Summing Up Hobby Lobby

by Dave Schuler on July 13, 2014

Law prof Brett McDonnell sums up the Hobby Lobby decision:

Burwell vs. Hobby Lobby answered two questions, and each answer channels core liberal principles.

The first question was: Can for-profit corporations invoke religious liberty rights under RFRA? The court answered yes. HBO’s John Oliver nicely expressed the automatic liberal riposte, parodying the idea that corporations are people. It is very funny stuff.

It is not, however, especially thoughtful stuff. The court does not argue that corporations are just like real people. Rather, it argues that people often exercise faith collectively, in organizations. Allowing those organizations to assert religious-liberty rights protects the liberty of the persons acting within them. The obvious example is churches, usually legally organized as nonprofit corporations.

The real issue is not whether corporations of any type can ever claim protection under RFRA — sometimes they can. The issue is whether for-profit corporations can ever have enough of a religious purpose to claim that protection.

To me, as a professor of corporate law, liberal denial of this point sounds very odd. In my world, activists and liberal professors (like me) are constantly asserting that corporations can and should care about more than just shareholder profit. We sing the praises of corporate social responsibility.

Well, Hobby Lobby is a socially responsible corporation, judged by the deep religious beliefs of its owners. The court decisively rejects the notion that the sole purpose of a for-profit corporation is to make money for its shareholders. This fits perfectly with the expansive view of corporate purpose that liberal proponents of social responsibility usually advocate — except, apparently, when talking about this case.

The court’s conclusion that RFRA can protect corporations forced it to face a second question: Does the contraceptive mandate violate religious liberty rights in a way that the government cannot justify? The court said it does.

Here is what is for me the critical point:

Is RFRA a conservative power grab giving religious lawbreakers a “get out of jail free” card?

History suggests otherwise. RFRA reversed Justice Antonin Scalia’s 1990 opinion that denied protection to Native Americans who used peyote in religious ceremonies. The dissenters in that case were Justices Harry Blackmun, William Brennan and Thurgood Marshall — three of the leading liberals in the court’s history. Those liberals lost in court, but Congress vindicated them three years later by passing RFRA.

Democrats controlled both the Senate and the House at the time, and RFRA passed by a 97-3 vote in the Senate and unanimously in the House. That is not a typo.

That means most of those who voted for RFRA and the president who signed it into law were lawyers. The Dictionary Act has defined the word “person” when used in federal law as applying to corpotations since 1947. It is simply not credible that among all those lawyers none of them were aware of that.

In other words, the decision was simply a matter of black letter law and re-affirmed profoundly liberal principles.

Peter Berkowitz summarizes the majority position:

First, treating corporations as persons with rights involves a familiar form of legal reasoning whose purpose is to vindicate the rights of the persons who own and control corporations.

Second, there is no sound legal reason to deny to for-profit corporations the sort of exemption HHS had already implemented for nonprofit organizations.

Third, the exemption that the court upheld in Hobby Lobby was limited to “closely held” or family-run, for-profit corporations. The precedent is unlikely to be invoked by large publicly traded corporations because of the diversity of religious and nonreligious views of their owners.

Fourth, the majority opinion assumed that the government did have a compelling interest in providing cost-free access to contraception, including the four methods in dispute in Hobby Lobby.

Fifth, the court concluded that the federal government must honor the Hahns’ and Greens’ sincerely held religious beliefs because it had alternative means to accomplish its goal of ensuring women’s cost-free access to contraceptives. HHS, as the court pointed out, had already worked out an effective accommodation with nonprofit religious organizations.

How then to explain the agonistic reaction to the decision? In the Trib Heidi Stevens suggested that the decision’s opponents are outraged at a loss of power and power is a zero-sum game. You cannot maintain a republic on the basis that for you to win the other side must lose. The best you can hope to accomplish is a temporary, narrow majoritarianism.

Mr. Berkowitz proposes something else:

Still more pronounced, however, is the evident aversion among prominent progressives to living in a society with those who disagree with them about religion and reproduction. So great is their distaste for the diversity of views characteristic of a liberal democracy and so strong is their resolve to control the conduct of others that they are willing to mischaracterize the other side’s opinions, warp the facts, and politicize the law.

I think there’s an even more likely possibility: today’s progressives are not liberals.

{ 14 comments… read them below or add one }

michael reynolds July 13, 2014 at 12:31 pm

No, opponents are upset because this kind of tribalism, this picking apart of society for the benefit of this or that self-proclaimed religion or group is destructive to our civilization. It’s the former Yugoslavia solution to everything, the “take my ball and go home,” approach.

This tribalist mentality — which obviously has a home of the left as well, though at least the left champions tribalism for the disadvantaged, not for the overclass — undergirds a large percentage of the world’s problems. Importing more tribalism into the US is not progress. Catering still more to superstition, and in the case of Hobby Lobby, outright ignorance of the medical realities, is not progress.

The original religious freedom act was stupid law written by gutless, pandering politicians solving a problem that did not exist. Citizens United was stupid law. Hobby Law is the stupid child of those stupid precedents. Having broken ground with RFRA we are now digging the hole deeper, doing nothing for religious freedom while ensuring a future that is less united, less cooperative, more sectarian, more tribal.

steve July 13, 2014 at 1:05 pm

IANAL. TG.

It is upsetting because elf the following. First, if it is precedent setting, it may cause problems. It was probably wrong on the science. If religion can trump science on questions of fact, where does that take us? Second, corporations are people, but they seem to be pretty darn special people. It looks like they have all of the rights of regular, real people, plus they have special protections. Is that really what we want? Beyond that, special protections incurred by being a corporation mostly seem to apply to owners and management, i.e. the wealthier part of the corporation. What special protections do workers obtain by being in a corporation? Last of all, there is a loss of liberty for those who are now not able to, or only with difficulty, obtain contraceptives. Benefits are part of the employee pay package. Why do we let employers in this case determine how employees use their compensation? Why do their religious beliefs trump those of other people?

Steve

TastyBits July 13, 2014 at 1:18 pm


I think there’s an even more likely possibility: today’s progressives are not liberals.

Progressives want to use the machinery of the government to enact their vision of how things should be. They are for liberty as long as people use their liberty to make the correct choice. They are for diverse opinion as long as the opinion is the correct one.

When the choices are incorrect, they are willing to use the government to achieve their outcome. They assume that the machinery they are assembling will always be used for the purposes they have designed. This is rarely the case.

Nonetheless, some people think they are the smartest people in the whole wide world, and their continuous failures do nothing to change their opinion of themselves.

TastyBits July 13, 2014 at 1:37 pm

@steve

… If religion can trump science on questions of fact, where does that take us? …

Of course, there was nothing about science in the case, but why miss an opportunity to conflate several issues?

… Last of all, there is a loss of liberty for those who are now not able to, or only with difficulty, obtain contraceptives. Benefits are part of the employee pay package. Why do we let employers in this case determine how employees use their compensation? …

Contraceptives = liberty. Wow. What about toothbrushes, toothpaste, and floss? Are good dental hygiene not important? Why do we let employers in this case determine how employees use their compensation?

This has nothing to do with healthcare. As you noted, it has to do with behavior – “how employees use their compensation”. You are concerned that employees may not purchase contraceptives and subsequently use contraceptives.

steve July 13, 2014 at 2:01 pm

“Lamontagne quoted favorably from the court’s 5-4 majority opinion, written by Justice Samuel Alito: “The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients. If the owners comply with the [Obama administration’s contraception] mandate, they believe they will be facilitating abortions…”

The problem here is that their religious belief is not a scientific truth. Just because the Greens believe that emergency contraception and intrauterine devices induce abortion does not make it so.

In fact, medical experts say quite the opposite.

The American College of Obstetricians and Gynecologists filed a friend-of-the-court brief supporting the contraceptive mandate. On its website, here is how ACOG replies to a question about whether emergency contraception like Plan B and Ella, the “morning-after” pills to which Hobby Lobby so strenuously objects, can cause an abortion:

“Emergency contraception will not disrupt an established pregnancy. Women often are exposed to exogenous hormones in early pregnancy without adverse outcome. Some women undergoing assisted reproductive technology procedures to achieve pregnancy are routinely prescribed progesterone to support the pregnancy. It is also a common occurrence to interview patients in early pregnancy who were not aware that their missed pills had resulted in contraceptive failure and who thus had continued taking their pills.”

As for whether IUDs cause abortion, here is the opening paragraph of a 1989 Population Council publication, IUDs are Contraceptives, not Abortifacients, by Irving Sivin, a senior associate in the council’s Center for Biomedical Research:

“Prevalent social myth holds that IUDs are abortifacients. Even U.S. Supreme Court Justice John Paul Stevens, in dissent from the majority opinion in Webster v Reproductive Health Services, subscribed to this belief. Scientists, including developers of IUDs, have believed it. The key element underlying this myth is that IUDs act only at the uterine level, either to prevent implantation or to destroy developing embryos in the uterus before implantation. Today, however, the weight of scientific evidence indicates that IUDs act as contraceptives. They prevent fertilization, diminishing the number of sperm that reach the oviduct and incapacitating them.”

steve July 13, 2014 at 2:02 pm

“What about toothbrushes, toothpaste, and floss? ”

What about them? If the Church of the Flying Spaghetti Monster determines they can harm pasta, do we let employers forbid employees from using their money to buy them?

Steve

Modulo Myself July 13, 2014 at 2:24 pm

Fifth, the court concluded that the federal government must honor the Hahns’ and Greens’ sincerely held religious beliefs because it had alternative means to accomplish its goal of ensuring women’s cost-free access to contraceptives. HHS, as the court pointed out, had already worked out an effective accommodation with nonprofit religious organization.

Which is also being challenged. Do rightwing morons even expect the sentient to read their crap? Or is just for those who get twitches at the thought of paying for birth control or letting a gay guy work with them?

Dave Schuler July 13, 2014 at 2:36 pm

The problem here is that their religious belief is not a scientific truth.

The Court was not being called on to adjudicate the validity of their beliefs nor should it have been. It was called on to determine whether they held those beliefs, whether the law applied to them, and whether there was a less restrictive alternative.

TastyBits July 13, 2014 at 2:41 pm

@steve

Since I do not have the time to dig through a ton of medical literature, I will concede the “morning-after” pills and IUD argument. I highly suspect that the morning-after pill is not quite as simple as it is being portrayed, but unless I do extensive research, you can expect no links or quotes.

What about them? If the Church of the Flying Spaghetti Monster determines they can harm pasta, do we let employers forbid employees from using their money to buy them?

Employees are free to use their money to purchase any legal good they can afford. They can purchase a Big Gulp instead of toothpaste. If they choose to purchase something other than contraceptives, that is usually defined as liberty.

Why was dental hygiene not included as a requirement of Obamacare? Most of the items on the contraceptive list have nothing to do with healthcare. Condoms can help to prevent spread STD’s, but what do the others do?

Cstanley July 13, 2014 at 3:06 pm

The science question rests completely on the definition of pregnancy. Medically speaking a pregnancy hasn’t begun until implantation, which makes sense from a physician’s perspective. To pretend that this also creates a moral distinction for those who place value on human life from conception onward though, is pure sophistry.

Religious people aren’t denying the science of when or how or where the embryo is killed by these drugs and devices. It doesn’t matter, from an ethical perspective, whether embryonic death occurs before or after implantation, in the uterus or en route through the Fallopian tube.

Aside from that, religious beliefs are protected even if they are unscientific. One prominent example is the Catholic belief in tea substantiation. Catholics are not forced to defend this belief on scientific grounds before having the right to participate freely in the Mass.

Cstanley July 13, 2014 at 3:11 pm

If the Church of the Flying Spaghetti Monster determines they can harm pasta, do we let employers forbid employees from using their money to buy them?

The relevant question is whether or not the employer should be required to purchase them for their employees, not whether or not he should be able to block the employees’ purchase.

steve July 13, 2014 at 6:38 pm

“The relevant question is whether or not the employer should be required to purchase them for their employees”

It costs the same whether they have contraceptives available or not. The employer pays the same amount, so why do they get to determine what the employee does with that care?

” It was called on to determine whether they held those beliefs”

Exactly, which makes this much different than beliefs in substantiation. That is a purely religious matter about which facts are irrelevant AND unknowable. In the case of contraceptives, the science is knowable. So again, are we happy that a religious group can arbitrarily choose treatments, not based upon facts or science, and decide it is against their faith? Then, in essence, make employees pay for their religious beliefs? I don’t think this is nearly as clear cut as some might have us believe. It was a close decision and it deserved to be a close decision.

I hope people have been reading David Post’s (CATO) articles at Volokh on this.

Steve

CStanley July 13, 2014 at 7:07 pm

” the science is knowable.”

Steve, yes, the science is knowable. These particular drugs and devices prevent implantation. The argument against them being abortifacients is based on a technicality in that the embryo is killed before implantation so that the medical definition of pregnancy has not yet been met.

Do you dispute any of that?

CStanley July 13, 2014 at 7:42 pm

It costs the same whether they have contraceptives available or not. The employer pays the same amount, so why do they get to determine what the employee does with that care?

Cost is not the issue. A lethal dose of a euthanasia solution might cost the same as a dose of a life saving medication but the effects (and involvement of one’s conscience) are obviously not the same if compelled to administer each.

If nothing else though, perhaps we can agree that this is exactly why employers shouldn’t be involved in provision of healthcare benefits. It was always a stupid system (and led to some of the problems like portability, that ACA is meant to solve.) but now with more mandates, it becomes clear that having the employer as an intermediary is a problem for reproductive healthcare. Before we could agree to disagree but now, not so much.

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