Some Thoughts in Light of the Hobby Lobby Opinion

The Hobby Lobby decision handed down by the United States Supreme Court on June 30, 2014, has filled my head with reflections on what I consider a terrible decision by the high court. This is a blog, however, not a book, so what follows can only begin to express what I want to say about the court’s opinion.

As might have been expected from our very conservative Supreme Court, Burwell v. Hobby Lobby was yesterday decided in favor of Hobby Lobby by a vote of—you guessed it—5 to 4. (The decision is here.)

The effect of the decision is to grant a family-owned, for-profit corporation an exception from the requirements of the Affordable Care Act (ACA) to provide all forms of approved birth control to its employees at no cost. The owners of Hobby Lobby, a chain of arts and crafts stores, objected to providing certain kinds of birth control (such as IUDs) because they believe they cause abortions. (The scientific community does not agree with this analysis, by the way.) Members of the Green family, who own Hobby Lobby, are conservative Christians who claimed that their religious freedom was being infringed by the ACA requirement.

The Hobby Lobby decision is not, as some would have it, a victory for freedom of religion. It is, instead, another victory for a malignant individualism that is indifferent, or even hostile, to any sense of community or common good, an individualism that jealously guards its own religious practice while failing to consider the religious sensibilities of others. Rather than settling questions raised by the ACA, the Hobby Lobby opinion threatens to encourage ever more litigation harmful to the body politic. If there is anything positive to be said for the outcome of Burwell v. Hobby Lobby, it is perhaps that the decision at least calls attention to bad political decisions of the past whose effects require mitigation.

The Affordable Care Act was intended to make medical care available to all Americans at a reasonable cost. Moreover, it was designed to deliver certain basic medical services, such as immunizations and birth control, at no marginal cost and little effort to assure that such services are utilized. To accomplish these goals—goals that have eluded us for decades—certain burdens have been imposed on individuals and companies, but burdens that seem slight compared with the effects of taxes, environmental regulations, and the like.

The Green family claimed that their religious freedom was being infringed by having to fund, for example, IUDs for their employees, even though they are opposed to abortion for religious reasons. (Somehow it wasn’t considered important that the medical community does not believe that IUDs cause abortions and that IUDs are often inserted for medical reasons other than birth control.)

To the average citizen who pays taxes, registers an automobile, obeys traffic signals, and recycles trash, the Green family claim is ridiculous on the face of it. When a for-profit company does business in the public square, it necessarily has to conduct its business by society’s rules. Thus, for example, a hotel is not allowed to discriminate against potential guests on the basis of their race. As a corporation, various benefits—limited liability and tax advantages—accrue to Hobby Lobby, and society has a right to expect compliance with reasonable restrictions in return. Are not the Greens asking to be treated like individuals when it suits them and as a corporation when that is more convenient? (More on that below.) One might observe that

1.  The medical benefits that the Greens do not want to provide are really compensation for Hobby Lobby workers. Hobby Lobby would be laughed out of court if they did not provide birth control and, at the same time, said that their employees could not obtain birth control with their own earnings. What is the difference?
2. The Greens asked the court to allow them to impose their own (frankly idiosyncratic) religious views on their employees, many of whom, we may reasonably assume, have very different religious opinions. No doubt, many of those employees see birth control less as a right than as an imperitive for the preservation of their own and the earth’s resources.
3. Hobby Lobby exists to earn money. Irrespective of the fact that the Greens are generous with their earnings. Hobby Lobby is not a church or a church-related organization. Their claim on an ACA exemption would be more credible were it a non-profit, which it has not chosen to be. (But see below.)
4. The Greens are not Hobby Lobby. They are members of a human family, as opposed to a corporation. (Again, see below.)

The syllabus of the Supreme Court opinion begins

The Religious Freedom Restoration Act of 1993 (RFRA) prohibits the “Government [from] substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability” unless the Government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

This gets to the heart of the Supreme Court’s logic.  It goes something like this:

1. Corporations are people.
2. Closely held corporations can be owned by like-minded people, so that their sensibilities can be said to be those of the corporation.
3. The ACA applies to the likes of Hobby Lobby, but, given the above, the birth control requirement imposes a burden on the corporation/owners.
4. Although there is a compelling interest in providing birth control for all women, the government failed to show that requiring Hobby Lobby to do so was not the least restrictive means of achieving the government’s legitimate goals. 

Notice that, without the Religious Freedom Restoration Act (RFRA)—see the Wikipedia article and the text of the law—the case falls apart. RFRA was passed to right specific wrongs and was passed with virtually no opposition. It is clear, however, that it is a dangerous law that should be repealed or modified. When can one ever prove that a mechanism is the least restrictive possible method of achieving a certain goal? The possible mechanisms, after all, are infinite. Moreover, RFRA does not require a least restrictive solution consistent with other legitimate goals that might affect other parties (women employees of Hobby Lobby, for example).

RFRA, then, is too focused on the religion of individuals and too little on the wider concerns of society. RFRA should be amended or (preferably) repealed. Unfortunately, this is unlikely to happen. Despite our supposed attachment to the separation of church and state, in practice, we are very solicitous of religion. One effect of this extreme solicitousness is that conservative Protestants and Roman Catholics have been able to make increasingly outrageous religious freedom claims that others, and particularly religious liberals, are reluctant to attack. Significantly, TV news shows showed religious conservatives cheering the Hobby Lobby opinion. Where were the liberal Christians demonstrating against it?

Then there is the corporation as people thing. Most of us know that this idea in intrinsically ridiculous. The notion of corporations as people (though not as “natural persons”) is actually a handy fiction that, without a lot of specific law, allows corporations to do certain things that people do—to enter into contracts, for example. Like RFRA, however, the corporations as people thing needs to be reined in. Our corporate law would be more sensible if corporations were treated as persons only in carefully enumerated situations. The notion that a corporation like Hobby Lobby can have religious beliefs is ridiculous and pernicious.

Some commentators have suggested that closely held corporations are more like church-affiliated institutions such as schools and hospitals, for which the Obama administration has gone out of its way to make accommodations. I’m not sure I see this argument. In any case, the whole mess with the ACA could be avoided by making no special provisions either for churches or church-related institutions. If a public university, say, goes into the general labor market for teachers, why should it not have to abide by the same labor laws as everyone else? If the institution argues that providing birth control violates its moral principles, how is this different from a pacifist’s refusing to pay income tax because it supports the military? Operating in society has obligations. Besides, as I suggested earlier, medical insurance provided by an employer is really pay that the employee has earned. Perhaps an exception could be made for a church if (1) it has taken a public stand that birth control (or some form of it) is immoral, and (2) the employee is a member of the church. In general, religious freedom is not a licence to impose your religious views on others.

The real solution, of course, is to have a single payer for health care. It has never made sense to link health care to employment. (Even unemployed people get sick.) Historically, employer health insurance has been provided as a way of attracting employees and because workers tend to be healthy and can have premiums deducted from their pay. Obamacare is what it is because Democrats needed the support of insurance companies—an unfortunate but, in a sense, successful strategy—and wanted the support of Republicans—which, of course, didn’t happen.

So, here is my to-do list for a better society:

1. Implement a single-payer, unified health system.
2. Repeal RFRA.
3. Eliminate the treatment of corporations as people wherever possible (including considerations of free speech in political conversations).
4. Reform non-profit laws.

I am not, of course, holding my breath.