Originally a comment by the philosophical primate on The American Humanist Association comments.
I wish people would quit talking about this case in terms of “corporate rights” and “corporate personhood” and the like. That’s a red herring. The decision prominently mentions the legal relevance of the fact that Hobby Lobby (and the other plaintiffs) are “closely held corporations” — that is, owned by a small number of shareholders rather than being publicly traded companies — and the decision was rationalized (I won’t dignify it with the word “justified”) on the basis that it protects the religious liberty OF THOSE INDIVIDUAL PERSONS. Yes, those persons own a company, but the rights at stake were the rights of the owners as persons, and religious rights were not in any way imputed to any corporation.
Here’s how the Hobby Lobby case reasoning works: The owners of Hobby Lobby claim, based on the language of the (misleadingly named, unnecessary, and poorly written) Religious Freedom Restoration Act, that the ACA’s requirement that all employers (above a certain size) pay some of the costs of comprehensive health coverage “substantially burdens” their religious liberty. How, exactly? Because comprehensive health insurance coverage includes contraception, and they don’t like contraception — because religion.
Now surely the owners of Hobby Lobby et al have a right to that religious opinion as individual people, and I’ll readily grant that the government would be unduly burdening their religious liberty if it were forcing them to use or purchase contraception. But it’s not quite so obvious that there is any encroachment on religious liberty in forcing them to pay for comprehensive health coverage for their employees. In fact, it’s the opposite of obvious. It’s downright obscure why anyone would think so.
How is paying for their employees’ insurance coverage — which employees may or may not use to acquire contraception — any different from paying their employees’ salaries, which employees also may or may not use to acquire contraception (or any of a number of other things that their employers might find disagreeable for religious reasons)? Yes, there is a purely practical difference that contraception can be expensive, but surely there is no difference in principle. To claim that a burden has been imposed on one’s liberty logically requires that one actually has some genuine right at stake — and employers have no legal or moral right to restrict, coerce, or influence in any way the private medical decisions of their employees any more than they have a right to tell their employees how to spend their paychecks. The claim that the employers in this case have any religious liberty that is being burdened in any way, “substantial” or not, is flatly ludicrous. (But, I repeat, that claim is not based on any notion that corporations as legal persons now have religious freedom to go along with their (mistakenly, foolishly, unjustifiably granted) freedom of speech.)
If anything, the religious liberty of *employees* is very substantially burdened by this decision, because it allows employers to arbitrarily limit employees’ access to health care and thereby impose their own private religious convictions on employees who may not (and probably do not) share them. But the primary burden here is on employees’ right to equality before the law: All people employed at companies above a certain size have a right to an employer-subsidized comprehensive insurance plan under the ACA — except now they don’t, if they have the misfortune of being employed by a privately-owned company whose owners claim they have a religious aversion to some perfectly ordinary health care option which comprehensive insurance plans are required to provide by law. This result is discriminatory on the face of it, even without the additional discrimination that MEN’S health care never seems to be an issue for anyone’s religious convictions.
For my part, I’m convinced that any time religious liberty clashes with equality before the law, the latter is a more fundamental moral and constitutional principle that ought to prevail. (Exceptions welcome, but I can’t think of any. And this is really why I think the RFRA is constitutionally unsound law, because it subordinates other constitutionally-guaranteed liberties to religious liberty.) But never mind that, because there is no plausible argument to be made that the comprehensive insurance coverage requirement of the ACA (which includes contraception, simply because it IS basic health care) imposes a “substantial burden” on the religious liberty of employers: Employers simply do not have any right — based in religious liberty or any other constitutional or legal principle — to make health care decisions (or any other personal or financial decisions) for their employees, so that right cannot be encroached on by the ACA or any other law.
So why did the five-MAN majority of the SCOTUS offer downright silly legal rationalizations in support of the rationally and legally insupportable claim that employers have some religious liberty that is substantially burdened by being required to provide comprehensive insurance coverage (including icky, icky contraceptive care) to employees? Because five white Catholic men are ideologically predisposed to dislike women in general and contraception in particular. And because those same men are willing tools of the plutocracy who always show a clear preference for expanding the power of employers over the protecting the rights of employees.
Yes, yes, yes, a thousand times yes.
The “corporate personhood” thing has also poisoned discussion of Citizens United. There are plenty of reasons to object to that decision without going down the rabbit-hole about “corporations don’t have free speech,” which if I recall correctly even the dissenting justices declined to do. And I really doubt that most of the critics of that decision want to live in a country where the First Amendment is irrelevant when a corporation is involved. As a doctrinal matter, maybe I’d prefer to articulate it as “only natural people actually possess First Amendment rights, but corporations have standing to invoke and defend the rights of their officers, employees, shareholders, etc.,” but that’s not the pivotal issue.
And as philosophical primate shows, the real issue in Hobby Lobby isn’t really about whether corporations (all or some) “have” rights under the Free Exercise Clause, it’s whether there’s an actual burdening of such rights at all, let alone a significant enough burden to justify striking down the provision.
If Hobby Lobby had lost the case, they’d have had to write a check to an insurance company.
Since they won instead, they have to write a check to an insurance company, possibly for a little more.
I can certainly see where that would impose an unfair burden.
It also seems to stomp all over the Establishment Clause.
Companies with such a religious objection that take an exemption should be seeing their health care costs go down.
This gives them a competitive advantage over companies without such an objection. This advantage is based on religious belief. SCOTUS just enshrined in law an advantage for one set of religious believers over all other believers and over nonbelievers.
It might not quite say “This is the correct religion”, but it’s pointing in that direction.
And while Alito took pains to say the ruling applied only to this case, the only way out from throwing the Establshment Clause under the bus that I can see is for the expansion Ginsburg sees to happen. IF every religion got it’s out then at least it’s not unduly preferencing one over the other.
I’m just waiting for the first Christian Scientist-owned company to claim that any health care provision is against its sincerely held beliefs.
“For my part, I’m convinced that any time religious liberty clashes with equality before the law, the latter is a more fundamental moral and constitutional principle that ought to prevail.”
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That is SO Q.E.D… That could be framed in legalese and offered up as a replacement for the clearly abandoned Lemon Test
I guarantee there will be a long line of these assinine companies pushing the parameters until this standing breaks. It’s just TOO fucking flimsy…It runs against TOO much precedent in TOO many ways…
#1 screechymonkey: “And I really doubt that most of the critics of that decision want to live in a country where the First Amendment is irrelevant when a corporation is involved.” I try to bring this up to people by pointing out hypotheticals such as non-profits (like FFRF) being censored by the government, or a business selling t-shirts with some message the government doesn’t like being forced to stop selling those t-shirts.
In the Hobby Lobby case I appreciate the comment by philosophical primate above. It clears things up somewhat. I want to avoid contributing to misunderstandings regardless of where I ultimately stand on the issue.
To correct myself, Hobby Lobby is technically a “publicly traded company,” insofar as the stock not owned by the Green family is available for purchase by others. A “closely-held corporation,” wherein 50% or more of the stock is owned by five or fewer individuals, can still have publicly traded stock (vs. privately owned firms which issue stock which is not traded), so they two terms are not opposites. This has no bearing whatsoever on the argument I made above, but I wanted to correct the error before some asshat quibbled over the irrelevancy of my misuse of a technical term.
The owners of Hobby Lobby claim, based on the language of the (misleadingly named, unnecessary, and poorly written) Religious Freedom Restoration Act, that the ACA’s requirement that all employers (above a certain size) pay some of the costs of comprehensive health coverage “substantially burdens” their religious liberty. How, exactly? Because comprehensive health insurance coverage includes contraception, and they don’t like contraception — because religion.
The part I bolded is essentially the logical fallacy Special Pleading. We will see this in the courts again.
I think that the explanation lies in emotions relating to the perception that they are being personally connected to something they believe is immoral, through social connections. It’s the same emotion category felt by wedding photographers or cake bakers that don’t want to be professionally connected to homosexuality (and occasionally other religions and such). It’s the same emotion category felt by people that want to have prayers before government meetings, but can’t stand to see another faith (or lack of one) represented by their social system. It’s origins are likely here or close to this,
http://www.scientificamerican.com/article/empathy-and-disgust/
They feel contamination through their social connections, originating from how their religious culture views these issues and paints around the emotion of disgust. It’s not rational, but it is definitely possible. The social brain is a fascinating and error prone thing.
The rights claims that have been made are I think a cover for the common denominator to their preferred responses to the things they are complaining of. They want to sever as much social contact and obligation with people who do not “do society” the way they do as they can. They are trying to remain “pure” for more than one reason, but among those reasons is the ability to suppress empathy with respect to people they don’t have dealings with. It confuses them to have to deal with people different from them on the same social level. They want to only have their way of doing society in their experience because other perspectives and ways of doing things are conceptual competition that makes it harder to maintain the religious echo chamber they need to transmit their beliefs in the absence of reason and logic. It is an emotional burden as their emotions are real enough (and should be seriously dealt with on that level), but I fail to see how the government has a compelling interest in respecting irrational or illogical disgust associations. If you reach far enough you could probably find people in sports fandom with similar emotional ties to disliked teams and their fans.
It is an interesting question in a larger sense, how much of a right do we have to remain apart when we are socially sensitive (often differently) to implicit social information? But like libertarians that are scornful of the instincts represented by social contract theory, too much “apartness” can undermine the whole (on the broad social levels, individual social spaces are another matter that is related but still different). Not to mention that as a group they want to be apart only on some issues and would be opposed to people choosing to separate from them.
It’s funny (not really) how they are so easily able to see an emotional reaction as more important to reproductive health care for women. But not the same emotional reaction to other things in other religious individuals. I can’t see how this decision was not explicitly shaped by their own personal religious views.
Yes and I think that this comes down to preventing abuse of power. The religious right loves to go on about the early settlers seeking religious freedom, but forgets that they were fleeing abuse of power by others and often were quite willing to abuse their power in turn. It’s the same reason that corporate person hood is a bad idea (it increases power among the already powerful) and why we need to focus on social changes that distribute power more evenly.
How is paying for their employees’ insurance coverage — which employees may or may not use to acquire contraception — any different from paying their employees’ salaries, which employees also may or may not use to acquire contraception (or any of a number of other things that their employers might find disagreeable for religious reasons)?
Because in one case the employer is paying for something and in the other it is the employee.
Due to the way religion works I can claim my religious feelings have got a boo boo when I do the paying.
Well, no. Salary and health insurance premiums are part of the compensation package. (This dreadful system originated during the labor shortage in WWII, when unions agreed to health insurance instead of wage hikes. Health insurance belongs to the employee, period.)
While I do not disagree with your key points, you might want to double check this phrase, “Because five white Catholic men are ideologically predisposed…” with respect to Justice Clarence Thomas.
Oops, that’s a point: I should have spotted that. Bad editor.