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.