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Why Hobby Lobby matters

July 7, 2014

Quite a few commentators, such as Megan McArdle and Andrew Sullivan, are pointing out the small practical consequence of the Hobby Lobby decision, relative to the court upholding most of the ACA, or other problems workers face, or the state of affairs prior to the ACA. Until recently, workers had no guarantee that they could get health insurance either from their employer or an exchange, and if they did get it from their employer, there was no guarantee it would cover contraceptives.

That may be correct, as far as it goes. Though some worry about a wave of similar suits on issues beyond contraception.

Whichever way it turns out, there is something deeper going on in the reaction to this ruling than the practical consequence. Several somethings. Let’s begin with Alito’s claim that the ruling is narrow:

This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs.

The question, as Ginsburg asks, is why not? Unlike Ginsburg, I think that has a clear answer. In this nation, the religious right’s fight for religious liberty has focused entirely on Christian privilege. None of the usual suspects lifted a finger to defend Muslims building a mosque and cemetery in Murfreesboro; they were on the other side of that. If this case had been brought by a Scientologist employer wanting to deny psychiatric treatments, does anyone think it would have been decided the same? But the case was brought by conservative Christians. And decided by five Catholic justices.

Five Catholic male justices. To Catholics, all contraception is a sin. As is all sex outside marriage. But men getting vasectomies (covered by Hobby Lobby’s insurance) and single men getting drugs for erectile dysfunction never are made the kind of issue that female contraception is made. Funny, that. The court quickly made clear that its ruling applies to all contraception, not just the ones the protestant owners of Hobby Lobby disapprove. Who knows? Maybe some Catholic owners will start objecting to insurance coverage for vasectomies.

Five Catholic, male justices appointed by Republicans. No matter what outreach they now make and what rhetoric they now spin, women rightly will see this as the latest assault in the Republican war on them.

Finally, there is the issue of the role of for-profit corporations in our society. The for-profit corporation is a legal construct, and its primary purpose is to create a legal distinction between a business and its owners. The corporation’s debts are not the owners’ debts, its legal liabilities are not their liabilities, the things it may do for the sake of profit often may be things individual owners dislike. And yet, they receive in aggregate all of its dividends and capital gains. It is a wonderfully useful construct, justified by how it encourages business formation, regularizes business debt, turns equity into a commodity that can be traded, joins capital and people for the sake of a particular venture, and by all of that, stimulates economic growth. Given the distinction the corporate structure creates between an owner and a business, the exigencies of running a business to make a profit, and the many people and constraints involved in business decisions, there’s always a bit of anthropomorphism in ascribing knowledge or belief or other human characteristics to a corporation.

That distancing between the owners and their business was already apparent in Hobby Lobby before it brought its suit. Hobby Lobby provided insurance covering some of the contraceptives to which it now objects, its corporate conscience not too much bothered by that. The owners claim they didn’t know. Which shows only that they are not identical with Hobby Lobby as a corporate entity. Their conscience also isn’t bothered by their business’s retirement plan investing in mutual funds with stakes in companies that sell those same products. Every American understands that business decisions get made by organizational processes for the sake of business and that corporate boundaries establish limits to personal preference. Yet, the Supreme Court ruled that the owners are so tightly identified with their large corporation that their personal religious views create a legal exception for it. So when Hobby Lobby’s owners want the protection of the corporate shield, the business and they are different. When they want to grow to a large and profitable business, they can delegate decision making to a host of managers. But when they want to assert their religious views against general law, they and Hobby Lobby are one and the same.

What the right forgets is that the for-profit corporation as a legal construct isn’t justified by its convenience for owners, but by its benefit to society. If someone wants to run an organization purely as an extension of themself or for religious purpose, that can be done as a sole proprietorship or as a non-profit.

This decision exposes three poisonous strands in modern conservatism: its assumption that Christianity is the model religion that law must especially respect, its desire to elevate their rules about women’s sexual and reproductive behavior into our common social institutions, and the pretense that the for-profit corporation exists only to serve the ends of owners. Even if the legal logic of the decision were impeccable, those favoring it may end up wishing it didn’t expose so much of their political character.

One Comment leave one →
  1. July 7, 2014 4:03 pm

    I think the test of fire will come when a corporation owned by non-Christians uses this legal case as precedent for skirting the law in other ways. Perhaps a law other than ACA. And I can’t imagine what legal argument will preserve one religion protection and not the other, but the male catholic judges will find a way, won’t they?

    But what I fear is that this Supreme Court, having given corporations free speech and religious freedom, will now give them the vote.

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