Friday, December 6, 2013

Corporate Religious Freedom

In light of our last post, on heroically standing up to tyranny, I would like to recognize the heroes at Hobby Lobby who are standing up against the HHS mandate infringing on their religious beliefs.
The Hobby Lobby case is one of two 2014 Supreme Court cases relating to the mandate for providing insurance to employees that includes contraception—including abortifacients. (The other is Conestoga Wood Specialties, Mennonite cabinetmakers in Pennsylvania.) The misnamed Affordable Care Act details what must be included in various health insurance policies, and birth control is among the requirements—for everyone, of every gender, age, and circumstance. Under pressure, exceptions were carved out for religious institutions, dithering over a fair amount of minutia deciding things like whether a parochial school run by a church could be exempted, or if only employees of the actual church could be exempted.
A Hobby Lobby store front
photo from here
The government’s knee-jerk response is based on its perceived interests first and foremost, regardless of the effect on individuals and their beliefs. The first attempt at appeasement to church employment was, “You don’t have to pay for contraceptives, if that is against your beliefs; you simply have to pay for policies that will offer it.” Um. That’s still paying for it.
We think the decision is more or less settled for churches, which have a declared religious purpose. But religious institutions aren’t the only places you find religious people. And where you find religious people, you may encounter those opposed to paying for someone else’s pregnancy avoidance. And you’re especially going to find opposition if the pregnancy “avoidance” products include after-fertilization-of-the-egg types, which can be considered abortion.
Such people are among the founders and leadership of Hobby Lobby, the large, national craft store chain out of Oklahoma. They are self-declared religious people. Their stores are always closed on Sundays, in honor of their belief in keeping the Sabbath day holy. (The Hobby Lobby story is recounted in founder David Green’s book More than a Hobby.)
So the question arises: Do persons lose their right to religious freedom when they enter into commerce? Since pretty much everyone does enter into commerce, we probably need to narrow that down to those who do business as an entity, rather than as they themselves individually—which is still pretty wide reaching: DBAs, limited partnerships, nonprofit organizations, companies, firms, privately held corporations, and publicly traded (stock selling) corporations. Plus probably other business structures I’m not thinking of.
The opposition chooses to word this question a little differently: How can a corporation have religious beliefs? It’s not a person. They’re just trying to dodge their responsibility to pay for full health care coverage. (And LA Times editorial titled it “The Hobby Lobby Dodge.”)
So I’m looking at my personal experience, which is very small scale, to see if it translates. Several decades ago I had a writing and editing business that, for various reasons, worked better if I incorporated, had clients pay the corporation, then had the corporation pay me as a contractor. The corporation required three principals: that was me, my husband, and my dad. We met the requirements of the law to be a corporation, but in every respect that was important, I was the corporation: I was the one doing the work, making the decisions, and earning the money that passed through the corporation to me as a contractor. Was the corporation something other than me? On paper, but not in reality. If the corporation had been required to write things I wasn’t willing to write, like porno scripts for example, the corporation would have turned down such work, because I was unwilling to do it.
Suppose there were a government requirement to take on work I found morally objectionable. There isn’t; it seems ridiculous to contemplate—but then having government tell any business what it must buy for its employees seemed ludicrous just a few years ago. So, let’s suppose there were such a requirement of my little corporation. Would I have to do it? My religious beliefs and personal moral code prohibit me from doing so. Under government coercion, I still couldn’t do it. Having government say, “You don’t have to do the work that goes against your beliefs; it’s only required of the corporation, which doesn’t have religious views,” doesn’t help me.
Hiring some other contract writer to do the work wouldn’t even solve the issue for me; I couldn’t have such work produced by the corporation that I control.
When government coerces a commercial entity, the people with controlling interest in that commercial entity have two options: comply, or shut down. Hobby Lobby has already said that, if there is no other recourse, they will shut down rather than comply.
First, of course, comes the question of whether the government can coerce. It (which is supposed to be “We the People,” but sure seems to have become some other monstrous entity) can and does coerce—unless prevented. Government is power. Our Constitution places limits on the federal government, delineating the specifically allowed powers—but those limits have been stretched beyond the point of elasticity. We are left to rely on a hope that unelected judges will say, “No, you can’t do that.”
The Supreme Court is the last resort for Hobby Lobby. They already won in federal appeals court, but the Obama administration isn’t satisfied with the result, so Hobby Lobby must fight on. I appreciate their heroic willingness to do so. Personally, I see Hobby Lobby as my favorite “toy” store; I adore using the 40% off coupon I can make appear on my phone every time I shop there. Having them shut down would be tragic for me, but more so for the thousands of employees, and the additional thousands making products sold there.
In the case of Conestoga Wood, they lost in appeals court on grounds very similar to Hobby Lobby. So the Supreme Court was looking at split decisions, as well as additional dozens of similar challenges to the mandate, when they decided to take on the role of final arbiter.
Back in January 2012 the SCOTUS ruled unanimously in favor of religious freedom in the Hosanna-Tabor case.  But the ruling included recognition that it was a church making its hiring decisions. It’s less certain this time. There is the question of whether a commercial enterprise is comprised of people with religious and other guaranteed rights.
Remember back during the last presidential campaign, in 2011, when media had a jolly time laughing at Romney for stating that a corporation was its people? The Supreme Court had already agreed with him concerning political donations in the Citizens United case, in 2010, which has left the tyrannists gnashing their teeth ever since.
So the Supreme Court has found that businesses have political speech rights. If they find that businesses also have religious rights, then the government can only supersede those rights with a compelling reason. (An example of a compelling reason might be that, if a religion believed in punishing rape victims with death for allowing themselves to be made “unclean,” the government would see that as a violation of murder laws and punish accordingly, regardless of the religion’s beliefs.) That seems to me a high burden in this case. They must convince, not only that there is a compelling interest in the government’s protecting all rights to the use of all contraceptives, including abortifacients; they must convince that there is a right to have such products paid for by whomever the government burdens with the assignment. If we didn’t find ourselves in this parallel Obama-verse, we would shrug off such arguments as piffle.
The Court will hear arguments in spring 2014 and make their ruling probably in June. Let us all pray that the justices have the wisdom to recognize that entering into commerce is not a forfeiture of our God-given right to make moral choices.

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