Monday, June 30, 2014

4 Things You Probably Have Wrong About the Hobby Lobby Decision

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:

1. Is This Case About Scalia and Other Court Conservatives Imposing Their Religion?

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.

2. Isn't this Case just About Contraception?

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.
3. Did the Supreme Court Just Declare That Corporations are People?

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).

4. Did Either Side Deny that Corporations are People Under RFRA?

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.

29 comments:

  1. Great article, Joe! (There's some kind of a typo, however, at the end of paragraph 3.)

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  2. Thank you. I learn so much here.

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  3. Awesome! And the typo was an issue. I'm not sure exactly what the sentence is supposed to say...

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  4. Corporations can act ethically without violating the First Amendment, which stands mute in this article and decision by the SCOTUS.

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    1. The First Amendment inctgis case is not directly at issue, but the interpretation of RFRA, which provides more protections than thw Constitutiob requires.

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  5. 5. It doesn't prevent anyone from getting any kind of contraception coverage. I don't know why this simple point keeps getting missed.

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    1. Because the reality doesn't foment outrage.

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  6. This comment has been removed by the author.

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    1. Well, then it turns out there were two human beings conceived instead of just one. The relevant moral distinction to be made is between no human being present and a human being present.

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    2. The question of individuation of identical ("monozygotic") twins is a fascinating one. The best argument is that one of the two twins is present from conception, and the second is basically "conceived" asexually, through the zygote dividing. Admittedly, that's an odd answer (we're certainly not used to thinking of one twin as being the asexually-produced offspring of the other), but twinning itself is odd,* and for my money, it's the most satisfying explanation.

      Morally speaking, the question is moot: whether there is one human being or two prior to the zygote splitting, it's still immoral to kill them.

      I.X.,

      Joe

      *The later in the pregnancy the zygote splits, the less complete the split is: in the latest cases, the two twins aren't even completely separated physically, which is how we get conjoined or "Siamese" twins.

      But that example shows that they can share the same physical space while being completely distinct people metaphysically. (Even the most adamant materialist can't seriously claim that conjoined twins are the same person, simply because they share body parts).

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  7. Great article. Small correction. The plural of the technical term 'legal person' is 'legal persons' and not 'people'. Corporations are not 'people', but they are 'persons' in the legal sense of being legal entities: subjects of rights, duties, legal actions.

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  8. Too much sense and logic here! NOT conducive to my favored hysteria! What, do you want us all to "Keep calm and get on with living"?

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  9. This article really helped sum up everything for me. Thank you!

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  10. I'd like to thank Chuck Schumer, Nancy Pelosi, Harry Reid, Bill Clinton, and all Congressional Democrats who provided the legal refuge under which Hobby Lobby's freedom of religion was protected.

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  11. Thanks, Joe, this was for the most part helpful.

    The bit that has me scratching my head is #2. I can't for the life of me see how the second view, (holding that pregnancy begins with implantation) would require the conclusion that the lab-produced human being had never been conceived. After all, your example begins with the description of a conception, the lab techs joining sperm and egg. What am I not getting?

    I went to your link, hoping for clarity, and learned that of 96 ObGyns surveyed, 48 thought pregnancy began with conception, and 46 thought it began with implantation. (disturbingly, 23 of them thought conception was synonymous with implantation. Who were those guys? Or was it a badly conducted survey?) Anyway, a nearly even split in opinion.

    The first view does have some common-sense appeal; “If there’s a zygote inside her, she’s pregnant.” Simple and straightforward. But the second view preserves some distinctions that we might want to maintain. Gestation, the period in which a developing fetus is receiving its sustenance directly from the mother, begins with implantation. On that, I imagine, there is wider agreement. (Unless we want to say that I am already having dinner, while I am still on my way to the diner? Even if I get lost, and perish from hunger?) If pregnancy is understood to begin with implantation, we preserve a world where gestation and pregnancy refer to the same developmental period , gestation referring to the process from the fetal perspective, pregnancy from that of the mother.

    Also, under the first definition, a woman appears to have no way of knowing how many times she has been pregnant in the course of her life, due to the frequency of conceptions which fail, quite naturally, to implant. An understanding of “pregnancy” that leads us here is perhaps not so useful, medically or personally. It seems like one thing to be in the dark about how many times one has conceived, but to have no way of knowing how many times one has been pregnant? Weird.

    I don’t see what we gain by these contortions. Having made the case that it is wrong to kill an embryo at any stage after conception, what does it matter if it’s implanted or not? Why do we feel the need to call the woman pregnant, even if there has been no implantation? I can’t quite see why we are to prefer the first definition.

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  12. One small correction: 1 U.S.C. §1 is NOT the first law on the books. It just has prime position at the beginning of the nicely organized and categorized system of laws. If you look at the notes at the nicely-provided link, this law was passed in 1947.

    AFAIK, the first corporations in the USA were formed in the late 1800's.

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    1. Right. When I said, "you don't need to read any further than 1 U.S.C. §1, the very first law on the books," I wasn't trying to say that it was the earliest law passed, but that it's the first law in the books. If you were to begin reading the U.S. Code, it'd be the first one you came to.

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  13. You fundamentally misunderstand the, meaning of both the constitution and I believe the RFRA where they serve to protect religious freedoms. You imagine that they are there to protect you whereas they actually exist to protect the rest of us from groups like you. Groups who assertively expect others to fall in line with their religious beliefs.

    The whole premise of religious freedom is the freedom from coercion to act against conscience and belief. No one is coercing you (meaning collectively Catholics and other supporters of this legislation) to have abortions or take birth control. You're free to refuse them at anytime according to your belief. You however are coercing others who do not share your beliefs from exercising their legal right to abortion and birth control. Others who may be of religions who do not recognize the Pope or his edicts, be they Protestants, Jews, Hindus, Muslims, New Agers or atheists. We (as I am one of the above) who do not agree with the Pope choose to make our own decisions according to our beliefs.

    You have no right under the constitution or the RFRA to make it any more difficult for any one individual (or many) than it is for the rest of the population to get the medical treatment for whatever thing they choose. To impose your views be it by merely making them pay for their own when others have the expense covered by their employer is coercion. It's subtler then sticking a gun in their face and forcing them to convert but it sits on the same trajectory of intolerance.

    Furthermore the Pope and the Catholic church make no distinction between abortion and birth control so your argument vis a vis Hobby Lobby suppressing one but not the other is facile and moot. But lets all stop kidding around, this really has nothing to do with conscience or religion. It is political intolerance here that is being dressed up and dignified as a religious objection. Hobby Lobby and others object to paying for any health care as is evidenced by their utter lack of prior concern for their investment in contraceptive making companies.

    http://www.motherjones.com/politics/2014/04/hobby-lobby-retirement-plan-invested-emergency-contraception-and-abortion-drug-makers

    It's the coercion of religion to be used a weapon in a political war that makes these moral arguments so empty and these legal justifications so repugnant.

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    1. You have it backwards. A small panel of unelected bureaucrats (who happen to be backed up by a larger number of people who are extremely intolerant of people with religious convictions, like yourself) decided to COERCE all employers to pay for something whether or not they find it objectionable.

      The coercion is what was happening TO Hobby Lobby, not BY it. Want proof? Hobby Lobby pays its employees. They are not slaves. They are free to go and purchase anything that it is legal for them to purchase, with no interference from Hobby Lobby.

      What if an employer does not offer dental insurance? Vision insurance? Paid lunch? Paid paternity leave? Paid holidays on religious holy days (you have to take vacation days if you want to observe)? Matching charitable contributions? Or any number of other benefits? Is it forcing its beliefs on its employees?

      No. You're free to buy stuff with the money you're paid, free to work out working time according to your needs, and free to go somewhere with better benefits. If someone tried to prevent you from doing so, they wouldn't get very far.

      No employer in question is preventing any employees from doing anything legal with their own money, thus no one is or ever has been "forcing their beliefs" on them. Rather, intolerant bigots or ignorant folks seeking hand outs are trying to force other people to pay for their lifestyle choices.

      Where would you even draw the line? What about when the government demands that all employers pay directly for unlimited access to abortion at any stage, even partial birth abortion? What about euthanasia? Same exact precedent would allow that.

      And why cover those things "for free?" Why prioritize lifestyle choices (NOT health care) over actual cases of desperate need, like "free" (no co-pay, even) cancer, diabetes, or heart disease treatment? This is such a twisted and backwards mandate on every possible level that it is abundantly clear it was intended primarily as a weapon against political opponents and to advance a particular social engineering agenda, not to actually help anyone and not in any sort of name of "equality."

      To get this issue of freedom and rights so backwards is an enormous danger to our country. If we so pervert "freedom" as to say that you have a right to force someone to buy things for you, particularly things against their beliefs, then our status as a free country is over and we are solidly into a "might makes right" tyranny, where the precedent is that whoever is able to force other people to do their whim gets their way.

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    2. Mee There,

      This wasn't a Constitutional Law case: it was a statutory case, involving RFRA. In any case, you're mistaken in your interpretation of both the First Amendment and RFRA. You said, without providing any support for the claim, "You imagine that they are there to protect you whereas they actually exist to protect the rest of us from groups like you. Groups who assertively expect others to fall in line with their religious beliefs." If you're familiar with the history of the First Amendment, you'll know that's not true. You're talking (apparently?) about the Establishment Clause, while ignoring the Free Exercise Clause.

      But in any case, let's get to the crux of your argument:

      "The whole premise of religious freedom is the freedom from coercion to act against conscience and belief. No one is coercing you (meaning collectively Catholics and other supporters of this legislation) to have abortions or take birth control. You're free to refuse them at anytime according to your belief."

      Nobody's claiming that you're forcing us to abort our own children... just to pay for other people's abortions. And that's exactly the sort of coercion that you rightly describe the First Amendment, RFRA, and the broader concept of religious freedom as being against.

      I take it that you think contraception and abortion are no big deal. Rather than having that debate, take something that you do think is a big deal, like female genital mutilation. If you, as an employer, had to pay for your employees to have access to force their daughters to undergo FGM, you'd morally object, right? You wouldn't say, "well, as long as I'm not the one being mutilated, so no big deal."

      By footing the bill, you're being dragged into a horrible, sickening form of child abuse. That's coercive and it's wrong.

      On the other hand, if your employee claimed that his religion permitted him to do this, and that you were therefore violating his religious freedom by not paying for him to do so, you'd recognize that argument as tendentious and absurd, right?

      Him having the right to do something doesn't mean that he gets it for free, or can force you to pay for it. My right to bear arms doesn't mean that I get to bill my employer for all my guns. Your right to free speech doesn't mean I have to buy you ad space in the Times, etc. Likewise, your alleged "right" to contraception and abortion doesn't mean you get to have those things for free. That's not how rights work.

      There are several other points I disagree with in your comment, but that covers the heart of it, I think.

      I.X.,

      Joe

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    3. You again miss the point as you (if you are an employer, 'they' if you are not) are being obliged by law to contribute to your employees healthcare as many employers do around the world. If they should chose to use that healthcare for contraception or an abortion it's none of your Goddamn business! You shouldn't even know about it it's private between them and their healthcare provider. If they take sick leave to have an abortion you shouldn't/wouldn't know about it yet you still pay their wages for the sick leave.

      As for FGM I am forced by law to pay for male genital mutilation it's called circumcision and it's standard practice in this country, not considered to be a big deal? I consider it aberrant but that's a matter of perspective isn't it? You are feee to have your opinions about abortion, in the strictest sense you are correct but in a real world sense those of you forcing children into the world seem completely at home with letting them want for the rest of their days as you are utterly without compassion for their welfare once they are passed the danger of abortion.

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  14. And the fundamental irony of Jesus himself being a healer and ministering to the poor is of course lost on your self-riteous selves.

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    1. Mee There,

      So because Jesus was a healer who ministered to the poor He'd... kill their unborn children and call it "medicine"?

      The irony here is that this gross subversion of the Hippocratic Oath is being paraded as "healthcare."

      I.X.,

      Joe

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    2. The only people Jesus ever got annoyed with were the hypocrites inside the temple.

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  15. Ahem!
    How America's Biblical Ignorance Allows the Christian Right to Use 'Religious Freedom' For Its Own Agenda
    http://www.alternet.org/belief/how-americas-biblical-ignorance-allows-christian-right-use-religious-freedom-their-own-agenda?page=0%2C1

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    1. Mee There,

      Do you agree with this article? That unless you have "a scholarly contextual understanding of authorship, history and interpretation" of the Bible, that you shouldn't have a right to religious freedom?

      Should you also have to have "a scholarly contextual understanding of authorship, history and interpretation" of the Constitution in able to have civil rights?

      I.X.,

      Joe

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