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.