“What’s Next?”: Yes, Some Corporations Can Pray — And You’ll All Pay
In its decision Monday in the Hobby Lobby case, the conservative Supreme Court majority that upheld corporations’ religious objections to birth control spends an inordinate amount of time defending itself from the reasoning and wrath of Justice Ruth Bader Ginsburg’s dissent.
Justice Samuel Alito, whose name is on the decision, alludes no fewer than 24 times to the “principal dissent,” which Ginsburg wrote for the four-member minority. Plainly, he felt Ginsburg’s powerful intellect breathing down his neck as he tried to find a path to upholding the Hobby Lobby parties’ attack on women’s rights without expanding corporate “personhood” too much.
He failed. Ginsburg concisely labels Alito’s ruling one of “startling breadth,” pointing out all the doors it opens to religious claims by business owners trumping the rights of their employees. She also observes that the majority’s answer to allowing business owners to opt out of covering their employees’ legitimate health needs is that “the general public can pick up the tab.”
In other words, the decision gives business owners the right to weasel out of their legal obligations by sticking you and me with the bill.
The Hobby Lobby case, as we reported earlier, has been percolating for months as yet another corporate challenge to the Affordable Care Act. It was brought originally on behalf of the pious owners of that privately held crafts chain, along with other private businesses. They asserted that their religious convictions were trampled by the Affordable Care Act’s mandate that medium and large employers cover contraceptives for their female employees without cost sharing—that is, without co-pays and deductibles.
The businesses pointed to a 1993 federal law, the Religious Freedom Restoration Act, which prohibits the government from imposing a “substantial burden” on a person’s exercise of religion, even in a generally enforced law. The court majority ruled that the law effectively pre-empts the contraceptive mandate in the ACA.
Eric Posner of the University of Chicago law school contends that, to the extent the majority relied on the RFRA, “Alito’s legal argument is stronger than Ginsburg’s.” But the law itself, he says, “is pretty dumb.”
Alito maintains that his decision is narrow, applying only to contraceptives, and only to “closely-held” companies — that is, not to publicly traded corporations.
Ginsburg doesn’t buy it. She asks how the ruling can be differentiated from those in which business owners pose religious objections to granting insurance coverage for “blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia … and pills coated with gelatin (certain Muslims, Jews and Hindus); and vaccinations (Christian Scientists, among others).” She concludes, “the court … has ventured into a minefield.”
Indeed, Alito himself acknowledges that “other coverage requirements, such as immunizations … may involve different arguments about the least restrictive means of providing them” — that is, exempting the employer, and letting government step in.
To a great extent, the decision turns on whether a business is a “person.” This is the same minefield the court seeded in its infamous Citizens United case in 2010, when it held that campaign finance laws limiting corporate contributions violated corporations’ free-speech rights. The detonation of those mines has laid waste to the electoral process, turning it into a playground for corporate interests. (More of a playground, anyway.)
Here the court’s majority rules that a privately held company is, in effect, a “person” that can express religious convictions. Alito sugarcoats that finding, acknowledging that corporate personhood is a “fiction,” but one designed to “provide protection for human beings.”
Ginsburg also picks that assertion clean. “The exercise of religion is characteristic of natural persons, not artificial legal entities,” she writes, quoting retired Justice John Paul Stevens as having observed in the Citizens United case that corporations “have no consciences, no beliefs, no feelings, no thoughts, no desires.”
Today’s decision invests them with all the consciences, beliefs, thoughts, and desires of characters from Tolstoy. And that’s a lot.
Alito and Justice Anthony Kennedy, in a separate concurrence, argue that the federal government has already offered an accommodation to nonprofit organizations that object to the contraception mandate — they can cede the responsibility for the coverage to their insurers, who cover their own expenses via a rebate on a federal tax. They ask: Why not extend that break to closely held companies?
(That’s how the general public would end up subsidizing the religious discrimination practiced by Hobby Lobby’s owners.)
What Kennedy and Alito seem to miss is that those nonprofit groups didn’t gain the exemption because they were nonprofit, but because their exclusive purpose was religious, not commercial. “The court forgets that religious organizations exist to serve a community of believers,” Ginsburg writes. “For-profit corporations do not fit that bill.”
It will be said that Monday’s decision walked a fine line, giving the Hobby Lobby owners what they sought without opening the floodgates to religious objections to a wide range of laws and regulations.
The court has signaled that it’s open as never before to claims by private businesses for exemptions from laws that apply to the rest of us, based on religious beliefs that can’t be objectively verified. And if they win, we’ll pay. Ginsburg’s question is apt: What’s next?
By: Michael Hiltzik, Columnist, The Los Angeles Times: Published in The National Memo, June 30, 2014
“Stunning Hypocrisy”: Hobby Lobby 401(k) Discovered To Be Investor In Numerous Abortion And Contraception Products While Claiming Religious Objection
In what just may be the most stunning example of hypocrisy in my lifetime, Mother Jones has uncovered numerous investments on the part of Hobby Lobby’s retirement fund in a wide variety of companies producing abortion and contraception related products.
Hobby Lobby is currently seeking relief from certain contraception benefit requirements of Obamacare in a United States Supreme Court case that promises to be a landmark decision on the rights of corporations and the extension of personal religious protections to corporate entities. In the case of the Hobby Lobby corporation, the company is closely held by the Green family who purport to have strong religious objections to certain types of contraceptive devices and are suing to protect those religious rights.
Remarkably, the contraceptive devices and products that so offend the religious beliefs of this family are manufactured by the very companies in which Hobby Lobby holds a substantial stake via their employee 401(k) plan.
As I suspect many readers will find this as hard to believe and digest as I, the data can be confirmed by reviewing the company’s 2012 Annual Report of Employee Benefit Plan as filed with the Department of Labor.
This according to Mother Jones’ Molly Redden:
“Documents filed with the Department of Labor and dated December 2012 (see above)—three months after the company’s owners filed their lawsuit—show that the Hobby Lobby 401(k) employee retirement plan held more than $73 million in mutual funds with investments in companies that produce emergency contraceptive pills, intrauterine devices, and drugs commonly used in abortions. Hobby Lobby makes large matching contributions to this company-sponsored 401(k).”
In a brief submitted to the Court in support of Hobby Lobby’s position in the case, the company specifically names contraceptive products such as Plan B, Ella, and IUDs as violating their religious beliefs because they work by preventing a fertilized egg from implanting in a woman’s uterus. According to the Green family, interfering with an already fertilized egg is tantamount to abortion—an act unacceptable to the family and one they refuse to participate in no matter what the Affordable Care Act may require .
However, it turns out that the owners of Hobby Lobby do not appear to have any problem with profiting from the companies that manufacture the very products that so grievously offend their religious principles.
The following is a summation of the companies manufacturing these products that are held by the Hobby Lobby employee retirement plan, as set forth by Ms. Redden’s remarkable reporting:
“These companies include Teva Pharmaceutical Industries, which makes Plan B and ParaGard, a copper IUD, and Actavis, which makes a generic version of Plan B and distributes Ella. Other holdings in the mutual funds selected by Hobby Lobby include Pfizer, the maker of Cytotec and Prostin E2, which are used to induce abortions; Bayer, which manufactures the hormonal IUDs Skyla and Mirena; AstraZeneca, which has an Indian subsidiary that manufactures Prostodin, Cerviprime, and Partocin, three drugs commonly used in abortions; and Forest Laboratories, which makes Cervidil, a drug used to induce abortions. Several funds in the Hobby Lobby retirement plan also invested in Aetna and Humana, two health insurance companies that cover surgical abortions, abortion drugs, and emergency contraception in many of the health care policies they sell.”
When added up, the nine funds holding the stated investments involve three-quarters of Hobby Lobby’s 401(k) assets.
You may be thinking that it must have been beyond Hobby Lobby’s reasonable abilities to know what companies were being invested in by the mutual funds purchased for the Hobby Lobby 401(k) plans—but I am afraid you would be wrong.
Not only does Hobby Lobby have an obligation to know what their sponsored 401(k) is investing in for the benefit of their employees, it turns out that there are ample opportunities for the retirement fund to invest in mutual funds that are specifically screened to avoid any religiously offensive products.
“To avoid supporting companies that manufacture abortion drugs—or products such as alcohol or pornography—religious investors can turn to a cottage industry of mutual funds that screen out stocks that religious people might consider morally objectionable. The Timothy Plan and the Ave Maria Fund, for example, screen for companies that manufacture abortion drugs, support Planned Parenthood, or engage in embryonic stem cell research.”
Apparently, Hobby Lobby was either not aware that these options existed (kind of hard to believe for a company willing to take a case to the Supreme Court over their religious beliefs) or simply didn’t care.
By: Rick Ungar, Op-Ed Contributor, Forbes, April 1, 2014
“No Constitutional Freedom Is Limitless”: Companies Are Not Churches, And Must Conform To Modern Laws
What do contraceptives have to do with religion?
As a liberal Protestant, I see no connection — but that’s beside the point. There are plenty of sincere Catholics and conservative Protestants who believe the use of contraceptives, or at least some types of them, is sinful. That’s reason enough to be careful about any broad government regulations involving birth control.
Religious liberty is a cornerstone of the American way of life, a fundamental principle of the U.S. Constitution. The Founding Fathers were close enough to the bloody religious wars in Europe to try to found a country safe for pluralism, respectful of all religions while requiring none. If there is any such thing as American exceptionalism, freedom of religion is certainly one of its hallmarks.
Still, no Constitutional freedom is limitless. For more than a century, jurists have restricted religious liberties when they interfered with other important values. The Supreme Court did so as early as 1879, when it ruled against polygamy, practiced by some Mormons at the time.
That’s why the U.S. Supreme Court ought to rule against two corporations whose owners are fighting the requirement — a tenet of Obamacare — that employers’ health insurance plans pay for birth control. If businesses are given an exemption from a valid law that serves a useful public purpose because they claim it violates religious beliefs, where would it end?
(I’m leaving it to others to argue the perfectly valid point that corporations don’t have religious beliefs. They are not people. How many corporations have you ever seen sitting in the pews on Sunday?)
There are plenty of businesses and institutions that believe they have the right to fire gays and lesbians because homosexuality violates their religious beliefs. Some religious groups would keep outdated practices toward women, banning them from most high-powered jobs. While many people genuinely believe their God requires that, our civil society puts a premium on promoting equality.
If the two values are in conflict, individuals’ right to equality ought to win out. In a 1993 religious liberties case involving the use of peyote, Justice Antonin Scalia, himself a hyper-conservative Catholic, quoted from an earlier case when he wrote for the majority: “Can a man excuse his practices … because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”
The case involving contraception is no different. The government has an overriding interest in ensuring that women’s health care is treated no differently from men’s, and reproductive services are vital. (As President Obama has noted, if men could have babies, contraception would already be a standard provision of all health insurance policies.)
For the record, laws have long been necessary to require health insurers to pay for certain procedures and pharmaceuticals. For example, the Georgia Legislature insisted in that 1990s that insurers pay for breast cancer screenings, which has helped to improve survival rates.
Since contraceptive use would help prevent abortions, religious conservatives ought to be among the most enthusiastic proponents of birth control coverage in health insurance. But one of the companies that opposes the law — Hobby Lobby, a chain of craft-supply stores — is owned by Southern Baptists who believe some forms of birth control, such as intrauterine devices, are tantamount to abortion. The other company involved in the Supreme Court case, Conestoga Wood Specialties, is owned by Mennonites who don’t believe in birth control of any sort.
The Obama administration has rightly compromised over religious objections to birth control mandates, exempting churches and other religious institutions. But corporations are not churches, no matter who owns them. Hobby Lobby and Conestoga Wood should be required to abide by the laws of a modern state.
Otherwise, where would this end? Bigotry operating under the auspices of the Bible could once again become the law of the land.
By: Cynthia Tucker, The National Memo, March 29, 2014
“Can Liberals Trust John Roberts To Rescue Obamacare Again?”: A Pro-Hobby Lobby Ruling Would Be His Most Radical Decision
Most Supreme Court watchers are fixated these days on Sebelius v. Hobby Lobby—the important challenge to the Affordable Care Act’s contraception mandate scheduled for argument Tuesday. And why wouldn’t they be? With its potent mix of religion, sex, Obamacare, and prayerful corporations, it’s the blockbuster case of the term. It is also a crucial test of Chief Justice John Roberts’s leadership on the Supreme Court.
Just two years ago, Roberts cast the deciding vote to largely uphold the Affordable Care Act. While the country remains divided over whether he acted like a traitor or a statesman, all would have to agree that, given the level of public scrutiny on the Court and the case’s overall importance (both substantively and to the President’s legacy), Roberts’s ACA vote was the defining moment of his tenure thus far. In a bold move, he broke ranks with his conservative colleagues, joined with the Court’s progressive wing, and preserved the President’s signature achievement. In Hobby Lobby, Roberts meets the ACA yet again, and the stakes for his reputation—and that of his Court—couldn’t be higher.
Chief Justice Roberts has often spoken about how important it is for the justices to maintain the legitimacy of the Court—by limiting divisive rulings, moving the law incrementally, and trying to stay above politics. For instance, in an interview with Jeffrey Rosen early in his tenure as chief justice, Roberts explained that the Court is “ripe for a … refocus on functioning as an institution, because if it doesn’t it’s going to lose its credibility and legitimacy.” Expressing admiration for the great Chief Justice John Marshall, Roberts added that, even as a committed Federalist, Marshall preferred to move the law “in a way that … wasn’t going to alienate people on the Court and turn the Court into another battleground.” While commentators certainly quibble over just how radical an effect John Roberts has had on the law—even Justice Antonin Scalia once attacked the chief justice’s approach in a pre-Citizens United campaign finance case as “faux judicial restraint”—there’s little question that Roberts himself prefers the image of the modest jurist to that of judge-as-hero (think Earl Warren) or judge-as-prophet (think Scalia).
He cultivated this image most dramatically in the first ACA case, joining with his progressive colleagues to uphold a Democratic president’s most important achievement—and in the middle of an election year, no less. Furthermore, just last term, the Roberts Court managed to reach an unlikely compromise in a blockbuster affirmative action case, and Roberts himself preserved the marriage-equality status quo in California with his majority opinion in Hollingsworth v. Perry. However, even in areas where Roberts has pushed the law dramatically to the right (like voting rights), he has tended to prefer a slower-moving, more incremental approach than his more radical colleagues, with seismic shifts (like Shelby County v. Holder) coming only after the political ground has already been prepared with previous, more modest decisions (like NAMUDNO v. Holder)—legal warning shots, if you will. He has also chipped away at progressive laws in a series of low-profile cases—for instance, those on the Court’s business docket. This strategy allows him to move the law to the right, while also preserving the institutional legitimacy of the Court.
Through this lens, Hobby Lobby presents a potential dilemma for the savvy Chief Justice. In the case, Hobby Lobby, a craft-store chain owned by Southern Baptists, is suing the government to seek religious exemption from the ACA’s requirement that it offer insurance plans to employees that cover contraception at no extra cost. On the one hand, Roberts is confronting the ACA for the first time since the conservative firestorm over his decision largely upholding the Act. There’s little doubt that he’ll be tempted to throw conservatives a bone, siding with Hobby Lobby and against the ACA.
On the other hand, a vote in favor of Hobby Lobby requires the chief justice to do at least three things that threaten major disruptive consequences and present serious downstream risks for the Court as an institution. First, he must conclude that corporations have the same rights to religious freedom as living, breathing humans—something that the Supreme Court has never done. Second, he must unsettle centuries of well-established corporate law practice—a move at loggerheads with the Roberts Court’s (and John Roberts’s own) pro-corporate leanings. And, third, he must extend unprecedented protections to a secular employer, therefore opening the floodgates to new religious freedom challenges to countless other laws. In short, a vote for Hobby Lobby means endorsing a radical departure from well-settled precedent—perhaps nowhere more strikingly than in the realm of religious freedom.
In the decades leading up to the Supreme Court’s 1990 landmark decision in Employment Division v. Smith, courts heard many free exercise challenges. For the most part, they followed a familiar pattern: A law applied to everyone in a given jurisdiction; someone came to court and claimed a religious objection to that law; and the court ultimately rejected that challenger’s claim. This was true in the Supreme Court and, as explained by Professor James Ryan, it was also true in the lower courts. The bottom line—whether you were an Amish employer refusing to pay Social Security taxes or an army doctor wishing to wear a yarmulke while on duty, you were probably going to lose your free exercise claim.
Then along came Smith—a free exercise decision that hit the legal and political world like a thunderbolt. The case involved Native Americans dismissed from their jobs for failing a drug test. (They had smoked peyote during a religious ceremony.) Because of this drug use—religiously motivated or not—Oregon then denied them unemployment benefits. When they challenged this action on free exercise grounds, the Court rejected their claim. However, rather than simply applying the Court’s traditional balancing test (where the Court weighed a given law’s burden on religion against the governmental interest advanced by the law), Justice Scalia struck a radical pose, shelving it for a bright-line rule that was even less protective of religious objectors—and hence the controversy.
Of course, under the pre-Smith test, religious objectors were already losing these cases. Following Smith, they were only slightly more likely to do so. Nevertheless, Congress responded to Scalia’s decision by enacting a new law explicitly overturning Smith and restoring the pre-Smith status quo, but all that really did was reestablish an environment where free exercise claims rarely succeeded.
Given this legal backdrop, the key question for Roberts leading up to the Hobby Lobby argument is whether he’ll stick with this traditional approach or adopt a new, more stringent test—one even stricter than anything that existed in the pre-Smith world. If the chief justice takes the more radical path—and, more importantly, if he convinces at least four of his colleagues to go along with him—Hobby Lobby could, indeed, live up to the hype and become a truly revolutionary case.
For instance, such a ruling would entangle lower courts and the Roberts Court itself in knotty free exercise challenges (and a lot of them)—challenges that would potentially require judges to define what counts as “religious belief,” assess the sincerity of those beliefs that pass muster, and apply the traditional balancing test with serious bite. Courts have balked at going down this path in the past—and for good reason. Furthermore, the Supreme Court has never granted a religious accommodation to a secular business that comes at the expense of its employees—an unprecedented move that would allow secular employers to effectively impose their own religious views on the employees, even in the face of contrary laws.
In the end, however tempted Chief Justice Roberts may be to strike a blow to Obamacare in this highly publicized, blockbuster case—and however much his conservative colleagues may be pulling him in that direction—Roberts can’t give in to these pressures without tarnishing his carefully cultivated image as a cautious jurist and, in the process, unleashing a wave of unpredictable (and risky) consequences.
By: Tom Donnelly, Counsel at Constitutional Accountability Center; The New Republic, March 24, 2014
“Religion Is No Excuse for Bigotry Against Women”: Corporations Have No Soul, And They Certainly Don’t Have A Relationship With God
This Tuesday, the U.S. Supreme Court will hear arguments in two consolidated cases, Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius, on the government’s authority to require employers to provide health care coverage that includes birth control and other pregnancy-related services under the Affordable Care Act.
The owners of two for-profit corporations, Hobby Lobby Stores and Conestoga Wood Specialties Corp., claim their Christian religious beliefs justify withholding contraception coverage from their employees, never mind what their employees believe.
Hobby Lobby and Conestoga Wood Specialities are not the only employers seeking the legal right to restrict their women employees’ access to birth control. Some 100 companies or nonprofit organizations — NOW calls them the Dirty 100 — have sued the United States Government for that same power.
Two issues raised by these lawsuits are receiving a lot of attention: First, can a corporation claim religious freedom under the First Amendment? Second, can a corporation block its employees from at least some forms of contraception on the grounds they are abortifacients? I’ll comment on those in a moment, but first I want to pause over a third issue: Can a corporation use its supposed Christian religion to justify discriminating against its women employees?
I want to propose that we lay to rest, once and for all, the tired old I’m-a-bigot-because-God-wants-it argument. Think about it. Proponents of discrimination have routinely used religion to justify their hurtful policies: two shameful examples are slavery in the United States and segregation in the Deep South.
More recently, religious claims were the driving force behind California’s Proposition 8, which sought to prohibit same-sex marriages. But these arguments have been thoroughly discredited. We have progressed as a society to the point where the use of religion to justify excluding, demeaning or discriminating against whole groups of people is roundly condemned, and rightly so. The idea of Hobby Lobby Stores, Conestoga Wood, or any of the Dirty 100 using religion as an excuse to block women’s access to birth control should be no less condemned.
As to whether Hobby Lobby Stores or Conestoga Wood can claim religious freedom SCOTUSblog summarized what’s at stake.
At the level of their greatest potential, the two cases raise the profound cultural question of whether a private, profit-making business organized as a corporation can “exercise” religion and, if it can, how far that is protected from government interference. The question can arise — and does, in these cases — under either the First Amendment’s Free Exercise Clause or under a federal law, the Religious Freedom Restoration Act, passed by Congress in 1993.
In a manner of speaking, these issues pose the question — a topic of energetic debate in current American political and social discourse — of whether corporations are “people.” The First Amendment protects the rights “of the people,” and the 1993 law protects the religious rights of “persons.” Do profit-making companies qualify as either?
As an aside, I have to wonder, if the Supreme Court decides that a corporation is a “person” with religious freedom under the First Amendment, where might that leave the status of women as “persons” with the right to equal protection of the law under the Fourteenth Amendment? In any event, Caroline Mala Corbin, a law professor at the University of Miami, succinctly rejected the idea of corporations as having the capacity for religious belief. As she said, “For-profit corporations do not and should not have religious rights. They have no soul, and they certainly don’t have a relationship with God.”
So, what about the claim that Hobby Lobby Stores and others in the Dirty 100 are making, that some forms of contraception are actually abortifacients? Two summaries by the National Partnership for Women & Families (here and here) are worth reading, and I’d be interested to know if you have the same reaction that I did when I read them.
These arguments would be laughable if the men running the Dirty 100 entities weren’t so deadly serious about blocking women’s access to life-saving health care. Because that’s what contraception is: life-saving. Unintended pregnancy is highly associated with infant and maternal mortality. Unintended pregnancy is also a significant risk factor for domestic violence.
So when these guys start saying that they have to, just have to, block women’s access to safe and effective contraception because they’re worried about the “lives” of the zygotes, I want to say: Seriously?
You are going to claim to be pro-life but ignore infant mortality? And maternal mortality? You are going to claim to be confused and worried about the fertilized egg, and the implantation, and the uterine wall, but ignore the intimate partner violence that accompanies unintended pregnancy? What business do you have talking about women’s bodies — as if we are not in the room — in the same way one might talk about, say, whether robots are more like androids or more like appliances? Seriously.
Let’s review some facts. Some 99 percent of sexually active women, including 98 percent of sexually active Catholic women, use contraception at some point. According to the National Partnership, an estimated 17.4 million women need subsidized services and supplies because they are unable to access or purchase contraceptive services and supplies on their own. And more than half of young adult women say cost concerns have led them to not use their birth control method as directed.
The Guttmacher Institute has found that about half (51 percent) of the 6.6 million pregnancies in the United States each year (3.4 million) are unintended. What’s more, the 19 percent of women at risk who use contraception inconsistently or incorrectly account for 43 percent of all unintended pregnancies.
Yet, in the face of these facts, Hobby Lobby and the others in the Dirty 100 want to restrict women’s access to this essential preventive care because of the claim that “zygotes are people too.”
If that’s the best they can do, they should surely lose this appeal. Of course, the case is before Chief Justice John Robert’s Supreme Court, which ushered in the era of corporations as people with the Citizens United case, and is widely considered the most politically active since the earliest days of our republic. So never say never. But whatever the Supreme Court does, I know what I’m not going to do: give my business or my money to Hobby Lobby or any of the other Dirty 100 that practice similar gender bigotry.
You can take action too: Click here to sign our petition telling them their bias is not acceptable.
By: Terry O’Neil, President, National Organization for Women; The Blog, The Huffington Post, March 21, 2014
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