Secular Liberals and Hobby Lobby

I am puzzled by the selective tolerance of secular liberals. These liberals are prepared to protect speech involving depictions of animal cruelty, gruesomely violent video games sold to children, and the intentional infliction of emotional distress at military funerals. They would also agree that the state should not compel people to violate their conscience without substantial justification.

Although the Court’s decision in Hobby Lobby makes clear that none of the involved employees would be denied access to insurance coverage for contraceptives, most secular liberals would deny the freedom of religion claim. I respectfully disagree with one of their main reasons and strongly disagree with another.

I understand the argument that a corporation is not a person. A corporation has no conscience. On the other hand, religious organizations including corporations have freedom of religion rights. The question is whether a for-profit corporation (which liberals typically want to engage in some social justice work) should have freedom of religion rights when all of the owners object to an activity on the basis of conscience. I think to deny the freedom of religion right on the ground that the business is a corporation rather than a partnership elevates form over substance. Moreover, I do not see how the recognition of the possibility of rights in this context opens a door for large corporations. The need for owner unanimity (which I would impose) forecloses that possibility. I do not read the Court’s opinion as contemplating majority rule in the case of for-profit corporations.

The argument that I do not respect is the claim that the law here does not impose a substantial burden. Everyone on the Court agreed that the owners of Hobby Lobby are sincere. I am not sure whether it was part of the record that the Hobby Lobby’s 401 (k) plan has $73 million invested in mutual funds that invest in the very contraceptives to which they morally object! See here. I would like to hear an explanation of why the owners are morally precluded from offering insurance that includes certain contraceptives, but not precluded through their investments from making money off the sale of those contraceptives. I would be on a higher horse regarding this point if I were not an investor in index funds which must include however indirectly many loathsome companies and products.

I also worry that the sincerity of many on the right is politically corrupted. I think the hatred for Obama has helped fuel the religious objections which does not mean that the objectors are insincere. It does mean that many objectors got to these views by a corrupt process.

But the question whether a burden is substantial does not get started without sincerity and everyone on the Court conceded sincerity. So let us assume the owners’ sincerity.  How does one support the view that the burden on the owners is not substantial? In the end, the argument in my view ultimately rests on a simple disagreement with the owners’ views. Of course, it is easy to disagree. The owners in the end are being forced by the government to make funds available in the form of insurance for medical care including contraceptives. The contraceptives at issue would be used if, but only if, women make the choice to use the particular contraceptives to which the owners object.  Making money available for immoral purposes is a part of our daily tax life. To conclude that obeying this government regulation is foreclosed as a matter of conscience is morally precious to say the least. And the argument that notifying the insurance company of the moral objection is also morally foreclosed strikes me as what Catholics ordinarily characterize as an excessively scrupulous conscience.

My point, however, is that even if the moral claim is crazy, it is still a substantial burden to force someone to engage in conduct that violates their conscience. It is not up to government to officially declare that a religious objection is a false objection. Please understand. I am not saying that freedom of conscience should always prevail. Freedom of conscience should give way in the face of a significant interest in many cases. If women, for example, would have been denied access to contraceptives (the ones at issue would cost a month’s pay of a Hobby Lobby worker), that interest in my view should have overridden the freedom of conscience claim. But that was not the case here.

So I am left to wonder. Why protect those who traffic in depictions of the abuse of animals and the like, but not protect the conscience of conservative Christians?

Comments

[Jonathan]

Prof. Shiffrin:

You mention:

"I am not sure whether it was part of the record that the Hobby Lobby’s 401 (k) plan has $73 million invested in mutual funds that invest in the very contraceptives to which they morally object! See here. I would like to hear an explanation of why the owners are morally precluded from offering insurance that includes certain contraceptives, but not precluded through their investments from making money off the sale of those contraceptives."

I think the distinction is this:

1. Most companies - and I do not think HL is an exception - contract with a third-party provider to provide investments. In other words, there is a Fidelity, a Schwab, or a Lynch behind the 401(k) that takes funds from the employees and invests them.

Are there "responsible" funds that refuse to invest in companies that produce birth control / abortifacient drugs? There are, but it is very difficult (and one suspects, more costly) to meet one's imposed fiduciary duty only offering such funds.

2. In the case of 401(k) funds, and even matching funds, they are given to employees and employees invest. The closer analogy here would be if HL gave their employees funds, and the employees bought their own insurance, with or without contraceptive coverage. However, while HL doesn't choose how its employees invest, it does purchase some (all?) of their health coverage.

3. In terms of the actual mutual fund investments, I believe that the $73 million is the amount overall invested, with some of it purchasing mutual funds that have some of their holdings in such companies. Snopes has a good article on this (http://www.snopes.com/info/news/hobbylobby.asp) as do other sites - and, here is a reply to Ungar on Forbes: http://www.forbes.com/sites/ryanellis/2014/07/01/hobby-lobby-owners-can-have-a-401k-and-first-amendment-rights/

[Steve Shiffrin]

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Thank you for the comment. I think the links you supply are worth reading (though the second seems overargued) and they complicate the picture. I could imagine
some employers saying that the fiduciary obligation as applied (on your understanding) to offer choices of mutual funds that are not socially responsible creates a religious burden.
Steve

[Tamara Piety]

Steve I guess it depends on your definition of "liberal." In the crude political terms of today's discourse I am a liberal, and I am definitely secular, but I don't find regulating or banning any of those things you describe problematic. So I not sure which part is the sticking point - the "secular" or the "liberal", but I don't know that we can sweep that broadly. And as you know I don't have much use for corporate social responsibility efforts since I think the evidence suggests they are, in the main, PR efforts to promote the company and not serious, moral undertakings. In the main business corporations are only as responsible as the law requires them to be, and even then they far too often decide that it is cheaper to disobey the law and suffer the fine than to comply. Adding conscience into the mix seems to me to be a bad idea.

But my main quibble with a Hobby Lobby is that the language in the opinion is fairly unequivocal that it is somehow illegitimate to distinguish between types of corporations, no matter how many times the opinion used the words "close corporation." It is is assuredly not a limited opinion in terms of the reasoning.

The idea that it is some how invidious discrimination to make a distinction between different types of organizational forms as to what sorts of powers, rights and obligations they may have is hard to square with the fact that they are creatures of law, not organic, moral subjects, and that such distinctions are rife in the law, starting with the tax code. All sorts of different rules apply to closely-held corporations compared to public corporations.

I think what is terribly dangerous about the opinion is not that it permitted a for-profit corporation to "exercise" religion (when, in contrast to a church, or a religious non-profit, that is not its organizational purpose), although I think that is likely to prove very difficult for corporate law, but rather the perpetuation of this anti discrimination meme. Already claims have been made in several court that this or that fairly pedestrian regulation or ordinance violates Equal Protection because it singles out a particular types of corporation for different treatment. If you take that argument seriously (as a judge in Missouri did) it is difficult to know what regulation of commerce might not be vulnerable. That seems to me very bad indeed. The Missouri judge compared some St. Louis ordinance which attempted to limit what sort of vendors the City could deal with on the basis of their energy policies as as akin to Romer v. Evans.

I am less impressed with the Greens' sincerity given, as you say, I think it emerged from a corrupt process, the rabid, anti-Obama sentiment. For instance, this business of closing on Sundays apparently only started in 2000, even though the business was founded in the 70s. Now that does not preclude the possibility that the Greens are just growing in their faith and learning new ways to express it. But the Sunday closing thing seems to have been used as a marketing tool as well.

Should we condemn doing well by doing good? Not necessarily. But I think the women who have seen their constitutionally protected right burdened and a benefit of a validly enacted law of general application, one that as you say would provide them with a critical element of reproductive control that might otherwise be priced out of reach, disregarded inclines me to think that even if we concede their sincerity and the burden that the Greens' burden is less than that they are imposing on their female employees. I don't think the employment relationship should grant as much power to employers as it currently does. But I don't think it should add birth control decisions to the mix.

[Steve Shiffrin]

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Tamara
Terrific comment. As you probably would guess, I agree with most of what you say and think it is very well argued. Just a few comments.

In using the term liberal, I may be concentrating too much on the ACLU and the majority of First Amendment scholars. I think of my position on free speech and
yours as a position of the left rather than liberal , but I recognize that some would characterize this as a dispute among liberals.

As to my position on free exercise, I regard that as part of a dispute in liberal politics (despite the fact that most supporters of Hobby Lobby are on the
right People like Tom Berg, Susan Stabile, Perry Dane are certainly not associated with the right); I do not think of my position as likely shared by many people who are ordinarily left of liberals.

I entirely agree with your view of corporate social responsibility.

I also strongly agree with your argument that the anti-discrimination theme in Hobby Lobby re distinguishing between corporations is indefensible and should
arouse some concern that it will find resonance in problematic ways.

But I do not think the constitutional rights of woman are burdened by the Hobby Lobby decision. I also think they will have statutorily guaranteed insurance
for contraceptives (which under a just constitution would be a constitutional right). If I did not think so, we would be on the same side on this issue.