Hobby Lobby Ruling Isn’t Just Anti-Woman; It’s Anti-Employee

LawAndOrder

My twitter feed lit up this morning with rueful jokes that the only hope women have of maintaining any reproductive freedom is if they incorporate their uteruses. It is easy to look at the Supreme Court’s decision in the Hobby Lobby case as anti-woman. Frankly, it’s hard to argue that it’s not anti-woman, given the court’s care in limiting the reach of its ruling to contraceptive methods used by women. It’s also not hard to see how the decision, although technically about contraceptives, is also anti-abortion.

But even more than misogynistic and anti-abortion, the Hobby Lobby ruling is pro-employer and pro-business, which puts it in excellent company with the other big decision today, Harris v. Quinn. In both cases, the Supreme Court invokes a constitutional right to justify an exception to generally applicable rules of law. In both cases, the constitutional angle is a stretch. And in both cases, the outcome is highly beneficial for employers.

In Burwell v. Hobby Lobby, the Supreme Court is not directly applying constitutional principles. Rather, it’s applying the Religious Freedom Restoration Act, a law Congress passed in 1993 in response to an earlier Supreme Court decision, which creates broader protections for religious freedom than the court had found under the Constitution. But the key question – as it likely would be if the case were simply applying the First Amendment and not the RFRA – was whether a corporation was a “person” capable of having or exercising religious freedom. Today, the Court said yes.

Why is this a big deal? Well, you have to understand what corporations are. In short, they are fictitious legal “people” who own business assets. They exist because the government passes laws creating them, and their purpose is to insulate their owners from crushing financial risk, and create a transparent structure so that many people can contribute smaller amounts of money to a business. The idea is that if a person who wanted to operate a business ran the risk of having her house foreclosed on to satisfy the business’s debts, she would be discouraged from starting the business in the first place. Likewise, if businesses could only be as big as the small amount of money that any one person felt comfortable risking, businesses would never get very big at all. So, traditionally, a corporation is a “person” in the eyes of the law for debt, profit, and liability purposes. A corporation has official documents that define its purpose (usually, some variation on “to maximize profit for shareholders”), and when a corporate officer mixes her own money with corporate money, uses corporate money indiscriminately for purposes that don’t advance the corporation’s defined interests, or otherwise blurs the line between business money and personal money, she can be sued personally (this is called, poetically, “piercing the corporate veil“).

What Hobby Lobby does is expand the corporate veil, a process that started with the 2010 Citizens United decision. Citizens United said that corporations, as people, had free speech rights, and since political contributions were a form of speech, limits on corporate political contributions infringed on free speech. The Supreme Court, in Hobby Lobby, takes the next logical step:

When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of [the shareholders]. For example, extending Fourth Amendment protection to corporations protects the privacy interests of employees and others associated with the company. Protecting corporations from government seizure of their property without just compensation protects all those who have a stake in the corporations’ financial well-being. And protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies.

That seems logical until you remember that corporations are legal constructs designed to help people make money – essentially, a government-created benefit. They have extraordinary advantages over real-life people in their ability to make money, and by law, they can only exist for a certain purposes. (You can’t create a corporation devoted to getting drunk and sitting on the couch, take out a line of credit, and then avoid paying for all that beer and Pay-Per-View.) (Oh man. If only.) Usually, when the government creates benefits, it can regulate them for the common good: your right to be free from government search and seizure, for example, is significantly lower when you are driving in the highly regulated space known as a public roadway. The Supreme Court has always reasoned that if you don’t like that, fine: don’t drive on public roadways.

The genius of Citizens United and Hobby Lobby is to extend to corporate persons all sorts of rights that they can’t actually exercise the way normal people do. This isn’t because corporations somehow want to go to church or to stand up at town hall meetings and voice their opinions. It’s because the people who run them want to do what corporations are made to do, make more money, and they want to do it without regulation. The pious folks who run Hobby Lobby and the other companies involved didn’t sue Health and Human Services because they wanted to close on the Sabbath but were being forced to stay open. They sued because their religious beliefs lined up with getting out of a healthcare obligation that would have cost them a lot of money. (To Hobby Lobby’s credit, they do keep the Sabbath holy. To their detriment, they invest in companies that make the kinds of contraception they claim are impardonably sinful, and they seem to have all the materials you could ever need to “make for yourself an image in the form of anything in heaven above or on the earth beneath or in the waters below.“) That’s the key to this ruling: it’s an employment ruling dressed up in a religious freedom clothing.

This becomes clearer when you read the Harris v. Quinn decision. That case concerns an Illinois law that allowed state-paid home health aides to unionize and deducted a fee from the wages of health aides who didn’t want to join the union, to fund activities the union carried out on their behalf, like contract negotiation and arbitration. The Supreme Court ruled that forcing the non-union health aides to pay the fee was like forcing them to support the union’s political activities, which was like speech, and states can’t force anyone to speak.

This is, again, a tenuous constitutional argument, especially because the Supreme Court already ruled, 37 years ago, that public employees could be made to pay such a fee, as long as the money was exclusively used for “collective bargaining, contract administration, and grievance adjustment”; that is, not political activity or contributions. With that limitation, it is hard to see how the fees constitute speech, unless you accept the notion that any action that tends to perpetuate the existence of labor union is constitutionally protected speech. By that reasoning, being forced to accept the higher, union-negotiated wage could constitute speech, but none of the plaintiffs in the case has asked any court to lower wages (the named plaintiff, Pamela Harris, doesn’t pay the fee in question, because she is part of a non-unionized group of home health aides who are paid directly by the people for whom they care, who receive funds from Medicaid). The Supreme Court also has a considerable history of allowing public employers to limit their employees’ speech in various ways. Way back in 1973, the Court observed that “even something as close to the core of the First Amendment as participation in political campaigns may be prohibited to government employees.”

Seen through the lens of prior Supreme Court cases on the issue, it’s hard to see the non-union health aides as having been compelled to speak, any more than I am compelled to speak when I pay a private company to do the emissions test for my car. But coming, as it does, on the same day as Hobby Lobby, Harris v. Quinn is not hard to put in context. Dressed up as a blow for constitutional rights, the decision is essentially an exception to the general rule of contracts, which is that two parties can make an agreement to do just about anything that isn’t illegal, including charging fees to a third party. And it’s not just any exception; it’s an exception that happens to undermine unions and help employers. (It’s not an accident that the non-union health aides had their case taken up by the very conservative, Koch brothers-funded National Right to Work Coalition Legal Defense Fund, whose mission is “to eliminate coercive union power and compulsory unionism abuses through strategic litigation, public information, and education programs.”)

So however you feel about Hobby Lobby, understand that it doesn’t simply represent the ominous acceleration of the pendulum away from women’s reproductive rights (it does), but also, along with Harris v. Quinn, another step in the full-fledged and already well-developed movement toward expanding the rights of employers and reducing those of employees.

 

Josh Michtom is a public defender in Hartford, Connecticut. He spends way too much of his spare time decorating his children’s school lunch bags.

Photo by the author.

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22 Comments / Post A Comment

charmcity (#1,091)

Josh, thanks for expending some digital ink on the Harris v. Quinn decision – Hobby Lobby deserves lots of attention, but you are absolutely correct that both of today’s opinions are bad for working people regardless of the flavor of reproductive organs they enjoy.

garysixpack (#4,263)

I guess we’ll never hear Josh complain that a corporation is acting immorally.

@garysixpack Right. Only its officers.

garysixpack (#4,263)

@Josh Michtom@facebook
But I thought the officers of Hobby Lobby are trying to act morally. You may not agree with their morality, but I thought their sincerity was never in question.

@garysixpack It seems to me that part of Josh’s argument is that their sincerity *is* in question. After all, as he points out, Hobby Lobby stands to save a lot of money by not having to paying for women’s health care; and they continue to make lots of money through their investments in the very products they are refusing to help subsidize. See link: http://www.cbsnews.com/news/antiabortion-company-hobby-lobby-invests-in-contraception-makers/

garysixpack (#4,263)

@Ester Bloom
Hobby Lobby closes on Sundays for Sabbath, right? I think they’ve foregone more revenue and profits in the name of their religion than this will ever make them.

deepomega (#22)

@Ester Bloom I haven’t heard anyone present evidence that they’re actually saving money by not paying for contraception? I mean, I’m sure they are, but relative to other line items it seems weird to suggest that they’re not religiously sincere.

garysixpack (#4,263)

@Ester Bloom
My last comment on this particular thing, I promise.

Per NYT, ‘“No one has disputed the sincerity of their religious beliefs,” Justice Alito wrote. The dissenters agreed.’

If both sides of the Justices agree, I think I’m on pretty firm ground that Lobby Hobby’s sincerity is unquestioned, despite what Josh or Ester might insinuate.

BTW, Lobby Hobby’s objection to contraceptives is very nuanced. NYT again, “The companies said they had no objection to some forms of contraception, including condoms, diaphragms, sponges, several kinds of birth control pills and sterilization surgery.” I’d be willing to be that Lobby Hobby’s investments are in the contraceptives they approve of (and are willing to insure their employees for).

@garysixpack Well, the very fact that we have to consider their religious sincerity points to what’s wrong with making the various benefits of the corporate form available to varying degrees based on something as personal as religion. When a corporation is defined as having the purpose of maximizing value for shareholders, there can, of course be some arguments (long-term value vs. short-term value; employee satisfaction and low turnover vs. maximum profit in a quarter; etc.), but the fundaments are agreed upon. But if Hobby Lobby is supposed to get a pass on generally applicable laws because of Christian beliefs, we quickly get into the weeds. You say their investments line up with their beliefs about which contraceptives are abortifacients. OK, but scientifically, they’re actually wrong about that. And sure, as I noted, they keep the sabbath. But they sell all the materials – and instructions! – for creating graven images. Do they invest in banks that generate income by charging interest? Many biblical scholars would say that’s a no-no. Do they forgive all their debts every seven years? You see where I’m going here? Maybe they are sincere, but religious sincerity is too amorphous for courts to enforce. Who wants nine justices interpreting not just laws but scripture? Imbuing corporate personhood with the kind of constitutional rights that heretofore were the exclusive province of flesh and blood humans gets courts and government more entangled with religion, not less. And here, the plaintiffs want all the benefits of government intervention, but when they see an angle to make more money, suddenly they want the hands-off approach. I would just as soon that no one ever had the opportunity to present evidence of corporate officers’ sins in a corporate governance case, but that is what Hobby Lobby’s approach invites.

garysixpack (#4,263)

@Josh Michtom@facebook
Josh, you argue like my 4-year old. “I could eat the spinach, but what if the spinach is poison, and I die!” Religion is non-scientific? And most religious people are selective about what religious laws they follow? Really? What if the spinach is poison?

BTW, I think many churches and newspapers are also incorporated. Do they also give up their Bill of Rights protections?

@garysixpack You graciously make my point for me. Hobby Lobby et al. want exemptions from laws of general application on the basis of declarations of religious beliefs that they swear are sincere. But how do we check? We cannot, because their beliefs are ipse dixits: “it is an abortifacient because we BELIEVE it is an abortifacient, science notwithstanding.” That is the argument of a four-year-old, but four-year-olds thankfully seldom create rules of law (although it sometimes feels like they do, in my experience).

When Hobby Lobby stops trying to make a profit, I’ll entertain arguments about how it should be entitled to the same legal structures as a church.

@garysixpack Ah, but their investments are in the exact products they disapprove of: IUDs and morning-after pills. “While the company has waged a fight against the Affordable Care Act’s coverage of birth control methods it opposes, its own 401k plan had more than $73 million invested in funds with stakes in companies producing intrauterine devices (IUDs) and emergency contraceptive pills, Mother Jones reports.”

r&rkd (#1,657)

What if one of HL’s owners opens up a store in his own name on Monday, so a sole proprietorship, and then denies coverage for IUDs? No problem then, I guess! And if he incorporates on Tuesday? Why should the result differ?

Along these lines, most of the objection I’ve seen to the ruling is really objection to the principles behind the RFRA.

@garysixpack On the contrary, the result would be different on Tuesday. Incorporation is not a natural right that must be available to all without caveat. It is a government benefit that protects people from debts and makes earning a profit a lot easier. Business people whose convictions are so strongly held that they cannot conform their practices to generally applicable law SHOULD NOT INCORPORATE.

garli (#4,150)

What would the supreme court say if a Muslim business officers wanted deny health insurance coverage of any treatment involving Heparin?

annev17 (#4,822)

@garli or, as Judge Ginsburg said in her dissent “Would the exemption…extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations[?]…Not much help there for the lower courts bound by today’s decision.”

garli (#4,150)

@annev17 Woah, I thought I got all of those examples from binge watching Grey’s Anatomy, but there’s a strong chance I read that quote somewhere yesterday. Way to plagiarize RGB brain.

LookUponMyWorks (#2,616)

I’m gonna incorporate myself and do whatever the heck I feel like.

@LookUponMyWorks Corporations are the new white male US Senators: http://fuckyeahparksandrec.tumblr.com/post/90160150785

j a y (#3,935)

You know when you’re a kid and something is so blatantly unjust that you start crying? Sigh, I’m that kid right now.

Using religious freedom law sophistry to limit others’ religious freedoms is ABSURD. Contraception violates your conscience? Don’t use it! Same sex marriage is anathema? Don’t do it! Preventing others from exercising THEIR beliefs makes your own freedoms vulnerable.

Sheesh. And I’m not even American.

boringbunny (#3,260)

Just to be clear – it’s a joke when you say that Hobby Lobby is insincere because you can make an idol out of their craft materials and their 401k funds some companies that make contraceptive materials that they oppose, right? home depot isn’t guilty of terrorism because it sells products that can be made into bombs. (also pretty sure you can worship anything – don’t need a hobby lobby to make something to worship). also, do you really want to be held accountable for every product of every company that your 401k mutual funds are invested in? do you want people to say, well you should have no problem giving money directly to monsanto because some of your 401k is invested in it (and there’s an excellent chance we are all invested in some terrible company through mutual funds). should corporations shun employee 401k’s for fear that some of the companies invested in are doing something we don’t agree with?

if anything, i’m truly impressed by how pious hobby lobby must be because i’m sure people have been going through these people’s whole lives with a fine-toothed comb and if they only came up with those as their strongest arguments, their lives are much cleaner than mine.

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