The real fight over the Hobby Lobby case

posted at 9:01 am on November 29, 2013 by Jazz Shaw

Now that the Supreme Court has agreed to take on the Hobby Lobby case (though they may still duck out of the biggest questions) it seems as if interested parties on both sides are rushing to define what it all means before the first word of the eventual decision is written. As with many such high profile cases, this really has very little to do with the published corporate policies of one particular employer and what will show up in their workers’ benefits handbook next year. This is a case which, if a full, unambiguous decision is rendered, will be dredged up as precedent for years to come in cases across the nation. But we can’t seem to agree on what it is that’s being decided.

For a very liberal reading of the “deeper meaning” of it all, the New York Times helpfully provides the opinion of Linda Greenhouse. As you might guess, I think this misses the point by about as large a margin as one could imagine.

The religious-based challenges that have flooded the federal courts from coast to coast – more than 70 of them, of which the Supreme Court agreed on Tuesday to hear two – aren’t about the day-in, day-out stuff of jurisprudence under the First Amendment’s Free Exercise Clause: Sabbath observance, employment rights, tax exemptions. They are about sex.

As such, the cases open a new front in an old war. I don’t mean the overblown “war on religion” that some Catholic leaders have accused the Obama administration of waging. Nor do I mean the “war on women” that was such an effective charge last year against a bevy of egregiously foot-in-mouth Republican politicians.

I mean that this is the culture war redux – a war not on religion or on women but on modernity.

All culture wars are that, of course: the old culture in a goal-line stance against a new way of organizing society, a new culture struggling to be born. Usually, that’s pretty obvious. This time, somehow, it seems less so, maybe because the battle is being fought in the complex language of law, namely a 20-year-old law called the Religious Freedom Restoration Act.

In her essay, Greenhouse seeks to quickly poo poo the idea that this is part of some grand War on Women or War on Religion, and then goes on to proclaim it to be exactly that, only in different words. But all of this seems to miss the mark.

Ed normally tackles the religious liberties side of these cases here, but the Hobby Lobby question seems to go much deeper than that. While it’s become somewhat toxic to keep invoking the Citizens United decision, one part of this case really does go back to the question of whether or not corporations are “people.” My consistent answer to that question is to say poppycock. A corporation is a stack of legal documents, buildings, property and equipment. But it’s equally true that the leadership of a corporation is most assuredly comprised of people (or one person in the case of some small businesses) who must make decisions and then live with the results, both in terms of the fortunes of their company and the peace of their souls.

Should the government be able to force a business owner to conduct their affairs in a way which doesn’t comport with their beliefs – religious or otherwise – with the only other option being to not engage in business? There may be exceptions to the rule, particularly when it comes to minimum safety standards, but it would seem that the default answer would be no. This is particularly true when we’re discussing offering a “benefit” to employees which is readily obtainable elsewhere.

But this leads us to what I think should be the real debate at the heart of this case. The question I would like to hear the SCOTUS justices ask the participants in this case is as follows: “Do you believe that the government has the power to tell employers how many days of paid vacation they have to offer their employees?

Employers offer a collection of things to prospective applicants for job openings which the HR department collectively refers to as a compensation package. This goes far beyond the wages offered, covering items such as vacation, sick time, casual Fridays, employer contributions to 401K plans and, yes, health care options. Different companies offer different packages, and as you would expect, those who offer the best collection of benefits will attract the most and the best applicants. The employer must balance the costs of all this against their bottom line.

Conversely, an employer who offers virtually nothing but the bare minimum wage will attract only those who can’t find a position anywhere else. They may show up for work most of the time, but they will hardly be motivated to excel and further the company’s goals, generally keeping an eye on the clock and the door, hoping for a chance to bolt to a better situation. Such a company is unlikely to do well. It’s the invisible hand of the market at work yet again. So the real question I’m asking is not if the employer has the religious freedom to single out certain items of health care which they will or will not offer, but rather if they have the freedom to decide which – if any – benefits they offer the employee of any kind and to live with the consequences of those decisions. If the Hobby Lobby case actually settles anything, I’d hope it would be that question rather than the religious liberty debate which dominates the headlines.


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Interestingly, if the Court rules for the employers, that application of the RFRA may itself violate the Establishment clause.
 
righty45 on November 29, 2013 at 6:35 PM

 
And a meddling federal government was the catalyst. You’re right. That is interesting.
 
rogerb on November 29, 2013 at 7:33 PM

 
The government is going to be the catalyst for any Establishment clause violation, because by its terms the clause only reaches state action. So that actually may be the least interesting thing about the argument.
 
righty45 on November 29, 2013 at 10:31 PM

 
Ah, I see where our connection was missed, and yes, you make a good point. I guess it comes back to perspective. I’m more of an individual freedom supporter and less of the pro-massive-federal-government-using-force-to-dictate-minutiae-like-birth-control-for-males-at-the-individual-level advocate, so I was focused more on the part where thoughtful people note how a limited federal government wouldn’t have a single party prompting the chain of events that forced an employer to action and the subsequent courts to reach the “violation of the Establishment clause” points.
 
That was what was interesting.
 
But, realizing the difference in how we view our equals betters, I now agree with you 100% regarding your position. Noting how this is ultimately the president’s/(D)’s/fed’s fault that every single bit of this is occurring is probably not particularly interesting when viewed through a pro-force, pro-control window.

rogerb on November 30, 2013 at 7:49 AM

Two problems with her argument:
First, can you name a corporation, a functioning, operating company that takes in money in exchange for goods or services, pays taxes or submits a tax return showing it owes none, and has no people as employees, officers, owners, or shareholders; that is, has no people involved in it’s operation? Corporations are composed of people who have rights. What is really being argued here is requiring some people in a company to give up their rights to do things in a way someone else doesn’t like under the cover of “being a corporation.” This is a fundamental attack on an individual’s constitutional rights because he or she is part of a corporation.

Second, Greenhouse is trying to limit religion to a meeting on your religion’s holy day, and nothing more. It is an effort to suppress the fact that our religions require a way of living, and affect all aspects. In other words, it’s an attempt to, in the eyes of the law, compartmentalize religious faith into a meeting on one’s holy day and require conformance to the whims of the law at all other times. Somehow, when whatever you do is allowed or required by the law, it isn’t a sin. Which it often really is.

A. C. on November 30, 2013 at 12:53 PM

This is a fundamental attack on an individual’s constitutional rights because he or she is part of a corporation.

This is a key point that Citizens United addressed in it’s, to the progressive fascists, unpopular decision that said that Corporations ‘have rights’ like the individuals which comprise the corporations ownership structure. The left wants corporations to be defined as a separate entity subject to the authoritarian demands and regulations of the government as their next major step to establish government control of the marketplaces to ensure their definitions of ‘fairness’ and ‘social justice’ are enacted.

Jazz asks exactly the right question in his closing paragraph – where the issue goes beyond even the religious freedom aspect. The question goes far beyond the establishment clause or if corporations are entities that should be addressed differently than individuals.

Either we have liberty and freedom as our cornerstones or we have subservience to the government diktat and fiats.

Athos on November 30, 2013 at 1:07 PM

Ah, I see where our connection was missed, and yes, you make a good point. I guess it comes back to perspective. I’m more of an individual freedom supporter and less of the pro-massive-federal-government-using-force-to-dictate-minutiae-like-birth-control-for-males-at-the-individual-level advocate, so I was focused more on the part where thoughtful people note how a limited federal government wouldn’t have a single party prompting the chain of events that forced an employer to action and the subsequent courts to reach the “violation of the Establishment clause” points.

That was what was interesting.

But, realizing the difference in how we view our equals betters, I now agree with you 100% regarding your position. Noting how this is ultimately the president’s/(D)’s/fed’s fault that every single bit of this is occurring is probably not particularly interesting when viewed through a pro-force, pro-control window.

rogerb on November 30, 2013 at 7:49 AM

Erm…yeah.

I think we may have discussed this before, but if you don’t know anything about a topic being discussed, could you please at least refrain from writing lengthy, babbling posts about it that clutter the page? Thanks.

righty45 on November 30, 2013 at 1:54 PM

✔ rogerb

Murphy9 on November 30, 2013 at 1:58 PM

…That is interesting.
 
rogerb on November 29, 2013 at 7:33 PM

 

…So that actually may be the least interesting thing about the argument.
 
righty45 on November 29, 2013 at 10:31 PM

 
…is probably not particularly interesting when viewed through a pro-force, pro-control window.
 
rogerb on November 30, 2013 at 7:49 AM

 
I think we may have discussed this before, but if you don’t know anything about a topic being discussed, could you please at least refrain from writing lengthy, babbling posts about it that clutter the page? Thanks.
 
righty45 on November 30, 2013 at 1:54 PM

 
Have you ever met anyone who enjoys live music, righty45?
 
Some people find a specific instrument interesting. Others how a piece is performed. Others the conductor. Still others find the overall experience the interesting bit.
 
Have you caught on yet?
 

…when viewed through a pro-force, pro-control window.
 
rogerb on November 30, 2013 at 7:49 AM

 
Nicely done and thanks for your help.

rogerb on November 30, 2013 at 8:33 PM

I’m asking is not if the employer has the religious freedom to single out certain items of health care which they will or will not offer, but rather if they have the freedom to decide which – if any – benefits they offer the employee of any kind and to live with the consequences of those decisions. If the Hobby Lobby case actually settles anything, I’d hope it would be that question rather than the religious liberty debate which dominates the headlines.

Jazz,

If you are waiting for the Supreme Court to overturn child labor laws, I suggest you best not hold your breath.

Freddy on December 1, 2013 at 1:06 AM

The question I would like to hear the SCOTUS justices ask the participants in this case is as follows: “Do you believe that the government has the power to tell employers how many days of paid vacation they have to offer their employees?”

And, of course, the knee-jerk liberal response would be “Well, of course!”

Several countries mandate that already, and the left would love to have it here as well.

Paul_in_NJ on December 1, 2013 at 11:20 AM

Two points here:

One: A corporation is not just a stack of legal papers. It is a group of people working together in free association. I think association is covered in one of the amendments.

Two: If one is taking birth control then the sex involved is just recreational. I think it is insane to make all of us pay for a person’s sport of choice. Does the ACA pay for safety equipment in any other sport? It is doubly insane to ask the rest of us to pay you monthly to make a part of your body stop working correctly simply because buying a rubber is too much to trouble.

Par for the course the direction the left wants to drag us in though.

Dawnsblood on December 1, 2013 at 10:42 PM

2) I find it hard to believe that forcing an employee to obtain contraception through alternate means (including via supplemental insurance or out-of-pocket expenditure) would constitute a “substantial burden” on that employee.

blammm on November 29, 2013 at 8:56 PM

I don’t. The contraceptive mandate itself is premised on the notion that failing to provide contraceptive coverage imposes significant costs on employees. If the government considered it a substantial enough burden to warrant passing the law, I don’t see why they can argue it’s not a substantial enough burden to implicate concerns under the Establishment clause.

That said, I think there are plenty of valid objections to Schwartzman’s theory (one of which is that it seems like it would likely result in many, if not most applications of the RFRA being invalid). Still, I think it’s a serious argument and I hope it’s litigated somewhere, somehow.

righty45 on November 29, 2013 at 10:28 PM

You have an extraordinarily weak argument here. To see why, let’s go back to the article you linked:

In a line of cases going back decades, the Supreme Court has held that the government may not grant religious exemptions when doing so would impose significant burdens on third parties who are not beneficiaries of the religious accommodation

The question is, what constitutes a “significant burden.” Now, if insurance benefits were actually free, then you might have a case that employees were being burdened to give Hobby Lobby its religious exemption. But the fact of the matter is that insurance benefits are paid by the premiums of the insured. Forcing Hobby Lobby to buy insurance plans that include abortion — this case is about abortion, not contraceptives — might relieve those employees of paying the cost directly, but it only does so by forcing ALL Hobby Lobby employees to pay more money to the insurance company to pay for those insurance benefits.

In short, Hobby Lobby gains no financial benefit from leaving abortion out of the compensation package. None. If they included the abortion coverage in insurance, the price of the abortion insurance would still be borne by the employees, not Hobby Lobby.

I suspect the whole Establishment Clause argument is an excuse to argue that having religious freedom requires us to lose religious freedom.

But it is useful as a preview to the kind of argument that will almost certainly be used to justify the loss of religious freedom in the future. The state will assert that they can’t allow anybody to have X religious principle if they can concoct any theory in which one group of people is disadvantaged in some sense — and not necessarily monetarily. The justification will be a combination argument of Establishment Clause and Equal Protection.

Hobby Lobby does not burden its employees in the

There Goes the Neighborhood on December 2, 2013 at 3:18 PM

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