Here are a few final thoughts on Hobby Lobby. (I’m pretty sure I’ve said that before; however, Hobby Lobby seems to be the case that won’t go away.)
The Supreme Court takes about 70 cases during each nine month term. It only takes those cases it chooses to hear. Matters of great import, and cases where the federal circuits are split, represent its caseload. And, while its decisions directly affect the parties in the case, broad principles and clarifying/shaping the law provide its raison d’etre.
We pay the justices to handle the hard questions. And we expect, rightfully, that they come at each case straight up. (Yes, I know five male, Catholic members of the Court gave companies a pass on the contraception mandate, but I’m telling the civics class version of the story.) I think we should expect, too, that they will avoid issues begging for more litigation, and issues that divide us more greatly.
Here, there will be litigation! Lots of litigation!!! It’ll involve every imaginable hurt, real or perceived. And division? Something about “don’t discuss politics or religion” comes to mind here.”
On the litigation front, here’s what happened during Hobby Lobby week. First, the Court applied the Hobby Lobby ruling to 20 contraception products the day after its “narrow” decision in a case that only addressed four products. Then, on Thursday, the Court wandered into the matter of Form 700, the form required by the Department of Labor for entities seeking to avoid the mandate. The story gets very complicated, as it intertwines itself with ERISA, plan administrator definitions, etc. I don’t understand the nuances, and will surely get the issue wrong. That said, the Court told Wheaton College it need not complete Form 700, as the school claimed even completing the form infringed on its religious freedom. Just send a letter, the Court told the college.
What might happen? Well, Guantanamo prisoners are seeking protection under the Religious Freedom Restoration Act. There may be carve-outs in new regulations that require no discrimination against LGBTs by government contractors. And about same sex marriage? Assume the Court—as looks more and more likely—finds constitutional protection for same sex marriage. Won’t those companies whose owners can’t abide homosexuality have a right to deny benefits to the spouse, even where it otherwise provides benefits to dependents? Will it have to employ homosexuals at all? And then there are mixed race marriages? In Loving v. Virginia the Court struck down a Virginia law that banned mixed race marriages. Now, if mixed race marriages violate some religion’s tenets—think Bob Jones University—won’t a faithful person have a basis for not hiring someone in a mixed race marriage? (No one will be claiming the individuals cannot be married; instead, the company will be claiming a right not to have anything to do with them.)
Maybe the Court should have passed on Hobby Lobby, for every wrong does not have to be righted by the courts. For an eloquent argument in favor of skipping this case, here’s Judge Richard G. Kopf, Remembering Alexander Bickel’s Passive Virtues and the Hobby Lobby Cases. Judge Kopf, a U.S. District Judge from Nebraska (and a George W. Bush appointee), writes at Hercules and the Umpire on the role of the federal trial judge.
Then there’s the whole issue—my big issue—about the Court’s unprincipled approach to the difference between a corporation and its owners. Here, the Court may have done real damage.
The law recognizes a separation, or veil, between a corporation and its shareholders. A shareholder in a small business can be sued if his car hits a truck while he’s driving on company business, if the same event occurs and an employee was driving the car, the shareholder will not be liable. Corporation yes; shareholder no. Liability protection is a bedrock principle and purpose associated with corporations.
Courts will pierce the corporate veil and allow creditors to pursue shareholders as shareholders when the lines between shareholder and corporation get blurry. Most commonly—and these are not common situations—the “pierce the veil” argument comes when the shareholders run the business like a lemonade stand, taking money when they want to, keeping poor records, etc.
So, the theory goes, by allowing corporations to have the religious beliefs of their owner/shareholders, the separation no longer exists, leaving shareholders open to claims that exist against the company. Call me skeptical on this one, although there is something poetic about getting focused on minor, nothing issues, and having as an unanticipated outcome the loss of liability protection. Time will tell!
Finally, when I last checked, we have a warming planet, refugees at our doorsteps (with no plan for what to do with them), an education system in need of major reforms, a workforce that needs jobs, a tax system that fails us, et cetera. In the midst of these problems, did we really have time for Barbara and David Green and the hurts which the Affordable Care Act visited on them and, through them, their company? Can our nation really afford the time and effort associated with this nonsense?