The Hobby Lobby decision

“I’m not a. . . ” Jon Stewart recently did a montage of statements from politicians in which they declared repeatedly what they are not.  “I’m not a legal scholar, but. . . ” I’m not a professional chef, but. . . ” “I’m not a climate scientist, but. .  . .” It was a funny bit.  Obviously, the point of saying “I’m not a. . .” is to insist, against all evidence, that a person nonetheless has something cogent to say on a subject in which s/he isn’t actually expert, with the amusing subsequent possibility of idiocy resulting.  “I’m not a rocket scientist, but it seems to me that if we’re going to send astronauts to the sun, we should probably go at night.”  That kind of thing.

Well, I’m not a legal scholar, but. . . ”  I’m a playwright, with a Ph.D. in history.  Uh, make that ‘theatre history.’  I’m not an attorney, a law student, a legal scholar.  I’m a guy who writes dramatic entertainments, for fun and for profit. And I’m a guy who likes reading court decisions.  I read for kicks.  I like Supreme Court decisions basically because I like the logic of them, and I dig the prose.  They’re not written in legalese, really.  The language is accessible.  So with all those caveats and disclaimers, understand that I probably don’t know what I’m talking about.  But the recent Supreme Court decision in Burwell v. Hobby Lobby is really amazing.

First of all, let’s admit this: as big, for-profit corporations go, Hobby Lobby is one of the good guys.  They don’t sell cocaine.  They don’t sell missiles.  They don’t sell smallpox diseased blankets. They sell crafts supplies.  Check out their website.  They have knickknacks you can use to spruce up your backyard patio.  Cool stuff.  And they treat their employees fairly.  They pay double minimum wage for full-time new hires.  They give lots of money to charity (well, Liberty and Oral Roberts Universities).  They close the doors of their stores at 8, instead of 9, to give employees more of a family life.  They close on Sundays.  On a moral continuum from ‘contemptible’ to ‘Christ-like’, with the Tijuana drug cartel way over there on the left, and the American Red Cross on the right, Hobby Lobby’s over there towards the right, next door, but to the left of, Costco.  Way to the right of, like, Walmart.

But now, because of Obamacare (shudder) (ironically), they have to provide health care for their employees, something they were already kind of doing.  They’re run by the Green family; their CEO is David Green. And he’s a very religious guy.  And he objected to paying to provide some kinds of birth control for his employees.

There are 20 different birth control medications approved by the FDA.  4 of them, including morning after pills and IUDs, constitute, in the opinion of some Christian traditions, de facto abortions.  If ‘personhood’ begins at conception, then birth control methods that terminate post-conception zygotes would be, I suppose, sort of abortion-y.  Those are the methods to which Green objected.

Here’s the logical chain of his objection, best I can ascertain it.   The Religious Freedom Restoration Act of 1993 restricts the government from “substantially burdening a person’s exercise of religion.” The ACA (Affordable Care Act–Obamacare) required employers to provide birth control, and allowed the Department of Health and Human Services to define what, specifically, that meant.  They declared that all 20 birth control options approved by the FDA were covered.  Religious non-profit organizations, however, who objected to contraception mandates, were exempted.  Hobby Lobby is a for-profit corporation mostly owned by one family, and run by members of that family.  So Hobby Lobby can claim that it is a religiously oriented for-profit corporation, and that it should receive a similar exemption to the ones non-profits receive.

So that’s the first issue: can a for-profit corporation define itself as a person with religious objections to, well, anything?  I wouldn’t have thought so.  Who owns a corporation?  Shareholders, officers, employees?  Presumably a big variety of religious opinions are included within the ranks of ‘owners.’  This would be particularly true of a publicly traded company.  But Hobby Lobby is not publicly traded. It’s owned by a small number of people, nearly all of them from one family, all of them religious.  To quote Justice Alito (writing for the majority):

Finally, HHS contends that Congress could not have wanted RFRA to apply to for-profit corporations because of the difficulty of ascertaining the “beliefs” of large,publicly traded corporations, but HHS has not pointed to any example of a publicly traded corporation asserting RFRA rights, and numerous practical restraints would likely prevent that from occurring.
In other words, theoretically, any company might claim a religious exemption, but mostly, such claims would probably fail.  But it doesn’t fail to a company like Hobby Lobby, which only has a few owners.
But what’s the difference between a company offering 16 different methods of contraception and offering all 20?  Since the women employed by the company are the ones that decide which method to use (presumably in consultation with their physicians), then why would it be sinful for the company if some employees choose a method of which their employers disapprove?  It’s here that Alito’s decision starts to fall apart.
The belief of the Greens implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is immoral for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another. It is not for the Court to say that the religious beliefs of the plaintiffs are mistaken or unreasonable.
So, it’s not sinful for employees to choose which contraception methods they’ll use, but since, in the opinion of their employers, some of the possible choices are immoral, their employers might end up sinning second-hand?  If I’m a pacifist, I’m opposed on moral and religious grounds to all war.  Can I object to paying taxes, if those taxes might be used to build weapons?  Obviously not. This ‘second-hand sinning’ stuff seems seriously problematic to me.  Obviously, HHS isn’t requiring David Green personally to abort a fetus.  Maybe one of his employees might, of her own free will, take a medication that, to Mr. Green, might be construed as abortion-like. That strikes me as a problematic standard. And Alito offers no legal reasoning to support this, to me, odd little side-step.
The court also suggested that if the government wanted to give women the option of using other birth control methods than the 16 the Greens approve of, the government could simply pass a bill paying for it.  “The Government could assume the cost of providing the four contraceptives to women unable to obtain coverage due to their employers’ religious objections.”  That’s almost comically naive; obviously, today’s Congress is never going to pass a law approving any such thing.
Then, right at the end, Alito’s decision veers into sheer incoherence.
This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandate for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs. Nor does it provide a shield for employers who might cloak illegal discrimination as a religious practice.
Just ’cause.
It’s really bizarre.  The court crafted a narrow ruling out of whole cloth. If the Greens can refuse to offer their employees birth control options they, the Greens, object to, then why couldn’t a Jehovah’s Witness CEO refuse to provide her employees with health insurance through which they might get a blood transfusion paid for?  Well, they just can’t.  Alito offers no rationale for this, no legal justification for it, no logical transition to it.  He just says ‘this exception is limited to this one case only, because we say so.’  No slippery slopes on this hill!
Justice Ruth Bader Ginsburg’s dissent makes for fun reading.  If you don’t want to read 35 page dissents, here’s a highlight reel.  Or, if you’d prefer to hear her dissent in song form, here you go!
So it’s a narrow decision.  Justice Alito says so. But as often is the case with women’s health issues, (male) trolls pretty quickly started crawling out from under their bridges.  My favorite was our own Mike Lee (sorry, that should be Constitutional Scholar Senator Mike Lee), who opined that women use birth control for ‘largely recreational reasons,’ (or agreed with another troll who said it), and added “this administration is using the often coercive power of the federal government to force people into their way of being and their way of existing, their way of believing and thinking and acting.”  Not really, no.  Contraception is medication. 60% of women have used contraception for reasons other than to prevent pregnancy.  Also, what’s wrong with preventing pregnancy?  Isn’t it wonderful, that we live in an age where women can make their own decisions about how they’re going to live their lives?

So how is the Hobby Lobby case not an example of unwarranted judicial activism?  There are three women on the Supreme Court; they were joined, in dissent, by one man, Justice Breyer.  Also, and I feel bad pointing this out, but it does seem germane; there are five Catholics on the Court.  Roberts, Thomas, Scalia, Kennedy.  And Samuel Alito, hapless author of this unfortunate decision.  Meaningful?  That all five Catholics on the court concocted this bizarre mess of a decision, which also happens to deal with contraception and sort-of-abortions?
Here’s what I think: Kennedy, or maybe Kennedy and Roberts, was leaning towards joining Ginsburg.  So Alito appended this odd little final paragraph, limiting the possibility of Hobby Lobby causing further mischief down the road.  We’ll see what further mischief it actually causes.

One thought on “The Hobby Lobby decision

  1. Jerry Hale


    I enjoyed your analysis and it made me consider a few things I hadn’t before.

    One point of clarity I might contribute is that while Alito’s decision you quoted may appear to be “just because,” without a legal argument, it is actually based on a firmly intrenched legal principle that applies to RFRA, that a “compelling government interest” can trump religious rights. It is insinuated that the religious defense wouldn’t hold up for blood transfusions and immunizations because there is a compelling government interest in providing procedures that save lives, and on a massive scale.

    This “compelling government interest” must also be implemented in the “least restrictive means” possible. For eradicating disease and treating life-threatening blood loss, there are currently no less-restrictive means for accomplishing this, so these can be enforced. There are many means for birth control, so the government doesn’t need to force certain methods to be covered.

    There will definitely be more cases testing the limits of this ruling on both ends of the spectrum, but that’s part of our ever-evolving system of law.

    (I would also note that while the women all voted against the ruling and the Catholic men voted for it, the women are also all liberal judges and the same split occurs often with issues unrelated to women and religion. Different world views lead to different applications of the law, but I wouldn’t consider it unjust activism just because I don’t agree with the ruling.)


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