The president may have a point, asking if Western civilization possesses the will to survive. But Hobby Lobby reportedly has the will to loot the artifacts appertaining thereto and pass them off as “tile samples.” So much maskirovka, as the Russians might put it. This could be a two-Tum day.
And neither do the 7-Select TM Sour Neon Gummi Worms. Don’t ask me how I know this, please, I am not confessing diddly squat today, as it were.
So Cardinal Dolan went on Face the Nation Sunday and said that if you want contraceptives, “my Lord, all you have to do is walk into a 7-11 or any shop on any street in America and have access to them.” I can only imagine how many little Cardinal Dolan juniors are walking down those streets of America today, not having the foggiest idea that they may owe their existence to the good Cardinal’s ignorance about the actual product selection at 7-11, not to mention the unseemly reality of off-label usage of juju candy and M&M’s.
For the record, Cardinal (hat tip to Mother Jones), 7-11 does not carry any Plan B One Step, the one emergency contraceptive available without prescription. And for regular birth control products, you need a prescription, you cannot just walk into 7-11 or your corner store. Unless you’re doing something sub rosa–but you are a Cardinal, so that would be out of the question. And the Hobby Lobby people that you were imagining you were defending–their employee health care plan already does include several kinds of birth control, just not the morning-after pill.
How many specious hypotheticals, willful misprisions of existing law and recent Court decisions, and frightening parades of horribles can fit inside of 90 minutes of oral argument at the Supreme Court? A great multiplicity, as we found out last Tuesday, March 25, when the Court heard arguments in the consolidated Hobby Lobby and Conestoga Wood cases.
According to the editorial writers at The Wall Street Journal, “the real purpose of the [so-called contraceptive] mandate was to minister to the secular left and the so-called coalition of the ascendant.” For the WSJ, “liberal justices rolled out a parade of dubious hypotheticals, arguing that if a business can invoke religion to refuse to pay for abortifacients, couldn’t it also refuse to pay for blood transfusions or vaccinations? ‘Could an employer preclude the use of those items as well?’ asked Justice Sonia Sotomayor….Yet no one is ‘precluding anything. Contraception is cheap, plentiful and covered by most health plans.” Taking the WSJ editorial board’s assertions (“Obamacare vs. Religious Liberty,” 3/25/14) in turn: they begin by assuming bad faith on the part of the lawmakers and regulators, resorting to slander rather than actual argument; second, the contraceptives involved are not regarded as abortifacients either by federal law or authoritative medical judgment; third, there is no limiting principle in their reasoning–or the reasoning of Paul Clement, the lawyer who argued on behalf of Hobby Lobby and Conestoga Wood–against extending the rights of natural persons to artificial entities for whom life begins at incorporation but “who” enjoy limited liability, not personal accountability before G-d; fourth, there is a significant upfront cost, as Solicitor General Donald Verrilli pointed out in response to an ill-informed question by Justice Scalia, for the IUD, which millions of American women use and which, as Verrilli noted, may be sincerely regarded as causing abortions by the corporate owners–notwithstanding, their sincerity should not control the legal outcome of the case if their beliefs contradict medical opinion.
Justice Kennedy, as often happens, looks like the swing vote here. He showed concern that the government’s logic could in principle lead to forcing for-profit corporations to pay for abortions–though as Verrilli pointed out, that hypothetical worry is not consistent with any current laws, which force no such thing. However, Kennedy did also express concern that the rights of employees–the women who rely on birth control coverage as part of their health care plan–could be threatened by a ruling in favor of the corporations. (The Balkinization blog has several detailed posts on this issue.)
Regarding Justice Alito’s hypothetical (based on a recent law in Denmark) suggesting that the government’s position could lead to kosher and halal slaughterhouses having no legal recourse to defend their free exercise and First Amendment rights, I can only say that although I abhor the false flag attacks on women’s autonomy perpetrated by Justices Alito et al., I will defend to the death their right not to be “stunned or rendered unconscious” before they make their way into the Supreme Court chambers to make their preposterous and tendentious assertions.
The three female justices raised questions that highlighted the real burdens women employees (and there are thousands of women employed by these companies, which though closely held are by no means mom-and-pop operations) would face if the Court were to rule against the government and for Hobby Lobby/Conestoga Wood. It’s likely up to Anthony Kennedy to decide whether such corporate burden-shifting should be allowed in the face of what seems to me a neutral and generally applicable law designed to promote public health. And whether the purportedly religious arguments for heteronomous control over women should prevail. The Affordable Care Act may offend some religous consciences but is two or three degrees of separation away, in my opinion, from imposing an unbearable burden on any limited liability for-profit corporation, no matter the personal, sincere beliefs of its owners.
P.S. Spoiler alert: the decision, which will be released in late June, shall, I regret to say–and in spite of Justice Alito’s wariness of philosophical entanglements–uphold the unity of corporate mind and body, and thus vindicate Spinoza’s dictum (hat tip, or apologies if you will, to Michael Della Rocca, Spinoza, ch. 3) that the “order and connection of ideas is the same as the order and connection of things.” The Court will rule that corporate entities (unlike mere natural persons) have the inalienable right to represent, via thoughts and/or ideas, any particular object they so choose.
Rick Warren, pastor and best-selling author of The Purpose-Driven Life, recently published a Washington Post op-ed supporting the Hobby Lobby company’s claim that they should not have to comply with provisions of the Affordable Care Act requiring that employee health plans include contraceptive coverage. Warren testifies to the wonderfulness of David and Barbara Green, and I do not doubt his testimony. I do doubt that he knows what he is talking about when he asserts that “Hobby Lobby is not a secular, publicly-traded company. Rather, it is the personal, purpose-driven mission of one of the most devout families I’ve ever met.” Warren is correct that Hobby Lobby is not publicly traded, but it is most definitely a secular company in that Hobby Lobby, like all corporations, is brought into being, chartered that is, by Caesar, with the state-granted privilege of limited liability. If the Greens want to do business as individuals, with full accountability to both God and their fellow human beings, no one is forcing them to incorporate, let alone distance themselves further with a trustee ownership structure, which they did. But if David and Barbara Green, or the Hobby Lobby corporation they founded, wants the privileges of incorporation–especially limited liability–they are on shaky ground complaining about the burdens on their personal consciences caused by generally applicable public laws. Obamacare does not force them to use birth control, let alone abortion-inducing drugs, themselves. No one is forcing their employees to use birth control. The law does not compel them to provide any health care plan whatsoever, though it may fine them for that, so as to spread the social costs of irresponsible corporate behavior.
Warren asks, “do Americans have the freedom to place our beliefs and ethics at the center of our business practices–or must we ignore them when we form a company?” Seductive rhetoric, but Warren’s dramatic either/or is at odds with the reality of corporation law. “We” do not form a company all by ourselves, “we” and our state (and, at least implicitly, federal) government have to come to terms before incorporation occurs. So we have considerable latitude, or freedom, to act according to our beliefs and ethics, but that latitude may be limited by laws. If the laws transgress against our consciences, we have the option of dissolving the corporate structure and going back to the land, or wherever “we” came from.
Warren claims that the Greens “live their religious values and ethics in every aspect of their business…by their commitment to helping employees maintain a healthy work-life balance, which includes closing on Sundays so workers have more time with their families.” I wonder if the workers have not just the “positive liberty” (see Isaiah Berlin’s classic essay “Two Types of Liberty”) to fulfill their truest selves by spending Sundays with their families, but also the “negative liberty” Americans prize so much. If Hobby Lobby’s workers have the “leave me alone” negative liberty we Americans love, might they spend their Sundays with boyfriends and mistresses, ignoring their families completely, even employing birth control, and in general amusing themselves to death? Whose freedom and what vision of freedom is at stake in this case?
Opinions differ, to put it mildly, on the meaning of religious liberty today. A book on Hinduism by Wendy Doniger of the University of Chicago has been pulped or is being pulped right now by Penguin India following a lawsuit against the publisher by a conservative Hindu nationalist, on grounds of “offending religious feelings of Hindus,” according to stories in the Guardian. In Kansas, it seems some Republicans in the Kansas Senate are backing away from support for a so-called “protecting religious freedom regarding marriage” bill just passed by the Kansas House (which a Slate blogger rightly called an abomination reminiscent of the Jim Crow era). Politicians from President Obama to Bobby Jindal to your local legislator are busy presenting their versions of what religious liberty means. Everyone says they want to uphold religious liberty.
Is there a formula to help navigate the competing claims of Hobby Lobby, the Freedom From Religion Foundation, and all the rest? The First Amendment is our canonical American text on freedom, and it may seem to some too broad and vague. But Douglas Laycock of the University of Virginia has presented decisive evidence that what the Founders intended is not consistent with the right-wing claims that “the government can openly support religion so long as it doesn’t prefer one religion over others.” The legislative record, Laycock notes, “tells a very different tale. A lawyer drafting the right-wing view might write: ‘Congress shall make no law establishing any particular denomination of religion in preference to another.’ In fact that is exactly how it was written in 1789 by members of the first Senate. But the Senate rejected that version and two similar versions that explicitly stated the right-wing view….A conference committee produced the version ultimately ratified as the First Amendment: ‘Congress shall make no law respecting an establishment of religion.’ This is the broadest version considered by either house [in 1789]. It speaks generically of ‘religion,’ not ‘a religion,’ ‘a national religion,’ or ‘any particular denomination of religion.’ It forbids any law…that relates to an establishment in any way. In light of the alternatives Congress considered and rejected, it is best understood as requiring the government to be entirely neutral towards religion….Here, the intent of the framers is as clear as it ever gets; the right wing distorts that intent to suit its own preferences.”
Those not happy with Laycock’s exposition of the original meaning of the First Amendment (written for a USA Today column in 1985 but fresh as a daisy, and reprinted in Religious Liberty: Overviews and History, 2010, pp. 529-30) might say very well, but times have changed and we are now faced with a horrifying war on religious freedom as well as moral values. I might wonder “so what’s new,” but let me say instead that invidious (if not hateful) discrimination against whole classes of people is not the way to defend religious freedom, and is increasingly indefensible–as the Kansas Senate, for example, is apparently grasping, and as judges and legislators in Kentucky, Virginia, and Indiana have decided this week as the case against same-sex marriage collapses.
Should I give an appearance of evenhandedness and acknowledge that President Obama has a major blind spot regarding religious liberty, as columnist Kathleen Parker of the Washington Post claimed recently? The President may have blind spots, but Parker does not seem to be familiar enough with the facts on the ground re the Little Sisters of the Poor case to do anything other than throw rhetorical bricks at the President. No one is going to compel the Little Sisters to provide abortifacients, or even birth control, to their employees. The somewhat more challenging issues come in the Hobby Lobby and Conestoga Wood cases, where the latest government brief (Feb. 10, as respondent to Conestoga) has crystallized a hard-to-impeach version of the questions presented: “1. Whether the Religious Freedom Restoration Act of 1993…allows a for-profit corporation to deny its employees the health coverage of contraceptives to which the employees are otherwise entitled by federal law, based on the religious objections of the corporation’s owners. 2. Whether the requirement that non-exempted, non-grandfathered group health plans include coverage of contraceptives violates the Free Exercise Clause of the First Amendment.”
The government brief has it just right. The real issue here, and in so many other putative “religious liberty” cases and controversies, is whose freedom counts, and who bears the burden when some complain that their consciences are violated by a generally applicable public law. I would say it is clear that a for-profit corporation is an inanimate creature brought into being by state charter, and has no tender conscience to offend. A religiously-based nonprofit is quite different, and accommodations should often be made so long as the Little Sisters, the Vedanta Society, the Presbyterian Youth group, the synagogue, or similar groups attest to their conscientious objections–which may indeed involve writing some kind of “permission slip,” if you want to put it that way. Such cases can be tricky; however the Hobby Lobby, Conestoga Wood, and for that matter Town of Greece v. Galloway cases ought to be disposed of easily.
Does the Supreme Court relish sorting all this out? They do face some vexing, difficult cases, but if five or more justices can tune out the faux-outrage ginned up by the political right over supposed violations of religious liberty, and focus on upholding “neutral laws of general applicability” with the usual exceptions and accommodations where warranted, their yoke will be easy and their burden quite light.
It seems so long ago that Mitt Romney was ridiculed for claiming that “corporations are people, my friend.” Now not only are corporations people, they are claiming to possess the perseverance of the saints. The Hobby Lobby and Conestoga Wood cases, in which for-profit corporations are asserting First Amendment free exercise of religion protection, seem beyond absurd to me, but here we are with the Supreme Court taking them seriously enough to schedule oral arguments for Tuesday, March 25.
According to the Conestoga Wood company’s legal brief, the “question presented” is whether “the religious owners of a family business, or their closely-held business corporation, have free exercise rights that are violated” by the contraceptive mandate of the Affordable Care Act. Well, if you put it that way, who would be so rude to the good country people of Conestoga Wood as to lay a burden on their religious beliefs? But I would say that is a misleading view of the question presented. As God-fearing people, to take them at their word, the individuals who own Conestoga Wood, or Hobby Lobby, can suffer, can do good and/or evil, and in general have free will as well as unlimited liability. There is, we could stipulate, no limit on the good or bad karma they can accumulate. But when a state charters a corporation, its liability is limited. That is usually much if not most of the point of the act of incorporation. Frankly, I could give a damn, as far as these lawsuits go, about the personal good or bad karma of Dick and Jane Conestoga, or Buffy and Muffy Hobby Lobby. The lawsuits asserting that free exercise of religion pertains to limited liability companies are frivolous.
If you thought the Supreme Court’s 2010 Citizens United decision was, shall we say, whimsical in its affirmation of corporate personality and free speech rights, get ready for Hobby Lobby to up the ante. The chain of arts-and-crafts stores objects to providing contraceptive coverage as required by the Patient Protection and Affordable Care Act. Their claim is that for-profit corporations have a right to free exercise of their religious beliefs. One appeals court, the 10th Circuit, ruled in their favor, citing “the First Amendment logic of Citizens United.” The federal government’s brief to the appeals court noted that “no court has ever found a for-profit company to be a religious organization for purposes of federal law.”
While Justice Kennedy‘s claim in the 2010 decision that the free flow of corporate money into political campaigns would create neither corruption nor even the appearance of corruption seemed dubious at the time and ludicrous in light of subsequent events, he has a chance to redeem himself this time. He has a chance to set fair and balanced rules of the game that apply to artificial corporate persons as well as actual natural persons. It’s simple: corporations are not just persons with free speech rights, they can be spiritual beings with religious convictions that deserve protection. OK so far? Then corporations are capable of self-transcendence and self-giving love, as well as selfishness and depravity. They can suffer, and even be crucified. But now the shoe of limited liability–so convenient for corporate well-being–no longer fits, does it? Unless the Supreme Court wants to acquit, I mean abolish, the death penalty for “persons.”
P.S. This blog takes no position on the Lutheran/Calvinist dispute on whether finite humans are/are not capable of the infinite (finitum capax/non capax infinitum).
- Court Confronts Religious Rights of Corporations (nytimes.com)
- Here Comes Hobby Lobby… (lawprofessors.typepad.com)
- Hobby Lobby supports review (scotusblog.com)
- Self and Brahman (thehindu.com)
- Supreme Court weighs new health law dispute (newsobserver.com)
- Can a corporation have a religion?: Hobby Lobby challenge to contraception mandate heads to Supreme Court (salon.com)