By JACK KENNY
There was a lot of talk about “the little guy” during the confirmation hearings on the nomination of Judge Neil Gorsuch to the U.S. Supreme Court. Foremost among the objections raised by the Democratic members of the Senate Judiciary Committee was the charge that Gorsuch, as a member of the Tenth Circuit Court of Appeals, nearly always came down on the side of the “the big guy” — usually some powerful corporation — against “the little guy” litigating against said corporation.
The judge obviously anticipated that charge and was able to cite a long list of cases in which he had come down on the side of “the little guy” — in favor of people suing against corporate polluters in his home state of Colorado, for litigants against a similar polluter in Utah, for a woman suing the Albuquerque Police Department, in favor of a woman suing Colorado University over sexual assault and harassment by members of the football team, among others.
Gorsuch and some of his Republican supporters further argued that a judge’s job is to base his decision on the law and the facts of the case, not on which litigant is bigger or smaller.
What was revealing, however, is how some on the committee chose to assign the roles of “big guy” and “little guy.” Judge Gorsuch, for example, ruled in favor of Hobby Lobby, a multibillion-dollar, family-owned corporation with tens of thousands of employees, that refuses, on moral and religious grounds, to include certain kinds of contraceptive coverage in the health insurance it provides its employees.
By refusing to bow to the government mandate, Hobby Lobby became the “big guy” suppressing the right of its “little guy” and “little gal” employees to receive the kind of health-care coverage the government deems appropriate.
But if Hobby Lobby is to be viewed as Goliath in this scenario, the federal government is a rather implausible David. The $1.3 million a day the government was prepared to fine the company for defying the mandate was a rather heavy slingshot, capable of putting the company completely out of business in a very short time.
The same is true of the Little Sisters of the Poor, a Roman Catholic order that serves the elderly poor in more than 30 countries. The Little Sisters may “opt out” of paying for contraceptive coverage for their employees by filling out a form for the federal Department of Health and Human Services. HHS would then require the insurer to provide the contested coverage free of charge.
The Little Sisters contend that cooperation would still have them cooperating in the providing of services that violate their religious convictions and the teachings of their Church. As with Hobby Lobby, the sisters have challenged the mandate under the Religious Freedom Restoration Act, passed by Congress in the 1990s and signed by President Bill Clinton.
But it appears to violate as well the very first freedom in the Bill of Rights — the religious freedom guaranteed by the First Amendment:
“Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof . . . .”
If a religious organization is not allowed to operate its charitable mission according to its religious principles and beliefs, how is that not a violation of the “free exercise” of religion?
To liberals or “progressives,” the federal government is never the domineering “big guy.” The government is always the kind, benevolent authority that provides for us. It provides, for example, millions of dollars in funding each year for Planned Parenthood, officially for services other than abortions. But money is a fungible commodity and dollars that come in to support one part of the organization’s activities free up dollars for other parts of its mission.
Yet nothing rallies the left like the call to arms that may be heard whenever there is an effort to “defund Planned Parenthood.” The bullies on Capitol Hill are picking on the heroic providers of “reproductive services” again. You would think the organization had some sort of prior claim on federal funding, whether or not the Congress chooses to provide it.
Never mind all the “little guys” and “little gals” who object to paying for the programs the organization carries out, including the Planned Parenthood vision of sex education disseminated through our public schools.
Forget also the “little guys” who object to having their tax dollars sent to an organization that, whatever else it does, is the nation’s largest provider of abortions.
Or consider the Supreme Court’s Citizens United decision that has raised such a furor over the alleged evils of “money in politics.”
Almost forgotten is the fact that the suit was brought against a provision of the McCain-Feingold law that prohibited a group of citizens from spending money to broadcast ads that mentioned a candidate by name 30 days before a primary or 60 days before a general election — in other words, when people are paying attention to an election campaign.
The group called Citizens United was told by the Federal Communications Commission it would be in violation of the law if it bought ads promoting its documentary concerning Hillary Clinton within 30 days of the 2008 New Hampshire presidential primary, in which Sen. Clinton was a candidate.
The group sued and eventually had its free speech rights affirmed by the Supreme Court. A group of citizens prevailed against the government of the mightiest nation on Earth.
Score one for the “little guy” and “Say not the struggle naught availeth.”
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