Love, Joy, Feminism
Guest post by Rachel Lazerus
If you’re just catching up on the ramifications of SCOTUS’s decision re: Hobby Lobby, please read Carmen Green’s post first. Since then, some new things have come to light:
a) Other closely-held corporations that can claim sincere religious beliefs that paying for any kind of contraception harms them no longer have to cover any government-approved contraception.
b) Since it is much cheaper for the government (and for private companies) to pay for birth control than it is for them to pay for pregnancy/childcare/education/everything else down the road, this is actually reducing your future tax burden. Every dollar spent on family planning saves $5.66 down the road.
c) Birth control will likely only be subsidized by the government as long as a Democrat is in the White House. There is ample precedent for presidents unilaterally removing support for contraception before, after all, despite the unintended consequences.
d) This is why conservatives are gloating. They haven’t quite won the war on birth control yet, but they will win the second that a Republican is elected to the White House (probable over the long run) or the minute that they get veto-proof majorities in both the House and Senate (less likely, given Republican insistence on alienating minorities and women).
e) Wheaton College has been granted an emergency injunction asking to be spared the paperwork required for “obeying government regulations that seek to assure access to pregnancy prevention services for female workers and students”; the three female justices on the court wrote a blistering dissent towards allowing Wheaton College’s request.
f) Oh and yes, corporations have more important religion than women do, because corporations earn more money and thus have more religion to be bothered about.
This is how it stands, today, as I write this. I assume that by the time you’re reading this post, things will be shifting again. (As I am writing this now, religious orgs are already calling on President Obama to allow them exemptions from non-discrimination laws against LGBT-Americans.)
A lot of people have been angry and posting their reaction. In this post, I’m going to try to focus on a couple of aspects that haven’t been covered as vehemently – namely, why it’s such a big deal that the Supreme Court just did something vastly unprecedented, why it’s such a terrible decision from a public policy perspective, and what exactly Michael Farris of HSLDA’s role in setting this all in motion.
The Religious Freedom Restoration Act
The Religious Freedom Restoration Act [RFRA] was passed in 1993 nearly unanimously.
Ironically, the impetus for the RFRA was to correct judicial overreach. As HSLDA tells it, the court opinion in Employment Division v. Smith was wrong because the majority, in an opinion authored by Justice Scalia, said that a law that seemed religiously neutral (i.e. applied to everyone equally) could not be challenged using the compelling interest standard. The RFRA was introduced in order to restore the compelling interest test for evaluating free exercise claims and, incidentally, limit the judiciary’s ability to determine religious liberty cases.
As Faux Doug Phillips recently reminded his followers, Michael Farris was the co-chair of the drafting committee of this bill. At the Rose Garden signing of the RFRA into law, President Clinton told Phillips, “Tell Mike, I really appreciate the work he did drafting [the RFRA],” a moment enshrined in an HSLDA Home School Court Report cover story.
Justice Ginsburg indicated in her dissent that she did not think that the framers of the RFRA had intended to give protection to for-profit corporations: a two-day Senate hearing before the committee on the Judiciary supports that view, as for-profit corporation rights were never discussed (indeed, the major objection to the RFRA had to do with whether or not it could be used to criminalize abortion). However, the Becket Fund’s amicus brief in favor of Hobby Lobby points to specific provisions referring to corporations not being covered by this law being proposed and then deleted during the legislative process. The Congress that passed the RFRA was aware that it could be used to give corporations, both non-profit and for-profit, some kind of freedom to exercise religious claims.
But until the SCOTUS decision in Citizens United, it was hard for anyone to envision a for-profit corporation, artificial or not, having the same rights as human beings. As Josh Mitchom said on The Billfold:
The genius of Citizens United and Hobby Lobby is to extend to corporate persons all sorts of rights that they can’t actually exercise the way normal people do. This isn’t because corporations somehow want to go to church or to stand up at town hall meetings and voice their opinions. It’s because the people who run them want to do what corporations are made to do, make more money, and they want to do it without regulation. The pious folks who run Hobby Lobby and the other companies involved didn’t sue Health and Human Services because they wanted to close on the Sabbath but were being forced to stay open. They sued because their religious beliefs lined up with getting out of a healthcare obligation that would have cost them a lot of money.
In my day job, I’m Director of Operations and a Research Analyst for the Coalition for Responsible Home Education (CRHE), a non-profit whose mission is to raise awareness of the need for homeschooling reform, provide public policy guidance, and advocate for responsible home education practices. Some of my less glamorous activities involve making sure that we are scrupulously complying with all legal requirements, i.e., making sure that the paperwork has been filed correctly.
Before we incorporated, we had to decide whether to be a non-profit or to be a for-profit corporation. The answer to us was simple: we knew we wanted to be a non-profit. But we also had to pick types of non-profit: should we go with the 501c3, which would allow tax-exempt donations but would have much stricter scrutiny and would limit our lobbying activities, or should we go with a 501c4, where we wouldn’t be tax-exempt, but we would be able to raise more money and lobby politicians in a far more unconstrained manner. There were pros and cons to each position. We had to choose, and so we chose being a 501c3, with all of the attendant benefits and the constraints.
Alito writes in this opinion that this restriction is very troubling. “According to HHS, the companies cannot sue because they seek to make a profit for their owners, and the owners cannot be heard because the regulations, at least as a formal matter, apply only to the companies and not to the owners as individuals. HHS’s argument would have dramatic consequences.” (As though the Supreme Court’s opinion would have no consequences: that the Supreme Court just ordered lower courts to review six different cases, all of which broadly challenge contraception and reproductive rights, in the wake of Hobby Lobby must be sheer correlation and not causation.) Alito goes on: “Any suggestion that for-profit corporations are incapable of exercising religion because their purpose is simply to make money flies in the face of modern corporate law. […] Hobby Lobby’s statement of purpose commits the Greens to “[h]onoring the Lord in all [they] do by operating the company in a manner consistent with Biblical principles.” Each family member has signed a pledge to run the businesses in accordance with the family’s religious beliefs and to use the family assets to support Christian ministries.”
The assumption of sincerely-held beliefs sets the bar low, so unconstrained by any connection to the real world, that Hobby Lobby can be considered a “Christian corporation” with all of the privileges and none of the constraints that real Christian non-profits live under.
Hobby Lobby can receive special exemptions from paying for these so-called “abortifacients” (which they aren’t, which they never have been, it doesn’t matter how hard they believe in something, that doesn’t make it true, we’re not Stephen Colbert and this isn’t truthiness time) – and yet, simultaneously, invest in and make a profit from the companies that manufacture Plan B.
They can have their cake and eat it too, because they’re special Christians. It doesn’t matter that the “Christian causes” that they donate their money to, that Alito so glowingly referred to, are the same as their own pet political causes, putting textbooks packed with theonomic concepts in public schools, funding serial sexual harrasser Bill Gothard, and funding the proposed Arizona’s anti-gay SB-1062 bill.
And, of course, it doesn’t matter that this good Christian company is the same one where an employee felt comfortable explaining to a Jewish customer that the reason they didn’t sell any ornaments or cards for any non-Christian faiths was that “we don’t cater to you people.”
Alito didn’t need tax returns or proof of Christian decency to judge Hobby Lobby’s sincere belief. He could take it on faith. Convenient, indeed, that Alito is also a conservative Christian whose political views line up with the Greens’.
Why this doesn’t make any sense from a public policy perspective:
A large part of Hobby Lobby’s suit, and why Alito’s majority thinks it has merit under the Religious Freedom Restoration Act (RFRA) is that Hobby Lobby would be incurring a “substantial burden” by not following the contraception mandate: either Hobby Lobby acts against its owners the Greens’ “sincerely held religious beliefs” and cover all forms of government-approved contraception, or they would be losing up to $475 million a year for not covering contraception, or they would be losing $26 million by not covering any insurance at all.
Alito says, “If these consequences do not amount to a substantial burden, it is hard to see what would.” And yes, for any human being that isn’t Bill Gates, $26 million would be a large amount of money to lose. But Hobby Lobby is a corporation, not a human being, and a for-profit corporation that makes over $3 billion dollars per year. And unlike Alito, we are not afraid of large numbers, and we can accurately measure the size of this burden on Hobby Lobby.
If Hobby Lobby dropped health insurance altogether and allowed their employees to seek insurance on the market exchanges created by the ACA, they would lose $26 million a year — approximately 0.87% of their annual revenues. In 2009 alone, Hobby Lobby CFO Jon Cargill donated over $54 million to the National Christian Charitable Foundation (also known as the National Christian Foundation). If $26 million is a substantial number to the Green family, they certainly don’t act like it. And man is known by his acts.
Alito refers to how important it is for Hobby Lobby to offer health care for all their full-time employees, referring again to how it’s not just smart business practices, it’s a matter of religious principle. But Hobby Lobby is no longer living in an America where health insurance is left up to the whim of the employer. This is 2014, and the Affordable Care Act passed: everyone has access to health insurance now. We can throw out the old precedent. Offering health care so that their employees aren’t eligible to find insurance elsewhere, and then only covering the types of insurance their lawyers said they should feel comfortable with (remember, Hobby Lobby already covered Plan B and IUds until they decided to offer this lawsuit) isn’t an example of Christian charity. It’s Christian hypocrisy.
But as many arguments as I can come up with to test the substantive burden—and believe me, I have many more—I don’t think it matters. I think Justice Alito had made his decision long before HHS had ever argued its case before him, judging by the number of arguments he brings up and then disappointedly acknowledges no one had mentioned before him.
I am incensed and angry and despairing and passionate and tired and enraged and prayerful and all of these emotions are things I am experiencing simultaneously. And none of these emotions are things a corporation can have. Because while corporations may have the legal fiction of ‘persons’, they are not humans, and do not have human rights.
Corporations don’t get religious protections because they aren’t religious, they are not funded by religions, they are not donating their profits to religious purposes, they are not organized for religious purposes. They are not people: there may be the parlance of a “legal fiction” in how laws apply to them, but that’s not the same thing at all. You don’t get to pick and choose which laws apply to you. If you want to be a religious nonprofit, dissolve and reform as a religious nonprofit. Lose money in your religious conviction that supplying certain types of birth control are Wrong! That would really show Jesus what you’re made of.
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