Hobby Lobby: The Principles of Principals

There are certainly many troubling aspects of yesterday’s Supreme Court ruling in the Hobby Lobby case.  That the majority opinion rests on upholding the 1993 Religious Freedom Restoration Act has been rightly criticized, particularly by democratic authors of that bill. The protection of religious freedom for individuals was never intended to extend to for-profit corporations, they say; and certainly this expansion of the RFRA has implications that go well beyond the sphere of a couple of franchises.  I am sure that I’m not alone in feeling that SCOTUS has awarded corporate owners far too much latitude to engage in discriminatory practices, but I also feel it’s worth noting that this decision comes at a terrible time, when some of the wealthiest and most powerful corporations trade in a new commodity comprised of personal information.

If under the 1993 RFRA, an employer can refuse to pay for coverage of contraception for female employees, why does it not allow an employer to simply fire a woman for some other sin against said employer’s religious beliefs?  After all, the employer supports his employees with a salary, so why should he not be allowed to sever that support upon learning that a woman in his employ is pregnant out of wedlock or has terminated a pregnancy while in his employ or has bought contraception on her own — with the money he pays her dammit!  Sound crazy?  Well, this is a ruling predicated on crazy, and if RFRA can trump one federal law, why can’t it trump another?

If in fact this is the slippery slope on which we now stand, how long do we think it will take for employers (sincerely or insincerely “religious”) to acquire the kind of personal information that is implicitly now part of their purview?  The answer to that is no time at all.  Google, Facebook, Twitter, et al have been bundling whatever personal information we share into commodities bought sold by data brokers. Bought and sold by which entities?  Searchable according to what organizing principles?  I know from experience that, even pre-Internet, it took various companies about ten minutes to know my wife was pregnant with our first child and to start sending us coupons and other offers for baby products.  How long before networked systems and social media reveal a woman’s pregnancy termination or some other physiological, social, or sexual information that is none of an employer’s damn business?

Incorporation provides a number of opportunities and establishes a number of responsibilities, all of which are predicated on the fact that the business becomes an entity separate from its principals.  This ruling on Hobby Lobby invests non-human entities with the right of religious freedom while disenfranchising actual human beings from a newly enacted right to healthcare. That this event coincides with the loss of privacy and the commoditization of personal data ought to scare the hell out of everyone.

© 2014, David Newhoff. All rights reserved.

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  • Thank you for illuminating the bigger meaning of this situation. I’m afraid to even post a link or comment on my fb page or mention it in conversation because what I see that so many people I really truly adore are doing so and their opinions on this matter scare the dark into my heart. Sad to know I have to watch what I say around people who otherwise in every other intercourse I’ve had with them are fun, lovely, supportive, smart and….women. Sad to see the personal preferences of what is really a narrowcast group of people with political and financial clout-who don’t have a need to be protected from having such thinks taken from them….assume that everyone is and should be like them . Sad to see again that this same group of life loving and avowing supporters of this law and others like it spend more time and money fighting for things to go their way ….instead of funding women’s clinics, women’s therapy centers, child rescue shelters, foster care oversite orgs, women’s shelters, or other brick and mortar real world things that make a difference in the lives of women who have unwanted unexpected children and those who don’t want to. Our world has made a twisted practice of reinterpreting phrases like , ‘freedom of speech’, ‘obscenity laws’, choice, ‘national security’, tribunal vs trial, combatant instead of defendant, hate crime, redundancy. How do you spread the truth when so many others are waging to defend their right to shut it down?

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  • Would your opinion of the outcome of this case change one iota if Hobby Lobby were not a corporation? In other words, do you think that an individual operating as a sole proprietor of craft supplies business should be able to refuse to supply certain contraceptives in the health plan he gives to employees? I suspect that you do not. I suspect that you think that no one – whether a legal fiction or a natural person – should have that right. If I’m mistaken, please correct me. But if I’m not mistaken, then these complaints about corporations are a distraction from your more fundamental argument.

    Arguing that it’s absurd to think that a corporation can exercise religion is helpful to you, so I don’t expect you to leave that arrow in your quiver. But that question of corporate law is not really what you’re concerned about. You’re making a more fundamental argument: no employer of any kind should ever be able to restrict the contraceptive opinions mandated by law or regulation.

    • David Newhoff

      Actually, in one of my responses to Anonymous, I indicate that I believe a sole proprietorship is different. I don’t personally like the idea of an employer making this choice, but I actually do view the matter differently if the organization is not incorporated. Incorporation provides certain advantages that necessitate severing the business entity from the individuals who run it, and those individuals should not be entitled to benefit from those advantages and simultaneously treat the corporation as extensions of themselves. That’s just my opinion, and I hope it answers your question.

  • Thank for your reply, and for your candor. I’d like to explore the bargain you’ve proposed, if I can.

    As I understand it, your argument is that if individuals wish to accomplish a business purpose using the corporate form and limiting their liability, they must sacrifice some of their ability to operate according to their religious beliefs. Okay, but where do you get the idea that such a bargain is a feature of corporate law? Do you believe that when states wrote their business associations laws, they intended only to allow strictly secular for-profit corporations? I’m not saying (for now at least) that a state necessarily couldn’t do that, but do you think that’s the bargain that has been struck?

    As long as we’re talking about this bargain, do you think it would be lawful for the government to prohibit corporations from publishing a statement reading “There is no God but Allah, and Mohammed is his prophet”?

    How far are you willing to go with this bargain? Would you also say that the bargain includes giving up speech rights? How about freedom of the press? The New York Times Company is a corporation. Couldn’t we say that by incorporating, the deal is that they give up freedom of speech and the press, and they can no longer publish opinions in the New York Times? How about General Electric, which runs MSNBC, or any record company organized as a corporation? Perhaps they give up their right to be free from illegal searches and seizures, too, if they want to enjoy the benefits of incorporation.

    So in summary, what I’m asking is this: (i) what makes you think that giving up religious rights is part of the bargain for limitation of liability, and (ii) why does that bargain extend only to free-exercise rights, and not other rights?

    • David Newhoff

      CF –

      You’re essentially posing the same question posed by Anonymous, albeit in different language, and I’ve been considering the matter in between the cracks for the last day or so in order to respond to him/her. In the simplest terms (and at the end of a long day), my opinion in this case is that a corporate (non human) entity has been granted permission to ignore or selectively obey a settled law on the grounds that its (human) principals have specific religious beliefs. As such, I can pose the same kind of hypotheticals that you pose above. Should a corporation of any size be allowed to fire gay employees the day its management is taken over by born-again Christians who simply cannot abide homosexuality? To do so would be a violation of existing anti-discrimination law, which exists because some members of our society believe they have the right (even obligation) to discriminate. But we Americans answer to what I believe is a higher principle — secular law, which supersedes your opinion or mine or the neo-Nazi down the block. We enforce fairness, if you will, because individuals are not necessarily fair.

      Corporations by definition cannot practice religion, which is different from the fact that certain organizations are in the “business” of religion. GE does not believe in God. Neither does Hobby Lobby. These are legally organized entities that do not possess human qualities anymore than my coffee table does; and despite the fact that a corporation can be run according to certain values, those values, whether they come from scripture or the PR department, should not trump state or federal law, especially those laws which protect the rights of the myriad human beings in the corporation’s employ.

      Admittedly, speech gets a little trickier to talk about because it is the only First Amendment right universally practiced by all people and by corporations. But I am admittedly too tired to fully address the matter this evening. Thank you for your reply.

      • So making one person blaspheme is immoral, but making eight people blaspheme is just the American way?

      • David Newhoff

        Will, I assume you’re referring to sole proprietorship, but the truth is that regardless of my own opinions about the concept of blaspheme, the distinction occurs when a new entity is created. That entity is not a person and, therefore, cannot have a religion.

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