-Dani Vilella, President, NOW GR
When major issues occur, I prefer to wait a day to write about them. I want to get a feel for the news coverage and the debate happening amongst people online. After reading the full ruling and dissent, scotusblog, umpteen articles from all sides of the issue, and following the online debates surrounding the Burwell v Hobby Lobby Case, there seem to be some prominent issues, misunderstandings and problems here. Before I delve in, here is a brief synopsis of the case:
On Monday, June 30, the United States Supreme Court (SCOTUS) issued a ruling on the Burwell v Hobby Lobby case. This case was a battle between the rights of women to receive contraceptive coverage granted in the Affordable Care Act (ACA) Contraceptive Mandate and the rights of employers to deny benefits to employees based their on religious beliefs.
In a 5-4 decision, (the five being all men) SCOTUS ruled in favor of Hobby Lobby (and Conestoga) and the implications could be far reaching. The ACLU of Michigan has provided a brief synopsis of the findings:
- The government should grant closely held for-profit corporations them the same accommodation it already provides nonprofit organization objectors.
- Closely held corporations cannot be required to provide contraception coverage to employees.
- Closely held corporations (not including publicly traded corporations) are “persons” for purposes of the Religious Freedom Restoration Act (RFRA).
Now that we have the gist, let’s talk about a few problems with this case. (All quotes by the court below are taken directly from the SCOTUS ruling. You can read the full text of the ruling, including the Dissent here.
The Contraceptive Problem 1: Denying the Science
The case was brought by Hobby Lobby because the Green Family, the owners, object to 4 methods of birth control covered by the ACA Contraceptive Mandate that they believe are abortifacients. The Supreme Court stated that, “the owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients.” (Ruling p 2)
The problem? These four contraceptives are NOT abortifacients. Abortifacients are medications that terminate pregnancy. The 4 methods that the Green Family objects to are Plan B and Ella (the two available forms of Emergency Contraception) and Mirena and ParaGuard (the two available forms of Intrauterine Device or IUD). These are birth control methods and do not function by preventing the implantation of a fertilized embryo but by preventing the fertilization from occurring to begin with.
The Court, in allowing the religious beliefs of the Green family to trump the science of how these methods, approved and regulated by the FDA, actually work is a dangerous step. Believing that medicine works a certain way does not make it true. A religious belief against abortion or taking birth control is fine, but to have the Court legitimize that, what you believe to be true regardless of the science behind the medicine is grounds for denial of access to that medicine, is absurd.
The Contraceptive Problem 2: Going Beyond the Scope
To those who are saying that this case only applies to 4 methods, you are wrong. Hobby Lobby’s owners stated that they have no religious objection to the other 16 forms of birth control methods covered in the ACA Contraceptive Mandate. I will set aside for the moment the odd fact that these devout Christians do not have “any problems” with all other forms of birth control and focus for a second on the irrelevancy of their opinion. The Court, not the owners, decided in this case, that regardless of the fact that the original premise of the case dealt only with the four aforementioned methods, ALL birth control was at issue in this case and their ruling states that “under the standard that RFRA prescribes, the HHS contraceptive mandate is unlawful. The contraceptive mandate, as applied to closely held corporations, violates RFRA” (Ruling p. 49). This strikes down the full contraceptive mandate for closely held, family owned corporations, and as such means that all birth control methods are subject to this decision. Family owned corporations will no longer be required to provide ANY birth control coverage to their employees if they believe that it violates the owner’s religious beliefs.
The “Benefits” Problem:
This case also raises an interesting question about the concept of “employee benefits” in this country. At what point does the compensation provided by my employer become mine. Benefits are not a freebie handed out to workers because of the generosity of their employers. They are part of the overall compensation package provided to employees – just like disability and wages. Compensation earned for work performed. When do they move from being the property of my employer to my property to do with as I choose? If my employer is able to decide what medical treatments I should have access to because it is “their” money that is paying for part of the insurance, why can’t they decide how I spend my wages? After all, if a Hobby Lobby employee were to get an abortion and pay for it with money earned at their job, isn’t that still the “owner’s money” going to pay for a medical procedure that is contrary to their religious beliefs? It may sound ridiculous, but I think this case begs the question.
The Two “Corporation” Problems:
Many of the articles and arguments happening online are focused around the issue that this ruling will apply only to small, family owned companies. While the Court only recognized the specific rights of these closely held, family owned corporations, this is a slippery slope. As Justice Ginsburg, in her Dissent, states: “The Court’s determination that RFRA extends to for-profit corporations is bound to have untoward effects. Although the Court attempts to cabin its language to closely held corporations, its logic extends to corporations of any size, public or private” (Dissent p 19).
Some commenters and journalists are even claiming that family owned companies are not “really” corporations. I do not know where the idea that a company owned by a family is not a corporation has come from but please read the definition of a corporation:
“Definition of ‘Corporation’
A legal entity that is separate and distinct from its owners. Corporations enjoy most of the rights and responsibilities that an individual possesses; that is, a corporation has the right to enter into contracts, loan and borrow money, sue and be sued, hire employees, own assets and pay taxes.
The most important aspect of a corporation is limited liability. That is, shareholders have the right to participate in the profits, through dividends and/or the appreciation of stock, but are not held personally liable for the company’s debts.” -Investopedia
This definition (and many many others like it….google it) brings up the second part of the Corporation Problem with this case. The reason that people incorporate companies is to create a distinct and separate boundary between themselves as individuals and the company that they own. People incorporate their companies in order to create a separation between themselves and the company – both financially and legally.
Throughout the SCOTUS ruling, the lines between the owners’ entities and the entity of the corporation are convoluted – with the language going back and forth between the two. It may seem logical that a company is an extension of its owners, but our laws say that this is not so. In order for this ruling to stand, the Supreme Court had to declare that corporations are people in regard to religious freedom. So, what are the qualifications for said corporations to be “religious”? Does the company attend religious services? Does it need to have a certain percentage of its profits go toward tithing? Must it clients be made aware of its religious beliefs when utilizing its services? What are the standards for a “religious” corporation?
The Ethical Problem:
It is also interesting to me that the definition of a corporation limits the financial liability of the owners but apparently does not limit the moral liability of the owners as the SCOTUS briefing examines: “The beliefs of the…Greens implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is immoral for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.” (Ruling p5).
I will ignore, for the moment, the incredibly biased and inflammatory assumptions made by that statement, and focus instead on the fact that corporate law recognizes the limited legal liability of owners in regard to the consequences of actions taken by their corporations (please remember the banking fiascos of the last few years) but this Court seems to believe that limited liability does not apply in cases of sin by association – namely that if I give you access to something that you choose to use to commit a sin, I am as guilty as you are and since my religious beliefs forbid that sin, I am exempt from having to give you the option at all.
The Court is correct in its assertion that this is a “difficult and important question,” but incorrect in its assertion that the court has a role in determining the answer.
The Problem of Unintended Consequences:
In light of the recent impacts we have seen in the political arena based on the last case where the Supreme Court decided that corporations are people (Citizens United 2010) and the fact that the job of the Supreme Court is to establish legal precedent that often has far reaching consequences well beyond the scope of the original court case, I have some questions about this ruling.
SCOTUS limited the scope of this ruling to cover only birth control benefits. Why? Why is birth control special in regard to religious beliefs? How does the Supreme Court think that they can provide special exemption for providing contraceptive coverage but not exemptions for other religiously controversial benefits? For example, Scientologists refute the use of antidepressants. If I were a Scientologist who owned a company, do I now have the right to deny my employees insurance coverage for their Zoloft or Wellbutrin? If not, why not? Why is that religious belief not as significant as a ban on birth control? And if so…then where does it end? As Justice Ginsburg stated in her scathing dissent of this ruling,
“Hobby Lobby and Conestoga surely do not stand alone as commercial enterprises seeking exemptions from generally applicable laws on the basis of their religious beliefs. See, e.g., Newman v. Piggie Park Enterprises, Inc., 256 F. Supp. 941, 945 (SC 1966) (owner of restaurant chain refused to serve black patrons based on his religious beliefs opposing racial integration), aff ’d in relevant part and rev’d in part on other grounds, 377 F. 2d 433 (CA4 1967), aff ’d and modified on other grounds, 390 U. S. 400 (1968); In re Minnesota ex rel. McClure,370 N. W. 2d 844, 847 (Minn.1985) (born-again Christians who owned closely held, for-profit health clubs believed that the Bible proscribed hiring or retaining an “individua[l] living with but not married to a person of the opposite sex,” “a young, single woman working without her father’s consent or a married woman working without her husband’s consent,” and any person “antagonistic to the Bible,” including “fornicators and homosexuals” (internal quotation marks omitted)), appeal dismissed, 478 U. S. 1015 (1986); Elane Photography, LLC v. Willock, 2013–NMSC–040, ___ N. M. ___, 309 P. 3d 53 (for-profit photography business owned by a husband and wife refused to photograph a lesbian couple’s commitment ceremony based on the religious beliefs of the company’s owners), cert. denied, 572 U. S. ___ (2014).
Would RFRA require exemptions in cases of this ilk? And if not, how does the Court divine which religious beliefs are worthy of accommodation, and which are not? Isn’t the Court disarmed from making such a judgment given its recognition that “courts must not presume to determine . . . the plausibility of a religious claim”? Ante, at 37. Would the exemption the Court holds RFRA demands for employers with religiously grounded objections to the use of certain contraceptives 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 (Christian Scientists, among others)?31 According to counsel for Hobby Lobby “each one of these cases . . . would have to be evaluated on its own . . . apply[ing] the compelling interest-least restrictive alternative test.” Tr. of Oral Arg. 6. Not much help there for the lower courts bound by today’s decision.” (Dissent p. 32-34 – italics mine)
And Finally…The Religious Freedom Problem – RFRA and its Application:
The Court decided, out of all of the different levels of consideration in this case, that ruling would fall in favor of Hobby Lobby (and Conestoga) based on their interpretation of the Religious Freedom Restoration Act (an assertion vehemently disputed by the Dissent).
Let’s take a moment to examine the Religious Freedom Restoration Act of 1993. We will set aside the title of this legislation which implies that Religious Freedom was apparently lost at some point prior to 1993 and needed to be restored. The Act itself was intended to go further than the Free Exercise Clause of the First Amendment by claiming that “laws ‘neutral’ toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise” (Read the Full Bill Here. It’s short – go on, take a look). The law goes on to state that government may not burden a person’s religious beliefs unless there is a compelling government interest and then must do so in the least restrictive way. In 1997 SCOTUS ruled this Act unconstitutional at the State Level and since then it has applied only to federal legislation. In the three years between the passage of the law and the 1997 decision, 337 court cases were filed based on the RFRA ranging from land use to the religious rejection of social security numbers because they are the “mark of the beast” from the bible. To say that this Act has had a significant effect on our understanding of law and religion in this country would be an understatement and now the Supreme Court has ruled that, not only do people have rights under the RFRA, but incorporated entities do too.
According to Justice Ginsburg,
“Until this litigation, no decision of this Court recognized a for-profit corporation’s qualification for a religious exemption from a generally applicable law, whether under the Free Exercise Clause or RFRA.13 The absence of such precedent is just what one would expect, for the exercise of religion is characteristic of natural persons, not artificial legal entities. As Chief Justice Marshall observed nearly two centuries ago, a corporation is “an artificial being, invisible, intangible, and existing only in contemplation of law.” Corporations, Justice Stevens more recently reminded, “have no consciences, no beliefs, no feelings, no thoughts, no desires.” Citizens United v. Federal Election Comm’n, 558 U. S. 310, 466 (2010) (opinion concurring in part and dissenting in part)” (Dissent, p. 13-14 – italics mine)…Indeed, until today, religious exemptions had never been extended to any entity operating in “the commercial, profit-making world.” Amos, 483 U.S., at 337.16 The reason why is hardly obscure. Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community. Indeed, by law, no religion-based criterion can restrict the work force of for-profit corporations” (Dissent p. 15-16 – italics mine).
I think it is obvious from the problems listed above that I do not think that this case is about birth control at all. Yes, it is another blow to women and their rights to reproductive freedom and choice in this country. Yes, it is discrimination against women in the workplace. Yes, we should be outraged. But…the issues raised in Burwell v Hobby Lobby go far beyond the issue of whether or not your employer should have a say in your medical decisions (they should not!).
This case is far more important because it raises the issue of how we have come to view the idea of religious freedom and the separation of church and state in the US. It is important because it is another example of bigotry and control thinly veiled beneath the guise of religion. It is important because the Supreme Court stated that science doesn’t matter, fact doesn’t matter, our understanding of for-profit versus non-profit doesn’t matter. What matters, as of June 30, 2014 is the “sincerity” of a corporate owner’s religious beliefs, the fact that they view their work as god’s work, the fact that they feel that medicine works in a particular (and incorrect) way and that their beliefs give them the right to discriminate against and penalize people who work to earn them money.
The religious right is correct in their assertion that religious freedom is being eroded in this country. They are, however, wrong about how that is happening. When my for-profit employer is allowed to determine my medical care based on the belief that my medicine violates their religious views, and that trumps my rights to engage in medical practices that may comply with my religious views (or lack thereof), I would say that freedom of religion is more than eroded. Its singing its swan song.
This is a complicated case, sure to have far reaching implications and it will be interesting to watch the consequences of this decision play out over the next few years. This article barely scratches the surface of this issue and smarter minds than mine will seek to study and analyze it in the future. What is important to remember here is that this decision will have real consequences for thousands, if not tens of thousands of women and their families and that it sets a dangerous precedent that opens the path for further discrimination and progressive rationalization down the road.
Suggested Further Reading:
Please take a moment to read Justice Ginsburg’s Dissent (begins on page 60) It is WELL worth the read!
Court rules in favor of for-profit corporations, but how broadly? In Plain English
Wider impact of Hobby Lobby ruling?
5 myths about the Hobby Lobby case, debunked