Some time in the coming months, the Supreme Court will hand down its opinion in Sebelius v. Hobby Lobby, the case of the retailer that claims that its religious freedom or that of its employees is violated by contraceptive coverage required as part of the Affordable Care Act. The attitude of the health-care act’s supporters toward such cases is irritation. How dare a little religious case trip up the mighty Affordable Care Act and jeopardize the ACA’s establishment as permanent law of the land?
Cases involving religious details, however, do have a way of stopping big social legislation, and not only because they violate the principles of the religious denominations involved. Regardless of the Court’s decision, even pro-choice Jews, Unitarians, and Muslims may eventually change their views on the ACA precisely because of Hobby Lobby and cases like it.
To see how this might happen, it helps to go back to a case involving a commensurately ambitious piece of legislation, Franklin Roosevelt’s 1933 National Industrial Recovery Act.
The National Industrial Recovery Act, like the Affordable Care Act, aimed to do nothing less than change an entire sector of the economy — in that case, the industrial and business sector. After passage in 1933, NIRA created a bureaucracy labeled, in its turn, the National Recovery Administration, or NRA. NRA was hard to contradict: Its leader was a general; its emblem, the bald eagle. “Almighty God have mercy on anyone who attempts to trifle with that bird,” General Hugh Johnson told the public. The courts seemed to agree: Nine in ten NRA cases at first were decided in favor of the government.
NRA administrators led companies in the writing of codes for their respective trades. Like the ACA’s rules, these codes were offered in agonizing and counterintuitive detail. In those days NRA codes mandated minimum wages, minimum prices, new health and safety regulations, and business practices that efficiency experts recommended whether or not firms themselves saw their logic.
Just as the ACA stumbled over its own website this past winter, the NRA stumbled over it own forms and names, which were long enough to provoke ridicule. The name of the code that governed a family of Brooklyn chicken butchers called Schechter, for example, was “The Code of Fair Competition for the Live Poultry Industry for the Metropolitan Area In and About New York.” Nonetheless, as with the Affordable Care Act today, a general wait-and-see attitude prevailed. In 1933 and 1934 conservatives, mostly jurists, might protest that the NRA was too intrusive. But the rebuttal would come: “Intrude upon what? The Depression?” At a time when two in ten were unemployed, the country thought it had nothing to lose.
One of the many firms the NRA investigated was ALA Schechter Poultry, a Brooklyn butcher shop where authorities found numerous violations of the poultry code. After the Schechters were convicted in lower courts, the authorities grew increasingly confident that Schechter would be the case in which the Supreme Court would confirm the constitutionality of their law and the New Deal. Then as now, a kind of assumption, or at least a pretense, was at work. People pretended that the fact that the Schechters were Jewish and that the butcher shop they ran was kosher were ancillary details, a kind of coincidence, or even an annoyance.
But the fact that these particular butchers observed kashruth, the Jewish body of laws involving food, was not a coincidence of this case. It was causal. This was the early 1930s, after all. These were immigrants in an industry that had already seen convictions for racketeering. One could suggest they were the Jewish equivalent of Al Capone. The immigrants’ lawyers were not likely to be a match for the government’s untouchables, the legal-powerhouse solicitor general, Donald Richberg, and his talented deputy, Walter Lyman Rice (Harvard Law). A smelly business, a poultry butcher shop would be unattractive to the public. The pro-Roosevelt journalists could make a funny story out of the pathetic little immigrants with their chickens, and they did.
The distingushed columnist Drew Pearson (Phillips Exeter, Swarthmore, American Friends Service Committee) titled his book chapter on the Schechter case “Joseph and His Brethren” and wrote mockingly of the Schechters’ attorney, Joe Heller (Brooklyn Law). “In his Brooklyn Hebrew accent he told the jury how he had known the Schechter boys since they were children,” Pearson wrote of the lawyer. The government attorney could suggest, and did, that such a company’s practices were antiquated and that poultrymen endangered public health either by ignoring Jewish law or by enforcing it imperfectly. Perhaps the Schechters were hypocrites, as it is being suggested the Hobby Lobby proprietors are. Very early on, indeed, the federal prosecutors on the Schechter case began to contend that the Jews had broken their own religious law by selling many sick chickens.
But this contempt backfired, just as contempt for Christian pro-life culture may backfire on the government in Hobby Lobby. That is because the exposure the Schechters’ case got was extensive. The public, if it cared to know, learned that the butchers worked on Sundays but not Saturdays, that they allowed the customers to pick their chickens from the coop (another NRA violation), that their butchers had special Jewish titles — they were called “shochet” or “shochtim.” All this was transcribed in the newspapers. And that exposure gave the public time to think about what they were observing.
What was evident was that two large bodies of law were clashing. On the one hand was the elaborate and new NRA poultry code. On the other hand there was the code of the Jewish dietary law, based on the Bible itself. In a contest between NIRA (48 stat. 195) and Deuteronomy (14:21), perhaps Deuteronomy had more authority. The government had its health inspectors, but who were they to go up against Maimonides himself, who had proclaimed that Jews were forbidden to serve “unwholesome” food? As it turned out, the Schechters had not sold much, if any, bad meat — there was no actionable “sick chicken” in the Sick Chicken Case.
In the Supreme Court arguments, the standard jurisprudential challenges involving the Commerce Clause and delegation were standard. Violation of those principles turned the justices against the NRA. But what had also become clear to the justices and the public was that the Schechters were simple businesspeople. By now it was 1935, and recovery had commenced; the country understood that such businesses were needed if the recovery was to continue. When the Schechters’ lawyer, that same Heller, showed how ludicrous the regulations for chicken selection were, the justices and the whole room laughed. The same kind of slapstick humor that had worked against the butchers before now worked for them. Even the justices got in on the wordplay, writing in their 9–0 finding against the NRA that the Schechter case showed that not only the poultry code but also the entire NRA corpus must collapse, “bone and sinew.”
The best explanation for the shift in opinion is that such conflicts give the public a chance to consider what it is the government is intruding into or impinging on — not just a vacuum, but the private sphere, the personal sphere, the business sphere, and, yes, the sphere of faith. The spectacle of that intrusion is not easily forgotten once perceived. The chicken of daily business life and ritual can, from time to time, vanquish the eagle.
— Amity Shlaes chairs the board of the Calvin Coolidge Presidential Foundation.