Hobby Lobby: The Corporation Cult & Creeping Theocracy
On Monday, an all-male majority chorus of Supreme Court Justices determined that a for-profit corporation’s right to exercise its religion is inviolable, and women should probably dummy up and why aren’t they barefoot and pregnant, making them a sandwich in the kitchen, by the way?
(a) people have a right to free exercise of religion, under the Constitution but within the context of this case, pursuant to the 1993 “Religious Freedom Restoration Act”;
(b) corporations are people;
(c) therefore, closely held (non-publicly-traded) for-profit corporations are free to impose their owners’ “sincere religious beliefs” on employees.
The RFRA sets up a scheme whereby a law of general applicability that allegedly interferes with a person’s free exercise of religion be strictly scrutinized to determine if it is constitutional. The law was passed in response to American Indians’ complaints that federal actions were interfering with their ability to practice their religion and hold services. It also extends to American Indians’ use of peyote in services, and it has been cited as protecting Rastafarians from prosecution for marijuana possession.
When your smug Obama-hating buddies start in with “unconstitutional”, that’s not this case. The Hobby Lobby decision did not rule on the constitutionality of anything.
The law is designed to protect people’s ability to worship by applying strict scrutiny to any accusation that a law of general application is violating someone’s free exercise rights. “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” The test a court will apply assesses whether the burden on religion is in the “furtherance of a compelling government interest.” The interest must be more than just routine, or a simple efficiency improvement, and relates instead to “core constitutional issues”. Secondly, the rule must be the least restrictive way in which to further the government interest.
Hobby Lobby, however, is not a person and is not exercising a religion. It is a corporate entity – a legal fiction – that sells picture frames and scrapbooking supplies. It’s not a “small business”, because this craft store chain has 15,000 employees and over 550 stores nationwide. It’s a closely held corporation, meaning it has corporate status but its shares are not publicly traded. Its fictional corporate “personhood” enables Hobby Lobby to operate and enter into contracts while limiting shareholder liability. The owners of Hobby Lobby’s shares are all evangelical Christians, and they make much of that on the company’s website.
Hobby Lobby offers health insurance to its employees, but in order to comply with the Affordable Care Act, the policies needed to cover certain types of contraceptives. Hobby Lobby claims that it objected only to 4 of the 20 specified drugs and devices, because it believes them to be abortifacients – a point that is, itself, open to debate. (Plan B, Ella, and two types of IUDs were affected. These are the morning-after and week-after pill and prevent a fertilized egg from implanting. The Health and Human Services regulation at issue did not mandate RU-486 be covered. Scientifically, these are not “abortifacients”).
Hobby Lobby itself was not mandated to hand contraceptives or IUDs to its employees, but merely to offer health insurance plans that covered them. Hobby Lobby argued that this mandate violated the company’s right to freely exercise its religion and sought injunctive relief enabling them to not pay for coverage of the four objectionable drugs and devices.
Writing for the majority, Justice Alito sided with Hobby Lobby. The majority, assuming the government had a compelling interest at stake, had a less intrusive way of meeting its goals. For instance, the government could pay for the devices and drugs itself, or mandate the insurers to pay for them.
So, the outrage over Hobby Lobby is overblown insofar as it’s being made to seem as if the company objected to all contraception. It is not, however, overblown on two other points; namely, the notion that corporations are somehow sentient beings that have “faith”, and the notion that your employer can interfere with and micromanage the coverages you contract for with your health insurer. Remember – it is the policyholder who is the contracting party.
As Justice Ginsburg’s dissent pointed out, this is a wild expansion of corporate rights at the expense of individual liberties. She noted that the majority’s decision, “invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faiths.” The majority basically responded that this was all no biggie.
Corporate personhood is a legal fiction – a convenience. Yet now we’re to believe that fictional people can hold real religious beliefs – and in many cases, the rights of the fictional person override the rights of a human being. Hobby Lobby as a corporation cannot exercise religion – physically or otherwise. This is the right-wing elite’s dream of expanding the cult of the corporation – something that kicked off when the Citizens United case declared that corporations can have 1st Amendment rights to spend unlimited money to influence elections.
Justice Alito explained why corporations should sometimes be regarded as persons. “A corporation is simply a form of organization used by human beings to achieve desired ends,” he wrote. “When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people.”
Justice Ginsburg said the commercial nature of for-profit corporations made a difference.
“The court forgets that religious organizations exist to serve a community of believers,” she wrote. “For-profit corporations do not fit that bill.”
If Hobby Lobby can, by dint of its religious personhood, pick and choose which statutes and regulations of general application it will follow, the same is true of any closely held corporation, regardless of religion. If Hobby Lobby can exercise religion and reject a health insurance mandate for certain prescriptions, then any for-profit corporation can claim “free exercise” and religion rights to reject anti-discrimination laws in hiring, or public accommodations laws. How soon before companies like Hobby Lobby have a “no gays need apply” signs out front, or “no handicapped applicants will be considered”, or “transgendered people and transvestites stay out”.
With this ruling, it should be mandatory that companies such as Hobby Lobby issue a formal disclosure of the corporate entity’s religious beliefs so that employees can make an informed choice whether to be employed there. It won’t, though, because we have elevated corporate personhood above human personhood, and we have elevated Christianity above all other religious beliefs.
Welcome to the new theocracy.