Hobby Lobby and the Pill

March 24, 2014

On Tuesday—today, unless you’re reading this blog post on Monday evening—the United State Supreme Court will hear arguments in Sebelius v. Hobby Lobby Stores, Inc., No. 13-354. This case involves a corporation’s right to ignore certain parts of the Patient Protection and Affordable Care Act aka the ACA and Ombamacare. Basically, David Green and his family—owners of the Hobby Lobby chain of craft stores—want to avoid the obligation in the ACA to include contraceptive coverage in all qualifying health insurance plans. More precisely, the issue before the Court is:

Whether the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. §§ 2000bb et seq., which provides that the government “shall not substantially burden a person’s exercise of religion” unless that burden is the least restrictive means to further a compelling governmental interest, 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.

Hobby Lobby is a “big deal” case in many respects. For-profit corporations exist in this country for the limited purpose of giving businesses the ability to aggregate capital, gain protection from liability for their owners, and make money. They do not exist to have religious views, or to have thoughts or feelings about this or that.

The Court gave corporations some “people-rights” in Citizens United. Bad move! Still, there’s an argument that elected officials affect the issues of the day, and that corporations are affected by how elected officials address the issues of the day. For these reasons, the argument goes, corporations should be able to contribute to political campaigns in one form or another. Bad idea, but there’s some logic behind it!

That all said, Hobby Lobby operates as a business entity in many states, employs tens of thousands of people (correction:  apparently about 13,000), and makes lots of money for its owners. It has no religious views. It can’t go to church on Sunday! It can’t pray! And it won’t have an afterlife!!! Sure, the Greens—the owners—may have all that and more on account of their faith, but the same principle that protects them from liability for corporate acts should distance their personal, no doubt deeply held beliefs from Hobby Lobby Stores, Inc.

That our courts, much less our Supreme Court, seriously consider the notion that for-profit corporations can be affected by a law that protects religious freedom seems like an “only in America, only in these times” concept. That Hobby Lobby might win frightens me greatly!

Our civil society breaks down when every issue becomes a matter of personal rights. Hobby Lobby does not have to provide health insurance to its employees. Yes, it will pay a penalty, but part of living in America involves paying a price for your beliefs. People whose religious beliefs mandate that they not go to war don’t have to go to war, but they don’t get to skip national service. Long-settled law tells us we, as taxpayers, don’t get to pick and chose what we pay for. We pay our taxes, government uses our money, and our “out” is the ballot box. Alas, for society to function we can’t have people—and we certainly can’t have corporations—picking and choosing what laws they do and don’t follow.

From my perspective, while the issue before the Court matters greatly, what really counts here is the notion that we can all go our own way, whenever we wish, just by saying “your law infringes on my beliefs.” Somewhere, somehow, the notion of “we’re all in this together” lost to “don’t tread on me” the war it probably didn’t know it was fighting. And we’re worse off for it.

For the best coverage on this issue, go to SCOTUSblog. I haven’t read everything, but what I have read is really comprehensive, deep, and thoughtful.

Finally, there is a minor subplot here involving Justice Antonin Scalia. Justice Scalia wrote the majority opinion in Employment Division, Department of Human Resources of Oregon v. Smith, a 1990 case about whether employees could be fired for using peyote as part of what they claimed was a religious ritual. Justice Scalia said no, claiming the law supersedes private religious beliefs. Maybe the opinion expresses his views, or maybe he didn’t like the idea of peyote smokers claiming they smoke because of G-d.

Admittedly, the statute at issue in Hobby Lobby was not yet written in 1990. Regardless, the basic legal principles associated with this case differ not very much at all. Alas, Justice Scalia’s views on reproductive rights and the ACA likely differ greatly from his views on peyote smoking as a religious ritual. I’d like to be optimistic about consistency, but Justice Scalia explained his changing view of the Commerce Clause and its relationship to the ACA by claiming “wisdom has come late.” Will he be “wiser” one more time? For an excellent piece about Justice Scalia and the issue, read Justice Scalia’s Past Comes Back to haunt Him on Birth Control at Talking Points Memo.


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