Why the Hobby Lobby Decision is a Victory for People of Faith and for Society
Guest Post by Daniel Ortner
The recent Hobby Lobby decision has been widely praised in the conservative media and greeted with deep alarm among the left. Yet, in reality the decision was a modest one that will likely have almost no impact on the employees of Hobby Lobby or Conestoga Wood. Indeed, the most likely outcome is that the government simply offers to religiously motivated for-profits the same accommodation that they are currently offering churches and religiously affiliated hospitals whereby upon certification of a religious objection, the health insurance providers cover contraception at no cost to the employer or employee.
So why is this case nevertheless a big deal? Why should members of the LDS Church and other people of faith celebrate the ruling? The threshold question in this case was whether the Religious Freedom Restoration Act which congress passed in the early 90’s to protect religious people of conscience applies to religiously motivated for-profit companies as well as churches and other people of conscience.
In other words, the key question is whether individuals who form for-profit entities lose the ability to assert religious freedom claims under the RFRA. For the dissent, because “an individual separates herself from the entity and escapes personal responsibility for the entity’s obligations,”[1] by incorporation, that individual cannot argue that a government requirement violates his/her individual conscience. In other words, because the law removes personal liability from most business decisions, the dissent suggests that an individual should be expected to compartmentalize or separate his faith and his business activities.
The majority correctly recognizes that this is a false dichotomy. Individuals start corporations for a variety of reasons, with profit being just one among many motives. Some “[b]usiness practices . . .are compelled or limited by the tenets of a religious doctrine,” [2] other business activities seek “to perpetuate the religious values shared . . .by their owners.”[3] Indeed, this is the natural outgrowth of our inherent right to religious freedom. As Justice Kennedy mentions in his concurrence, religious freedom includes not only the right to believe, but also “the right to express those beliefs and to establish one’s religious (or nonreligious) self-definition in the political, civic, and economic life of our larger community.”[4] Indeed, as the majority notes the very reason that rights are extended to corporations “is to protect the rights of [the] people.”[5] Separating the values of the corporation and the values of the owners is impossible because “Corporations, ‘separate and apart from’ the human beings who own, run, and are employed by them, cannot do anything at all.”[6]
As I read the majority’s opinion, I was reminded of the powerful words of Elder Jeffery R. Holland a member of the Quorum of the Twelve Apostles of the Church of Jesus Christ of Latter-day Saints. Speaking regarding compartmentalizing our faith, he explained “ Lesson number one for the establishment of Zion in the 21st century: You never “check your religion at the door.” Not ever. My young friends, that kind of discipleship cannot be—it is not discipleship at all. As the prophet Alma has taught . . . we are “to stand as witnesses of God at all times and in all things, and in all places that ye may be in,” not just some of the time, in a few places.” In line with this truth, the Supreme Court majority recognized that conscience is not like an article of clothing that one can take off and put on at will, but instead something that will embody both the business and personal decisions of a owners of a business.
The Hobby Lobby decision is an immense victory because the majority refused to draw the arbitrary distinctions between Church, Non-profit, and business that the dissent would have imposed. Indeed, although not referenced in the opinion, the Church of Jesus Christ of Latter-day Saints is actually a great example of a church that helps straddle this line, as the church owns both for-profit and not-for-profit entities. The for-profit entities are still run based on church principles of stewardship and the profits are used to further the work of the Lord. Likewise, while Hobby Lobby’s owners seek to make a profit, they also seek to further their faith. Indeed, they close on Sundays and forgo the lucrative sale of certain objects such as shot glasses contrary to their faith. They pay for spiritual counseling for employees and support missionary work. Each year they take out full page ads around the holidays declaring that Jesus is the savior. As such, profit and proselytizing are mixed consistent with the owner’s religious values. As the Supreme Court recognized, by starting a business, an owner is not required to “pursue profit at the expense of everything else.”[7]
Ultimately, I think the Supreme Court’s decision is a victory for a vision of society that liberals actually embrace. Indeed, companies such as Wal-Mart are routinely decried for putting profit above the interests of society and employees. Instead, companies are called upon to act “to further humanitarian and other altruistic objectives.” Liberals often for instance urge corporations to “take costly pollution-control and energy conservation measures that go beyond what the law requires,” based on principles of altruism.[8] As the majority notes, a majority of states now recognize a new corporate entity a Beneficent Corporation (B. Corp) which is jointly dedicated to profit and the public good. Hobby Lobby acts based on religious rather than secular motives, but similarly acts out of a desire to bless and benefit others rather than simply accrue profit. The Supreme Court’s decision is thus ultimately respectful and supportive of this vision. The Supreme Court embraced society as it is, full of individuals acting out of a variety of motives both selfish and selfless. Thanks to the Supreme Court, companies such as Hobby Lobby and the families that own and manage them, need not choose between commerce and conscience, but instead may seek to both do well and do good. That is something that ultimately people of faith and all of us should be able to celebrate.
[1] Burwell v. Hobby Lobby, 573 U. S. ____, 19 (2014) (Ginsburg J., dissenting).
[2] Id. at 21 (majority opinion).
[3] Id. at 22, n. 23.
[4] Id. at 2. (Kennedy J., concurring).
[5] Id. at 18 (majority opinion).
[6] Id. at 18–19.
[7] Id. at 23.
[8] Id.
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@Millennialstar @Jungledude762 thought you might like this
Any time one group successfully organizes to push/force their views on another group (in this case the corporation’s employees, but depending on the specific case the direction could go either way) the “winners” likely feel that they have “won” the day. However, what they don’t realize is that they have also set themselves up for a future crushing disappointment. How will those who want to forbid, control, or censor feel when they find themselves in the minority and they are the ones whose choices/options are suddenly restricted? When they are suddenly the ones to whom the laws no longer equally apply? One of the Constitutional principles the Justices in the majority seem to have conveniently overlooked is the equal protection clause. Once we start letting either the government or individuals start picking and choosing which laws apply, and which don’t, we are on dangerous territory. Extending freedom/equal protection to all just makes good practical sense in my opinion as it protects everyone’s options as well.
I’m reminded of a Gospel Doctrine Sunday School class I attended as a teenager, the teacher was expounding about how important it was to protect children from pornography and various other evils of the day (no problem so far) but then she continued on to say the people in attendance ought to petition their political leaders to ban certain books and magazines from the town (this was long before the modern internet world), setting up a review board. After a few minutes one of the older attendees in the class raised his hand and said (paraphrasing) “I admire your desire to protect, but what happens when the board you set up says we need to ban the Book of Mormon or the Bible because of all the sex and violence they contain?” The teacher of course protested that wouldn’t happen, and she couldn’t understand why some of us where worried about it. But the point was clearly made, we don’t extend freedom of speech because we think someone is correct in their analysis, we extend it to all in order to protect our own ability to think as we wish. Likewise we (until this week anyway) don’t usually exempt people from obeying laws on narrow religious grounds because as soon as we start doing that we (by definition) have to have the government (or random individuals who wish to assert an objection) judge what is a reasonable belief. Keeping a clear separation between Church and State (meaning the law applies equally to all) is the safest and easiest approach. The path the conservative majority of the Supreme Court has started down is one of the government being allowed to exempt those it favors from obeying the very laws it passes. It is simply a dangerous precedent and path.
The interesting thing is how quickly religious people have pivoted from trying to be a “Moral Majority” to protecting diminishing areas of religious freedom in a mostly secular society. The fact that four Supreme Court justices would vote to force some people to pay for other peoples’ abortifacients and ignore their deepest religious beliefs is a truly alarming sign of how far gone we are as a society. The Hobby Lobby decision is a good one but it should have never even been a question.
TheMillennialStar: Why the Hobby Lobby Decision is a Victory for People of Faith and for Society http://t.co/LfNhRoIMfl #lds #mormon
Hobby Lobby is not forcing their views on their employees by choosing not to provide a certain benefit in accordance with their religious beliefs. The employees are still perfectly free to obtain abortifacients on their own dime. Nobody has a right to force someone else to provide anything unless they are contractually obligated to do so.
JSH, what Aaron said. ^
John Swenson Harvey, I hear your argument about this Hobby Lobby decision all the time, but no one ever gives an example what “the other feet” would be.
Jettboy,
if the Hobby Lobby decision isn’t overturned, it would be legal for your employer to stop paying tithing for you. You’d have to pay it yourself.
Just a few facts that will help people understand the reality of where we are today.
–Hobby Lobby was OK with paying for 16 out of 20 forms of contraception. The only ones they were not OK with paying for are abortifacients.
–Men and women can still go buy their own abortifacients at about 1000 other places with their own money. They can also buy supplemental insurance policies that can cover these forms of birth control.
–Hobby Lobby’s insurance plan continues to pay for tubals as well as vasectomies.
And just a brief rant that is nevertheless factual: this whole mess was started by too much government involvement in the health care business in the first place. Companies began providing health insurance as a benefit because of wage and price controls during WWII (imposed by the government). The government then made the huge mistake of providing tax breaks to employers for providing health insurance to employees, thereby linking employment to health insurance. This third party payer system is the primary cause of rising health care costs. Obamacare took this ludicrous and expensive system and made it even worse by *forcing* companies to cover birth control whether they wanted to or not, which brings us to the situation today where people are claiming they are being *denied birth control* by corporations.
If the government had stayed out of health care in the first place, or offered the subsidies to people buying health insurance rather than the companies that provide health insurance to their employees, we would not be having this conversation. People would buy their own health insurance and would choose from a variety of different options, and if they wanted health insurance that covered abortifacients then they could go get that health insurance.
This problem is the result of government meddling where it should not.
Jettboy – You really can’t think of even one law which benefits you that someone else might object to on some religious grounds?
Adam G. – I don’t understand your reply comment to Jettboy, can you clarify? I doubt his employer pays his tithing – and even if the employer did there is no law which compels the employer to do so.
John Swenson Harvey, no I cannot within the context of this law. humor me.
“I doubt his employer pays his tithing – and even if the employer did there is no law which compels the employer to do so.”
That is Adam G.s point. There is no law, or at least shouldn’t be, that an employer should pay anyone for anything other than wages earned.
I think John Harvey makes a valid point about the potential perils of legislating morality. The exemption Hobby Lobby seeks to the contraception mandate is a poor example of this however, as Hobby Lobby is in the decided minority of companies run by people of strong faith that object to a policy promulgated by the powerful HHS and the Obama Administration. Thus, this isn’t the case of a powerful religious majority imposing on others.
Hobby Lobby is merely seeking a personal accommodation not looking to stop the contraception mandate or stop its employees from getting contraception. As such, there is no coercion involved.
Perils of legislating ‘morality’? How about the impossibility of legislating amorality?
Employer provided health insurance is compensation, usually in lieu of higher wages.
For what it’s worth, I believe some countries (e.g., Italy) take (or have taken) money from people’s pay to send it to the state-recognized Church.
This made it hard for non-Catholics who wished to donate to their own Church. The state forced them to tithe to the state Church, and then they of their own will also desired to tithe to their own chosen religion.
I realize that’s not quite like the employer paying tithing, but just wanted to say such a suggestion isn’t quite as ludicrous as it looks.
I don’t understand your reply comment to Jettboy, can you clarify? I doubt his employer pays his tithing – and even if the employer did there is no law which compels the employer to do so.
To spell it out a bit more:
The “crushing disappointment” women are feeling is that their employer isn’t picking up the tab for a wholly discretionary use of funds that the employer finds repugnant. The only “crushing disappointment” Hobby Lobby apologists could possibly be setting themselves up for is finding that our employer won’t pick up the tab for a wholly discretionary use of funds (like tithing) that our employers happen to find repugnant.
In other words: Welcome back to the real world, folks. Pay for your own darned sex lives.
“In other words: Welcome back to the real world, folks. Pay for your own darned sex lives.”
You mean, grow up and be an adult? Be responsible? And not expect other folks to pay for your junk?
You’re a radical, sir.
HL, in negotiating the labor market, decides to offer health benefits to employees in return for their labor. This decision is greatly helped by government subsidies (in the tax code) for employers to provide health insurance, which cheapens the cost of HL’s competitiveness in the labor marketplace. The health benefits belong to the employees who have already paid their labor for them. They are not some gift from HL. So HL decides that it wants to keep its subsidy from the government, but insist that the subsidy only be delivered in their unique christian flavor. It’s a repugnant decision for religious freedom, personal responsibility, and the rule of law.
(Surely HL does not find the “abortifacients” to be morally repugnant, as it has freely provided them at all times up until this decision).
“So HL decides that it wants to keep its subsidy from the government, but insist that the subsidy only be delivered in their unique christian flavor.”
Konnichiwa,
Well, your beef it seems is with RFRA, not necessarily HL. Closely held businesses are not only the lifeblood of the economy, but represent a majority of businesses numerically.
You have your facts wrong on the “abortifacients” by the way. And also, it does not matter if scientifically they are not actually “abortifacients”. What matters is that the Green family *believes* them to be so. Courts wisely do not judge theological doctrines except in extreme cases. The Green family deserves the benefit of the doubt. That’s what liberty is all about. We have to learn to live with true diversity, and that includes closely held folks who want to express their religious ideals through their everyday business activities.
I definitely understand how it can be seen as a slippery slope to “legislate morality”. However, I agree with several of the comments above. Hobby Lobby was not lobbying (no pun intended) to ban or outlaw the “abortifacients”, only their requirement to provide them. I honestly do not see how someone should force a leader of a company to be involved in providing something to which he/she feels morally opposed.
But, how is it not a slippery slope to mandate companies have to provide those types of services? I agree with Geoff B.’s comment above, which suggests this problem is a symptom of the bigger problem that employment is connected to health insurance. I think any move the government makes to subsidize or in any other way further this flawed relationship just furthers the problem.
There are landmines in that decision that Justice Ginsburg as well as others have pointed out. They are already starting to explode.
1. There is no definition of “closely held”
2. How many or what percentage of owners have to have such a belief?
4. A Catholic corporation announce it will say it applies to all types of birth
control
5. A Southern California corporation is going to sue to allow corporations to
not hire but be able to fire LGBT people.
6. Sincerity of belief is not supposed to be challenged (I am reminded of a
situation that happened in California. It was legal to form a church with 4
people. A family did that, deeded their house to the Church, took a large
charitable deduction and claimed they did not owe property taxes) If claims
cannot be challenged, what an opportunity.
Quick Question. How many owners have to convert to Christian Science or Jejovah’s Witnesses in order not to have to pay any medical at all?
“There are landmines in that decision that Justice Ginsburg as well as others have pointed out. They are already starting to explode.”
I found Ginsburg’s dissent to be rather on the histrionic side. I think the word “explode” is a bit much.
Guess what? Liberals are usually very happy letting the courts work these things out. Except, of course, when the courts go against their political conceits. Then, all hell breaks loose, and they opine for executive orders.
This decision is greatly helped by government subsidies (in the tax code) for employers to provide health insurance, . . .
Which subsidies are these, exactly?
Or is “subsidies” here NewSpeak for “not having to pay a penalty”?
A family did that, deeded their house to the Church, took a large
charitable deduction and claimed they did not owe property taxes) If claims
cannot be challenged, what an opportunity.
That’s not a corporate issue; that’s a tax code issue involving whether an entity qualifies for nonprofit status and there’s an ample body of case law already in existence to deal with such issues.
**So HL decides that it wants to keep its subsidy from the government, but insist that the subsidy only be delivered in their unique christian flavor.**
What subsidies? Business expenses are always a 100% write-off from taxes, but no one has ever thought that was a subsidy.
With health-tax, what there is is a “subsidy” for the employee, not for the employer. The employee doesn’t have to pay tax on health insurance.
And even if there were some kind of subsidy to the employer, it would only apply to the health benefits that the employer actually paid for, not to birth control pills that it didn’t buy. You seem to think that the government just sends big checks to corporations with cover letters asking them to pretty please use the money to buy healthcare for their employees. That thought of yours is, how to put this nicely, ah . . . forget it, can’t be done.
I have a request for you. When you vote, please don’t forget that the vote won’t count unless you leave the chad hanging.
After reading this, I will have to say that it is a good decision for business overall. Why? because decent business works well from a management and an employee standpoint when there are a diversity of different ways individual businesses choose their practices. Concering HL, I consider the ruling in their favor a good thing, not neccessarily for feelings about birth control, but honestly, if people are so adamantly opposed to their practice of not covering specific types of birth control, well, there’s no law saying that you have to get a job with them. If someone wants coverage for certain forms of birth control so badly, they can honestly seek employment at another business that covers it.
As for offending someone, why should I, someone who believes that premarital sex is immoral, not feel offended that some people have to pay for their own contraceptives? Why should I, someone who would have to pay over 400 dollars if uninsured for my prescription medications for serious health problems that I deal with, have to be offended if someone isn’t covered for something far less costly?
The fact that someone is being offended is a vague concept. However, in the context that people are reacting to the fact that someone has to pay for their own sex life, the same as what my wife and I would do, which is trivial to the amount even spent on a child, really, some people just showed some serious immaturity through that reaction.
An interesting perspective on this is women feel that the sexual consequences fall disproportionately on them, and that these sexual consequences are sometimes not due to any desire on their part. Rape results in any number of conceptions that are not desired by the woman. And some subset of the time, a woman who has been raped is not in a financial position to pay for their birth control.
Ironically, the belief that women have easy access to birth control has increased the rate where women are raped.
I would say that the best revenge for a raped woman would be to give birth to the child and locate/sue the father based on DNA. Unfortunately, I am personally aware of instances where the man who engendered an undesired pregnancy on a woman then either planned or acted to damage the woman so severely as to cause the child to die prior to birth. This happened both in situations where the father and mother were not married as well as in cases where the father and mother were married.
Because of this rape/violence aspect to conception and non-medical abortion, you will see individuals become very strident on this issue. I think wise responses on this matter need to take this experiential concern into account.
“Because of this rape/violence aspect to conception and non-medical abortion, you will see individuals become very strident on this issue. I think wise responses on this matter need to take this experiential concern into account.”
Strident enough to fight bans on third-trimester abortion? Sorry, gotta draw the line somewhere.
I don’t doubt that the Hobby Lobby owners are ethical folks who generally do well by their employees. This narrow decision is falsely claimed as a victory for religious liberty; it will be used as precedent by the less religiously principled. Court decisions are inherently abstract, must be applied to dissimilar circumstances, and have unintended consequences. As I read the Hobby Lobby briefs and comments they reminded me of arguments made by Southern church-goers supporting segregation on similarly private moral grounds.
The Hobby Lobby decision cracks the Civil Rights Act, which redefined the national “public” as non-exclusive, in which corporations and individuals could not impose their private beliefs in the public sector activities like business (hiring and sales). The conservative-controlled court sets about re-errecting the protective legal wall around a business’s ability to dictate private activity to employees. Argument was made that the company is privately owned; but their employees are drawn from the public at large, not from some private labour pool, and they intend to conduct business in a public marketplace. Flip the decision and some comments made here on their head and one could argue that the suit was not about forcing the corporation owners to believe that their employees were acting moral or not, just to provide health care.
The precedent provides footing to argue that on personally held religious grounds a company could not to hire someone who was Muslim, or believed in spacemen, or worshipped trees. In the event the company was taken over by radical Christian Scientists, they could also refuse to provide healthcare at all on religious grounds. In short, the decision reestablishes corporations’ ability to act arbitrarily from the interests of a few people at the top. Corporations are not citizens and they should not be afforded the rights that the Constitution reserves to citizens only.
Sadly, it seems to be a legal argument and decision straight out of the Gilded Age and its “freedom to contract” rhetoric. I am afraid the decision re-institutes the power-dictates-morality perspective of that time. I doubt Hobby Lobby will go that far–they strike me as honourable men (and women). I am not so sure about those who will invoke the case as precedent.
Richard Saunders,
I honestly doubt you read it thoroughly, because the opinion clearly stated that the ruling was limited to the facts of the case and wasn’t going to cause the parade of horribles that you mention. In fact, Alito specifically mentioned that the ruling wasn’t going to give businesses the right to discriminate on the basis of race, sex, etc. Those protections are in place.
It’s unfortunate that you didn’t read the actual opinions.