\u00adli\u00ader age, this might have enti\u00adtled them to some mea\u00adsure of tol\u00ader\u00adance. Gov\u00adern\u00adment might have left them alone.<\/p>\n But tol\u00ader\u00adance as it is now under\u00adstood increas\u00ading\u00adly demands con\u00adfor\u00admi\u00adty. William Voegeli<\/a>,<\/span> in an insight\u00adful essay in the Clare\u00admont Review of Books, observed:<\/p>\n Mod\u00adern tol\u00ader\u00adance does not aspire to the reci\u00adprocity clas\u00adsi\u00adcal tol\u00ader\u00adance sought, under which the spir\u00adit of live-and-let-live was to oper\u00adate in all direc\u00adtions with equal force, rather than just for the ben\u00ade\u00adfit of some and to the detri\u00adment of others.<\/p><\/blockquote>\n This new under\u00adstand\u00ading of tol\u00ader\u00adance enlists the force of gov\u00adern\u00adment to bring peo\u00adple with dis\u00adsent\u00ading views into line with the gov\u00adern\u00admen\u00adtal caprice of the moment \u2013 whether it is the uni\u00adver\u00adsal\u00adi\u00adty of social secu\u00adri\u00adty, the pro\u00advi\u00adsion of \u201cfree\u201d birth con\u00adtrol, or the union\u00adiza\u00adtion of health care work\u00aders. To be tru\u00adly tol\u00ader\u00adant, it is now believed, gov\u00adern\u00adment must take actions that dis\u00adfa\u00advor those whose per\u00adson\u00adal or reli\u00adgious beliefs it choos\u00ades not to tolerate.<\/p>\n The Court\u2019s two rul\u00adings this week, how\u00adev\u00ader one may regard them, in some ways rep\u00adre\u00adsent a return to an ear\u00adli\u00ader under\u00adstand\u00ading of tol\u00ader\u00adance. Which is one rea\u00adson they are so intol\u00ader\u00ada\u00adble to those who think them\u00adselves tolerant.<\/p>\n","protected":false},"excerpt":{"rendered":" For a brief time dur\u00ading the 1980s, I was Direc\u00adtor of Pol\u00adi\u00adcy Devel\u00adop\u00adment for the Social Secu\u00adri\u00adty Admin\u00adis\u00adtra\u00adtion. The title is more glo\u00adri\u00adfied than the real\u00adi\u00adty. Social Secu\u00adri\u00adty is a big and ossi\u00adfied pro\u00adgram that resists \u201cpol\u00adi\u00adcy devel\u00adop\u00adment.\u201d Con\u00adgress, ever \u2026 Con\u00adtin\u00adue read\u00ading