Today, the Supreme Court issued its decision in the Hobby Lobby case (Burwell v. Hobby Lobby Stores, Inc.), siding with Hobby Lobby. It was a 5-4 decision, with Justice Alito writing the opinion (Justice Kennedy, who joined the majority, also wrote a concurring opinion). The Court’s decision, holding that the HHS Mandate violates Hobby Lobby’s religious freedom, has already been seriously misunderstood. So let’s set the record straight on four major issues:
|Justice Antonin Scalia|
No: something nearer the opposite, really. This whole case involves a law called the Religious Freedom Restoration Act (RFRA), a law that exists because of a controversial 1990 Supreme Court case called Employment Division v. Smith.
Here’s what happened: Alfred Smith and Galen Black worked at a rehab clinic, but were fired for using peyote, and denied unemployment benefits. They sued, claiming that they were using peyote for religious reasons, because they were members of the Native American Church. In a 5-4 decision authored by Justice Scalia, the Court held that a facially-neutral law could be applied across the board, even if it had the effect of hindering religious rituals.
The case was explosive. In his dissent from Smith, Justice Blackmun noted that the “respondents’ use of peyote seems closely analogous to the sacramental use of wine by the Roman Catholic Church.” Thus, the Smith decision seemed like it might allow the government to pass facially-neutral laws (like prohibiting peyote or wine) that effectively outlawed a particular religion.
Unsurprisingly, both conservatives and liberals were startled by Smith. Rep. Charles Schumer (D-NY) and 170 co-sponsors (122 Democrats, 47 Republicans, and an Independent) introduced RFRA. It quickly passed 435-0 in the House and 97-3 in the Senate. As the Court noted in its decision today, RFRA “prohibits the Federal Government from taking any action that substantially burdens the exercise of religion unless that action constitutes the least restrictive means of serving a compelling government interest.”
That’s the whole point of the law: to make it harder for a federal law to trample the exercise of religion, without a compelling government interest. In other words, Congress was concerned that Scalia and the other conservatives on the Supreme Court didn’t take a broad enough view of religious freedom. Which is probably the opposite of what you’ve heard.
No. While there are plenty of parties suing who are against contraception, Hobby Lobby isn’t amongst them. Their objection was just to paying for abortions.
Four of the twenty drugs involved in this case are believed, not just to prevent conception (which would make them contraceptive, as the name implies), but to prevent the implantation of an embryo into the uterine wall. Interfering with the natural development of an embryo in order to bring about its death is an abortion.
At the heart of this, there’s a semantic debate over when pregnancy begins, because two definitions are used. Some obstetricians use an early definition: pregnancy begins once the sperm fertilizes the egg, resulted in an embryo (an organism genetically distinct from both its parents). Other obstetricians use a late definition: that pregnancy doesn’t begin until the fertilized egg implants into the uterine wall.
Of these, the early definition is better. Imagine that, one day, scientists are able to fuse sperm and egg in a laboratory setting, and bring the child full term in an artificial womb (or some other laboratory conditions). According to the late definition, we would have to conclude that this person was never conceived. That’s an absurd result, easily avoided by holding to the early definition.
But regardless of the semantic debate, the fact remains: even amongst those people who are fine with contraception, many still disagree with killing a fertilized embryo (or being forced to pay for others to do so). The owners of Hobby Lobby are just such people. As the Court noted in today’s opinion:
The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients. If the owners comply with the HHS mandate, they believe they will be facilitating abortions, and if they do not comply, they will pay a very heavy price—as much as $1.3 million per day, or about $475 million per year, in the case of one of the companies. If these consequences do not amount to a substantial burden, it is hard to see what would.
|A typical political cartoon illustrating ignorance of 1 U.S.C. §1,
or the way corporate law works.
Rick Ungar at Forbes responded to the Hobby Lobby decision by writing an article entitled “Founding Fathers Spinning In Their Graves As SCOTUS Rules That Corporations Are People Too.” This is a surprisingly frequent allegation, given how hilariously wrong it is.
Do you know who decided that corporations are people, too? Congress. To see that, you don’t need to read any further than 1 U.S.C. §1, the very first law on the books. It reads: “In determining the meaning of any Act of Congress, unless the context indicates otherwise […] the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.”
And guess what? That’s the whole point of a corporation. They enter into contracts, as if they’re people. They’re allowed to own property, as if they’re people. They have to pay income tax, as if they’re people. If you got rid of these rights and duties, you would be eliminating the entire purpose of corporations existing, which is why no one who understands corporate law seriously proposes changing this part of 1 U.S.C. §1.
But having said that, corporations aren’t really people, and there are some rights that they don’t enjoy (for example, the right to vote). So the task of the Supreme Court was to figure out whether the religious freedom protections of RFRA is one of those rights. In today’s decision, they determined that it was, at least for a closely-held corporation (that is, a corporation in which 5 or fewer people control a majority of the shares).
No, which is why the panicky reactions of Ungar, et al, are so surreal. The HHS admitted that a nonprofit corporation can be a “person” under RFRA. But the HHS’ position was that a nonprofit corporation could exercise religion, but that a for-profit corporation couldn’t. So if you’re a Christian non-profit, you can exercise religion, but if you’re a for-profit Christian bookstore, you can’t.
As the Supreme Court noted, such a distinction makes no sense. That position also would make it very hard for activist corporations to exist: the HHS’ position amounts to saying that for-profit corporations can only exist for the sake of profit. The Court noted that:
This argument flies in the face of modern corporate law. […] While it is certainly true that a central objective of for profit corporations is to make money, modern corporate law does not require for-profit corporations to pursue profit at the expense of everything else, and many do not do so. For-profit corporations, with ownership approval, support a wide variety of charitable causes, and it is not at all uncommon for such corporations to further humanitarian and other altruistic objectives. Many examples come readily to mind. So long as its owners agree, a for-profit corporation may take costly pollution-control and energy conservation measures that go beyond what the law requires. A for-profit corporation that operates facilities in other countries may exceed the requirements of local law regarding working conditions and benefits. If for-profit corporations may pursue such worthy objectives, there is no apparent reason why they may not further religious objectives as well. […]
Not all corporations that decline to organize as nonprofits do so in order to maximize profit. For example, organizations with religious and charitable aims might organize as for-profit corporations because of the potential advantages of that corporate form, such as the freedom to participate in lobbying for legislation or campaigning for political candidates who promote their religious or charitable goals.
As an example of such a for-profit corporation, the Court pointed to Google.org, which ““advance[s] its charitable goals” while operating as a for-profit corporation to be able to“invest in for-profit endeavors, lobby for policies that support its philanthropic goals, and tap Google’s innovative technology and workforce.”” So it’s not just religious organizations that the HHS’ position would have undermined, but all manner of socially-conscious companies. The government was prepared to undermine all for-profit corporations’ ability to be socially conscious, just because they happened to dislike the particular kind of social activism that Hobby Lobby engaged in.
So regardless of your views on contraception or abortion, if you’re a person who wants for-profit corporations to be able to act ethically – to be able to concern themselves with something more than fattening their shareholders’ wallets – today’s decision is a very good thing.