By Jason Hines –
Yesterday the Supreme Court decided to hear two cases regarding the contraception mandate in the Affordable Care Act. The interesting aspect of these cases is that the companies involved (Hobby Lobby being the more famous of the two) are for profit companies whose owners are committed Christians who believe that certain forms of contraception covered by the mandate are against their religious beliefs and that they should not be paying to provide them for their customers.
I think now is as good a time as any to point out the hypocrisy in the fact that Hobby Lobby was providing for the contraceptives they now are against and that their only problem really seems to be that the government is now obligating them to do what they were already doing.
Unfortunately the only reason why a case like this is now plausible is because the Supreme Court has opened the door to this type of challenge with their decision in Citizens United. One of the first things that you learn in corporations law is the legal fiction that corporations are “people.” One of the main reasons why people create corporations is so that they as the owners/shareholders can be isolated from the corporation itself. But if corporations are people or individuals, then it begs the question of whether they have the same rights as the rest of real individuals. What Citizens United did was expand the notion of free speech rights for corporations. So the argument goes – If corporations can have First Amendment free speech rights, why can’t they have First Amendment free exercise of religion rights as well?
But it seems to me that the analogies don’t really line up. The good folks at Hobby Lobby (and any other for-profit corporation) can make at least a plausible argument that they need free speech rights. After all, things may occur in America where a corporation would need a voice in the political realm. Support for one candidate or another could have a significant effect on the ability of a corporation to conduct its business. But exactly what religious rights could a corporation have that would be akin to what Hobby Lobby is asking for? After all, I as a citizen do not have the free exercise right to burden other people’s healthcare. I’m not sure it makes sense to give that right to corporations just because they have employees. Furthermore, while critics of this position would say that employees could just find another job, is this really the type of stratification we want as a society? Does this not amount to a de facto religiously discriminatory hiring practice? I think it comes dangerously close to being exactly that. Now if Hobby Lobby as a corporation wants to have free exercise rights, I’m actually all for that. If the Hobby Lobby Corporation doesn’t want to use contraception when it has sex, that is well within their rights. What their employees do, however, is none of their business.
The other aspect of this case that makes it a close case is the presence of the Religious Freedom Restoration Act, which governs activity by the federal government. When the federal government enacts a law, it must make sure that it does not substantially burden the free exercise right of any individual. If the Hobby Lobby Corporation is an individual for the purpose of free exercise rights, then this law would apply to them. We should note though, that the standard in this case is whether there is a substantial burden. It is a fallacy to argue that any religious burden is unjustified. I am willing to concede that Hobby Lobby and there shareholders’ religious freedom is being burdened. I just don’t think that the burden is enough to justify a religious exemption. As Americans United has argued in other cases, one of the main issues here is that the effect on the religious practice of the shareholders is so attenuated. It is primarily attenuated by the fact that the shareholders are protected by the legal fiction of Hobby Lobby as an “individual.” Second, I think Hobby Lobby is confused as to what they are actually funding. Hobby Lobby is not funding birth control. What they are doing is giving their employees an insurance plan as part of the compensation package for the service their employees provide to the corporation. Those plans include an option for the employee to use birth control. It is then up to the employee to decide whether they will use birth control or not. This seems very similar to me to Hobby Lobby attempting to argue that they will deduct the cost of birth control from their employees’ salary so that employees can’t buy birth control with the salary they are given. The health insurance does not belong to Hobby Lobby, it belongs to the employees.
In a recent interview, Harvard Law professor Mark Tushnet surmised that the Supreme Court’s holding in this case, if it rules in Hobby Lobby’s favor would be extremely narrow and would not include the avalanche of potential claims for-profit employers could then make. As much as I despise slippery slope arguments and would like to agree with him. I think Professor Tushnet is wrong here. If Hobby Lobby can remove contraception from employees’ health care, why can’t Jehovah’s Witnesses remove blood transfusions? Why can’t Hobby Lobby remove HIV/AIDS treatment for single/LGBT employees? There are a lot more examples like this and I refer you to this primer from the Center for American Progress. The examples they give are reasonable. I like to think of the unreasonable examples that could be based on race or age. The Court could certainly just say that this only applies to the contraception mandate in future cases, but I don’t know what the legal principle would be that the Court would use to distinguish between those future cases and the case we have now.
I want to return to the idea of the attenuated nature of Hobby Lobby’s free exercise claim because I think it also shed some light on why I think they’re wrong not only legally, but biblically. I’m not here to argue with them about whether the Bible outlaws the use of contraception or “abortifacients.” (I put abortifacients in quotes because I don’t think what they are calling abortifacients actually are such.) We can agree to disagree on that point. However, Hobby Lobby seriously misunderstands what exactly they’re doing here. Once again, they are not providing contraception. They are providing an option to have contraception, which the employee will then decide to either use or not use. At best they are providing an option to commit sin, not actually committing the sin themselves, or even co-signing on the decisions their employees will make. I seem to recall someone else who provides an option to sin without condoning it. That’s right – Jesus does! He provided all of with life, even though he knew we were all born in sin and shaped in iniquity (Ps. 51:5) He provides me with the means financially to survive although I will often use that money on things He does not want me to have, and in ways that He would not approve. How great it is to have a loving God who gives me the freedom to make my own decisions and gives me the tools to make the right ones instead of a God who tries to coerce me into His righteousness by burdening my decisions any way He can. Now if we can just get His followers to do the same�.
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Jason Hines, an attorney, is completing his PhD in church-state studies at Baylor University.
“I think now is as good a time as any to point out the hypocrisy in the fact that Hobby Lobby was providing for the contraceptives they now are against and that their only problem really seems to be that the government is now obligating them to do what they were already doing.”
Fascists never see themselves as fascist.
Your perspective – as well as your understanding – is incorrect about the central issues involved in the Hobby Lobby challenge.
First, in this country we have explicit protections against an individual being forced to engage in action that violates their moral conscience, which mention their religious beliefs. The only caveat to this up to now has been when – by following those beliefs – they will be harming another individual or preventing them from exercising their own right to not violate conscience. This has been an established approach for many years ( a good secular example would be conscientious objectors who refused be a part of the Vietnam war and most faced no penalty for it).
While government has established that the state can prevent a particular religious behavior or action ( like when the Mormon church was prohibited from the practice of polygamy by the courts), that is not at all the same as forcing citizens – at threat of criminal prosecution – to violate their religious beliefs simply because the state has elected to take an opposite position on the matter. The essence of our freedoms are the rights which guarantee that the state cannot dictate what the individual should believe.
Hobby Lobby is privately owned and held by Christians. This private ownership is key. The central and overriding issue in the Hobby Lobby case is about the free practice of conscience and free exercise of that conscience in any matter an individual wishes as long as that exercise does not harm any one else as mentioned above.
Forcing private individuals to violate their conscience by paying for something that their conscience believes is morally wrong is – manifestly – a violation of the First Amendment clause that forbids government from making any law prohibiting the FREE practice of their religion. You may feel that Hobby Lobby’s position on birth control is wrong, but that does not give you or the state the right, under our Constitution, to force them to violate their religious beliefs.
You are also incorrect in relation to your Biblical defense of the action to force Hobby Lobby into adopting the state’s view on contraception. In fact, you are almost exactly 180 degrees out. The Bible teaches that obedience to those who God has placed over us is proper, but it is also clear that this requirement is subservient to obedience to God.
No matter what your personal views, Hobby Lobby is fighting to obey God in the manner that they believe is proper. If the state is allowed to force them to subvert their religious conscience – over such a small matter, and where there is no other compelling interest than forcing conformity – to the demands of the state that refuses to honor that conscience, we all lose in the end.
M. Andrew, in light of your opinion regarding Christian individual responsibility, Deuteronomy 14:21 outlines rather explicitly the attitude we should take when dealing with issues that may violate our consciences but harmless to us, but regarded as common practice by others.
Pretty stupid screed, Jason.
Hobby Lobby is not on record as being opposed to birth control in a general sense.
They are opposed to abortificants specifically. I am not sure whether you spewed this vomitous piece out without doing a shred of research, or just because you like the wit to understand the difference in preventing fertilization as opposed to causing the destruction of a growing embryo.
No matter.
Your writing is ill conceived and poorly executed.
You are like the grade school kid who writes a book report based entirely on the cover illustration.
First … it is not their customers they will be providing this for it is their employees.
Second … i beleive in freedom of choice, if you take my money and force me to pay for abortions that i disagree with then what has happened to MY FREEDOM OF CHOICE?
M. Andrew,
Thanks for your comment. It seems that a lot of what you object to is either explicitly or implicitly addressed in my post. I’ll try to take your points in order. My responses will follow yours by paragraph –
– While you are right in general, you are wrong in specific. For example, try to tell the government that you have a religious objection to paying your taxes and see whether you can get a religious exemption. The government does have the ability in certain circumstances to force its citizens to violate their conscience. As I said in the post, the question isn’t whether this is a violation, I agree that it is (after all, I can’t decide for you whether it is a violation or not). The question is whether it is a permissible violation under constitutional law.
– We would disagree with whether this is a small matter or whether there is a compelling interest, but as I stated before, the government is already asking people to violate their conscience in subservience to the state.
Thanks for you comment.
Jason Hines
– You have stated it one way by saying that can prevent a particular religious behavior or action? Isn’t that what they are doing? They are preventing the action of using your religious objection to burden the choice of others in terms of healthcare plans. I understand that you are just stating it another way, but those are two sides of the same coin.
– Two points in response to this paragraph. The private ownership here to me is not key. I was planning to mention this in the original post but didn’t because I didn’t think anyone would make this argument. Hobby Lobby is an “individual” separate from its shareholders. That is why it is set up as a corporation. The shareholders did this because it was to their advantage to do so economically. I’m not sure that the shareholders can say, “we want to be separate from our company when it comes to economic issues, but we want to be considered one and the same with our corporation when it comes to the violation of our religious conscience.” That’s why the 3rd circuit decision (which didn’t involve Hobby Lobby) was based on the idea that the shareholders were not the ones giving contraception, the corporation was. Shareholders as a matter of law are not the corporation. Second, lets not act there isn’t a potential harm to employees here. There will be some employees who will have to choose between their employment and their freedom of conscience in terms of healthcare because they will not be able to afford this necessary medication without it being included in their health plan.
– See my argument in the post about what Hobby Lobby is “paying for.”
– I don’t disagree with anything in this paragraph. In fact my argument to other Christians is that support for this type of healthcare does not violate the Christian ethos and therefore creates no conflict with obedience to God. I know they would disagree with me on this, but my point in the spiritual analysis is to give people something to think about in terms of whether they’re right about their biblical analysis of this issue.
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Mr. Woody,
A couple of points –
First, you don’t know me, and we’re not friends. So that should be, “Pretty stupid screed, Mr. Hines.”
I’m not going to apologize for your inability to understand what is admittedly a rather complex argument. I don’t think it’s helpful to be as simplistic as you’re being about what is a complicated issue that will involve a drastic expansion of free exercise rights.
By the way, I did implicitly address the difference that you discuss between contraception and abortifacients. Actually I did it three times. I’ll see if you can find it. Also, when those words turn blue like that, it is evidence of a link to an outside piece. I thought I would mention this just to alleviate your concerns about whether I had done any research.
Like I said, this is an incredibly complex issue that involves religion, law, politics, and theology in very unique ways. If you have any legitimate concerns, I’d be happy to answer them for you.
Thanks for your comment,
Jason Hines
It’s bad medicine and bad law to suggest that contraception is health care and insist it be covered at all. It is intended to interfere with the normal functioning of the body. What will be covered next? Patches to cover your eyes so you can’t see? Gags so you can’t speak? Hobbles so you can’t walk? Wires to shut your mouth so you can’t eat? Dams in your bloodstream to keep your blood from flowing? An implant to ensure that nutrients won’t be absorbed? Health care should have the purpose of restoring you to health; to make sure your body is working correctly. Anything else that modifies the body or interferes with its functioning is elective, and should come out of your own pocket.
So does that mean no liberal company could object to a mandate to provide health insurance that has an “option” to euthanize unwanted black children up to age 12?
Your argument couldn’t be more specious. It’s like saying it should be legal to give Al Queda a nuclear bomb because it’s only their “option” if they want to detonate it. Or even that it should be legal to donate money to Al Queda, since it’s up to them if they want to spend it on health care or terrorism.
It is NOT ethical to give people weapons, tools or money that could be used to commit unethical behavior, if you have a way of avoiding it. Hobby Lobby is trying to do the right thing by exercising all their avenues for avoiding being unethical.
Thank you, Mr. Hines, for a piece that seems, from my perspective, quite tightly reasoned. I’d very much like to see an equally well reasoned piece from the other side, rather than comparisons of abortifacients to nuclear bombs…or similar wild overstatements.
An interesting set of questions was posited by Senior Circuit Judge Randolph in a similar case in the D.C. Circuit recently:
“If a corporate free-exercise right is recognized, in any form, there are equally challenging secondary questions. How should the beliefs of a religious corporation be determined? Can publicly traded corporations be religious? If so, do they take on the religions of their shareholders as a matter of course? If a religious corporation is sold, does it retain its religious identity? These questions, challenging in themselves, would confront us in different permutations across the diverse entity forms and organizational structures of the American business landscape.” – Judge Randolph, Gilardi v. U.S. Dept. of Health and Human Services, Concurring Opinion
Re: M. Andrew, “privately owned” and “private individual” are not synonymous. A privately owned corporation is one that’s stock is not offered on the open market, but is still sold or traded privately. This can be done among any number of people for any number of reasons, religious, family, or otherwise. Your position seems to be that because all shareholders of Hobby Lobby have a common belief, therefore Hobby Lobby as a corporation holds that belief. This raises the valid questions asked by Judge Randolph above regarding cases where the shareholders of the corporation in question do *not* have a consensus of belief.
If Hobby Lobby is owned by 75% Catholics and 25% Muslims, which religion is Hobby Lobby then considered to adhere to and freely exercise? If Hobby Lobby has shareholders among every religion, does Hobby Lobby then hold to every religion simultaneously, and gain protection from any Federal law that might impose on any of them under the RFRA?
Ultimately, Hobby Lobby does not qualify as a religious corporation or employer under either the Affordable Care Act exemptions or the Title VII of the Civil Rights Act of 1964. The corporation is not non-profit and does not engage primarily in, nor hire primarily members of, a particular religious belief.
Now, had the owners of Hobby Lobby elected not to incorporate, this would be a much more interesting case – and perhaps that case, theoretical though it may be, is the one we are really discussing here? From the tone of the arguments, I think that might well be the case. If we remove the buffer of the corporation and address this as a matter of a private employer, I would be interested to see where that ruling would fall.
I lost a liberty of conscience case based on technicalities of law, particularly with regard to the controversial applications of the RFRA (see, GC of SDA v. McGill, et al). If we are not sensitive to sacred conscience, we may do the same with Hobby Lobby.
Hobby Lobby appears to be owned and operated by professed “Christians.” Under Hobby Lobby FAQs, in answer to “Why are you closed on Sundays?” — they answer, “We have chosen to close on the day most widely recognized as a day of rest, in order to allow our employees and customers more time for worship and family. This has not been an easy decision for Hobby Lobby because we realize that this decision may cost us financially. Yet we also realize that there are things more important than profits. This is a matter of principle for our company owner and officers.”
The Rutherford Institute is urging the U.S. Supreme Court to recognize that corporations have a right to religious expression, in addition to the already established right to political expression recognized by the Court in its 2010 ruling in Citizens United. (see, https://www.rutherford.org/publications_resources/on_the_front_lines/warning_against_double_standard_in_recognizing_rights_for_corporations_ruth)