Civilization, Whither Art Thou

Hobby Lobby US Supreme Court Decision

In light of the recent decision of the US Supreme Court I am going to put a hold on the wage and benefits theme and take a look at what the decision means.  First, let's frame the issue.  Hobby Lobby sued the US government over requirements to provide insurance that provided access to contraceptives.  The case syllabus and opinions can be found here.  It seems at first to be a narrow case about corporate profits in the guise of religious freedom, but in the end it seems to be much more.  There is definitely a monetary aspect to the case.  All corporations do in fact stand to lose money if they either refuse to provide access to contraceptives or if they provide the insurance.  The only way to not lose money based on the Affordable (health) Care Act is to argue that they have the right now to provide the coverage.  Enter the Restoration of Religious Freedom Act of 1993, which you can read here, it's only 3 pages long.

The plaintiffs argue that as a closely held for-profit corporation they have the religious freedom to not be burdened by the government's laws unless there is a compelling reason for the burden.  A clause in the act also claims that even if there is a compelling reason to burden an individual or individuals the government shall not do so if there is a less restrictive "means to further that compelling government interest."  This translates to: if the government passes a law an individual is not required to follow it if interferes with their religious beliefs, unless there is a really good reason why they should be forced to comply and there isn't another less religiously restrictive way around the issue.  So in this case, Hobby Lobby is claiming that they are a family owned business, and that the Affordable Care Act burdens them by forcing them to do something they feel goes against their religious beliefs, which is to provide insurance to their employees which covers contraception.

What is interesting is that no one at Hobby Lobby is required by the law to actually use contraception, and furthermore Hobby Lobby can continue to speak out against contraception if they so choose.  Furthermore, the family that owns Hobby Lobby isn't forced to buy contraception.  The government is merely requiring the corporation to provide their employees with access to contraception (or access to it through insurance).  Furthermore, the claim by Hobby Lobby is that Hobby Lobby is a person.  In other words, even though the corporation is a for-profit business that operates in numerous states with over 500 locations nationwide and 13,000 employees they are claiming that Hobby Lobby is the family who owns the business; or even more drastic, they are claiming that a fictitious entity (Hobby Lobby) is a real person whose rights are being trampled upon.

This frames the case pretty well.  The US Supreme Court ruled in a split decision that Hobby Lobby was being burdened needlessly by the Affordable Care Act and their religious freedom was infringed upon.  The majority opinion, written by Justice Alito, stated that according to the Restoration of Religious Freedom Act the government did not have the authority to require a closely-held for-profit business such as Hobby Lobby to break with their religious beliefs, and that as such they did not have to comply with the Affordable Care Acts mandate that all for-profit businesses provide health-care that included access to contraception.  Alito also stated that there were other less restrictive means to reach the same goal, such as the government providing the contraceptives directly to the Hobby Lobby employees.  This is an interesting take on the Affordable Care Act and the Restoration of Religious Freedom Act.  Justice Ginsburg wrote the dissenting opinion and took Alito and Kenney (who wrote a concurring opinion) to bat on every issue.

What is interesting about this case is that the majority opinion and concurring opinions argue that individuals have the right to create their business in the image of their religious beliefs, unimpeded by the government.  What if the individuals who own Hobby Lobby become Christian Scientists?  They may claim that they do not believe in medicine at all and that providing any medical insurance to their employees violates their religious beliefs.  According to Justice Alito, the government could just provide health insurance directly the the Hobby Lobby employees and that would alleviate the restriction and burden placed on Hobby Lobby.  But that's the major issue at stake here.  In a society where one corporation such as Wal-Mart, owned by the a family, the Waltons, employs over 1% of working Americans, it is scary to think that the Walton family could dictate the healthcare benefits and who knows what else of those 3.3 million employees based on their religious beliefs.  

It is worth noting that Hobby Lobby was not the only company suing the U.S. government, Conestoga and Mardel were both also included in this case.  Now that the Supreme Court has released their opinion I wager that many corporations will sue the U.S. government saying that their religious liberty has been violated by forcing them to provide certain benefits to their employees.  In other words, a Pandora's box has been opened with this decision and anyone who owns a close-held for-profit business can now try and argue that based on their religious beliefs they shouldn't have to follow a law, even if that law doesn't directly affect their actions (i.e. it only affects their businesses profits).  Let me clarify that last clause of the last sentence.  Going back to the beginning of this blog post I said that the owners of Hobby Lobby didn't have to use contraception or even endorse contraception, they just had to provide insurance that covered contraception to their employees.  The government isn't forcing Hobby Lobby to do anything other than provide insurance, Hobby Lobby is saying they are being violated for, as Erwin Chemerinsky put it, "facilitating others" in acquiring contraceptives.

So where does it end.  In the Supreme Court Review of 2014 Mr. Chemerinsky asks this question: why couldn't a Jewish or Muslim corporation argue based on this decision that none of their wages can be used to buy pork?  It is a reasonable question in my eyes.  Hobby Lobby is claiming that the fact that they are facilitating others in acquiring contraceptives, and that contraceptives are against their religious beliefs, that their religious rights are infringed upon.  How is that different from providing wages that are then used for pornography, pork, shellfish, books by Richard Dawkins, or any other thing that may violate their beliefs.  They are still facilitating their employees by giving them monies in the form of wages, wages that are mandated by the U.S. Government. 

You may say, wait a minute, but there is a specific mandate in the Affordable Care Act requiring corporations to provide insurance that covers contraceptives, there is no mandate to require wages for pork or cheese-burgers.  That's true.  But while that is the case there is no mandate that employees purchase contraceptives, just as there is no mandate that requires employees to purchase bacon.  The simple fact is that the government said you have to provide the opportunity for your employees to acquire contraceptives, just as the employees have the opportunity to buy bacon; but again they don't have to.  If this all seems ridiculous, then good, it is.  This decision is ridiculous.  A corporation is a fictional entity.  Hobby Lobby is a made up thing that only exists on paper.  You can't have a conversation with Hobby Lobby, you can't have Hobby Lobby over for dinner, you can't ask Hobby Lobby out on a date.  But according to the new Supreme Court decision, Hobby Lobby can have its religious freedom infringed upon.  Again, just who in the hell is Hobby Lobby?  

But if you'll humor me, I want to explore the Cheeseburger Dilemma a bit more.  Here is my argument.  Hobby Lobby's major claim is that it is required by law to spend money in a manner which it finds violates its free exercise of religion.  So how could the government, after agreeing with Hobby Lobby, reprimand them if they fired an employee for buying alcohol, which it deems irreligious.  Hobby Lobby's money was spent on something it finds morally unconscionable, alcohol, and they removed the spender, the employee.  What if the employee was Jewish and the alcohol they bought was for a religious event of their own, say Sabbath dinner?  Who wins?  The corporation, according to Burwell v. Hobby Lobby,  has the right not to facilitate activities which it religiously objects to.  In this case, the drinking of alcohol.  But isn't that discrimination if they fire a Jewish individual for being Jewish?  Herein lies the Cheeseburger Dilemma.  

The US Government has laws set up to protect employees and individuals from discrimination.  But Hobby Lobby and now other corporations are saying they shouldn't have to facilitate behavior with their money (wages, profits, etc.) that violates their religious beliefs.  The question will become what happens when a corporation fires or hires individuals based on a religious basis?  In my opinion, in light of Burwell v. Hobby Lobby, the corporations should have the right to discriminate against individuals on the basis of religion.  This is arguably a slippery slope scenario, but in my eyes it is entirely plausible.

Due to these facts, I see no reason why every corporation in the country couldn't argue tomorrow that the Affordable Care Act violates its religious beliefs and they will no longer provide any health insurance to any of their employees, and they shouldn't be penalized for that.  They could all claim to be Christian Scientists, or at least they could all be striving to be Christian Scientists.  For as Justice Kennedy remarks, we all have the right to believe or "strive" to believe in a divine law.  Even if the Walton Family doesn't actually believe in Christian Science, whose to say they don't "strive" to believe in the divine law of Christian Science, and further that the Affordable Care Act infringes on their religious beliefs by requiring them to provide healthcare to their 3.3 million employees.  Food for thought.

If you would like to continue reading more, the previous article is called Follow-up on Hobby Lobby Post, the next article is called Wages and Benefits: Part 2.