Tag Archives: Hobby Lobby

The Danger Of Fundamentalism

Ah…religious belief in its infinite varieties…

Media outlets have reported the death from Coronavirus of a pastor who pooh-poohed the pandemic as “mass hysteria. The Reverend Spradlin was visiting New Orleans with his wife and family to ‘wash it from its sin and debauchery.”

Better he should have washed his hands.

Then, of course, we have corporate religiosity from the ridiculous and dependably theocratic major shareholders of Hobby Lobby. (I’ve noticed that their religious convictions always seem to be those that save them money…). According to a report from Dispatches from the Culture Wars,

It’s bad enough that Hobby Lobby is refusing to follow the CDC’s recommendations and remaining open because the wife of the owner had a vision from God; they’re now making it worse by denying paid sick leave to employees who are ill, which dramatically increases the risk of spreading the coronavirus to both employees and customers.

Hobby Lobby’s sick workers will be required to use personal paid time off and vacation pay or take an “unpaid leave of absence until further notice.”

So if an employee doesn’t have any vacation time left and gets sick, they have to choose between going to work while sick or not being paid. Inevitably, some will choose to go to work because they need the money and that means more transmission of their illness, whether it’s the coronavirus or some other condition, to other employees and to customers. I guess that vision from God included a command to put lives in danger. But of course, they’re “pro-life.” Whatever the hell that could possibly mean.

As reprehensible as Hobby Lobby’s insistence on imposing the owners’ religious beliefs on their employees, it obviously isn’t going to do the extensive damage being facilitated by the theocratic throwbacks who support Trump. The New York Times ran an article recently about Trump’s dependence on the Religious Right as a voting bloc and the policy consequences of their extreme hostility to science.

Donald Trump rose to power with the determined assistance of a movement that denies science, bashes government and prioritized loyalty over professional expertise. In the current crisis, we are all reaping what that movement has sown.

As the article notes, hostility to science has characterized religious nationalism in the United States. Today’s “hard core” climate denial comes almost exclusively from religiously conservative Republicans.

And some leaders of the Christian nationalist movement, like those allied with the Cornwall Alliance for the Stewardship of Creation, which has denounced environmental science as a “Cult of the Green Dragon,” cast environmentalism as an alternative — and false — theology.

This anti-science “thinking” hobbles America’s response to the coronavirus crisis.

On March 15, Guillermo Maldonado, who calls himself an “apostle” and hosted Mr. Trump earlier this year at a campaign event at his Miami megachurch, urged his congregants to show up for worship services in person. “Do you believe God would bring his people to his house to be contagious with the virus? Of course not,” he said.

Maybe Reverend Maldonado should read up on what happened to Reverend Spradlin. So should the Reverend Rodney Howard-Browne. Howard-Brown occupies the pulpit of The River at Tampa Bay Church in Florida. This “pious” man mocked people concerned about the disease as “pansies” (do I detect a smidge of homophobia??) and insisted he would only shutter the doors to his packed church “when the rapture is taking place.”

As the Times noted

Religious nationalism has brought to American politics the conviction that our political differences are a battle between absolute evil and absolute good. When you’re engaged in a struggle between the “party of life” and the “party of death,” as some religious nationalists now frame our political divisions, you don’t need to worry about crafting careful policy based on expert opinion and analysis. Only a heroic leader, free from the scruples of political correctness, can save the righteous from the damned. Fealty to the cause is everything; fidelity to the facts means nothing.

There have always been people who desperately cling to “bright lines”– who see every issue as  black versus white, even as modernity ushers in ever-expanding areas of grey.

Whether adherents of fundamentalist religions, or political “true believers,” they pose  a clear and present danger to reality, and to the rest of us.

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Hobby Lobby Redux

Continuing our discussion of RFRA and the expansion of (some people’s) “religious liberty”…

File the first paragraph of this article under “The Notorious RBG told you so.”

When the U.S. Supreme Court ruled in 2014 in Burwell v. Hobby Lobby that the owners of secular for-profit businesses could challenge laws they believed infringed on their religious liberties, civil rights advocates warned that the decision was just the start of a new wave of litigation. On Thursday, those predictions came true: A federal district judge in Michigan ruled that a funeral home owner could fire a transgender worker simply for being transgender.

The facts are evidently not at issue. Two weeks after the employee notified the employer that she would be beginning to transition, the employer–who owned the funeral home–fired her for “engaging in behavior offensive to his religious beliefs.”

In September 2014, the Equal Employment Opportunity Commission (EEOC) filed a lawsuit on behalf of Stephens, arguing the funeral home had violated Title VII of the federal Civil Rights Act, which prohibits employment discrimination. According to the EEOC, Stephens was unlawfully fired in violation of Title VII “because she is transgender, because she was transitioning from male to female, and/or because she did not conform to the employer’s gender-based expectations, preferences, or stereotypes.”

Lawyers representing the employer argued that the Religious Freedom Restoration Act (RFRA) protected their client from legal liability, and a federal court agreed, holding that paying damages for unlawfully discriminating against an employee could amount to a substantial burden on an employer’s religious beliefs. 

Well, yes. That’s the purpose of damages. If I fire an African-American employee simply because he is African-American and my religion teaches that African-Americans are inferior (an argument made by many Southern shopkeepers in the wake of the 1964 Civil Rights Act), I have violated his civil rights and I will owe damages that will “burden” that belief.

If I refuse to promote a woman to an executive position for which she is qualified because my religion teaches that women should be submissive, I can be sued for damages that would “burden” my religious beliefs.

Damages are awarded to compensate people who suffer losses when their rights are violated. They are intended to “burden” discriminatory behavior–whatever the motivation.

It’s one thing to exempt churches and religious organizations from laws of general application that are inconsistent with their theologies. It is quite another to say that owners of secular businesses can hire and fire employees or refuse to accommodate customers based upon the religious preferences of the owner.

I find it hard to believe that this court would have reached the same conclusion had the person fired been Jewish or African-American, whatever the employer’s church preached. Although attitudes about LGBTQ Americans have changed dramatically, there is still substantial prejudice against the gay community, and claims of “religious liberty” that would be given short shrift if used to justify discrimination against blacks or women or Jews are somehow seen as more meritorious or “sincere.”

They aren’t. And the likely consequences of this ruling, if it is not overturned, are stunning:

Think of the implications, should other courts follow this lead. Conservatives have, in the past, launched religious objections to child labor laws, the minimum wage, interracial marriage, and renting housing to single parents—to name a few. Those early legal challenges were unsuccessful, in part because they were based on constitutional claims. Hobby Lobby changed all that, opening the door for religious conservatives to launch all kinds of protests against laws they disagree with.

In her Hobby Lobby dissent, Ruth Bader Ginsberg warned that the Court had ventured into a minefield.

Would the exemption…extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations[?]…Not much help there for the lower courts bound by today’s decision.”

She was prescient.

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Corporations and the First Amendment

We live in an era when everything–every case decided by the Courts, every law passed by Congress or a state legislature, every encounter between police and citizens–generates frightening headlines, hysterical tweets, and multiple emails from activist organizations exhorting recipients to take action (usually involving signing a petition and sending money).

So it’s easy to become jaded, to attribute the decibel level to partisanship, or a lack of perspective or analysis. I know I increasingly find myself thinking “just chill out. This isn’t the end of the world. Get a grip.”

Some things, however, prove to be every bit as worrisome as the scolds and screamers predicted. A grim assessment from a recent Harvard study suggests that the consequences of Citizens United and the line of cases leading up to it have been even more damaging than we were warned at the time.

Some of the study’s key findings include

While the First Amendment was intended to protect individual freedom of religion, speech and assembly, as well as a free press, corporations have begun to displace individuals as its direct beneficiaries. This “shift from individual to business First Amendment cases is recent but accelerating.”

Over time the high court has shown an increasing willingness to rule in favor of corporate interests, as a result “reducing law’s predictability, impairing property rights, and increasing the share of the economy devoted to rent-seeking rather than productive activity.”…

The ability for corporations to obtain relief from the courts gives them incentive to “place bets not on new technologies or marketing strategies, but on legal and political ‘innovation’” to protect markets they have and exclude new entrants. This also has the effect of causing regulatory agencies to reduce their efforts, because enforcing existing laws becomes increasingly difficult….

American public discourse tends to be very bipolar and “zero sum.” Policies are either right or wrong, good or bad. A right accorded to X must mean diminished rights for Y.

In the real world, however, the goal of policy is more often than not to achieve an appropriate balance between or among competing interests, all of whom are entitled to have their rights respected. Most Americans would agree that businesses have the right to participate in the marketplace of ideas, and that the law should respect the fiction of corporate “personhood” in the contexts for which that personhood was originally created.

It is when Court decisions and legislative actions create troubling imbalances of power, we risk substantial damage to our social ecosystem. Cases like Citizens United and Hobby Lobby have upset that balance, empowering corporations while disempowering individual citizens.

“These findings present a challenge to the view, articulated by the majority and concurrences in Citizens United and Hobby Lobby, that corporations and other business entities should be understood ‘simply’ as aggregations or associations of individuals, and so should not be distinguished from them for purposes of First Amendment analysis,” the author writes in his conclusion, continuing: “The corporate takeover of the First Amendment represents a pure redistribution of power over law with no efficiency gain — ‘rent seeking’ in economic jargon. That power is taken from ordinary individuals with identities and interests as voters, owners and employees, and transferred to corporate bureaucrats pursuing narrowly framed goals with other people’s money. This is as radical a break from Anglo-American business and legal traditions as one could find in U.S. history.”

Sometimes, the decibels are appropriate.

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Sauce for the Goose, Sauce for the Gander

I love political theater.

First: In the wake of the Supreme Court’s poorly-thought-out Hobby Lobby decision, the Satanic Temple–based in New York, but evidently with congregations (covens?) elsewhere around the country–has sued for an exemption from “informed consent” laws.

According to ABC, Satanists believe in a woman’s right to get an abortion without having to listen to information its members see (correctly) as non-scientific. This is rooted in the group’s belief in a “scientific understanding of the world,” according to the press release.

Fair is fair–if devout Christian employers can’t be required to abide by neutral laws requiring them to provide their employees with birth control coverage, “devout” Satanists shouldn’t have to abide by laws that violate their beliefs.

Second: Texas has been the epicenter of “open carry” braggadocio. A group of inventive women–apparently tired of running into paranoid jerks carrying long guns on the streets and into the local Target–decided to make the point that just because something is legal doesn’t mean it’s a good idea.

And it’s apparently legal to go topless in Austin, Texas.

So when Open Carry Texas did one of its many open-carry “events,” the gun nuts were met with middle aged, almost-bare-naked ladies shouting “Boobs for peace!” (One of them also carried a sign reading “You realize that everyone thinks you’re overcompensating for your teeny tiny ‘gun,’ right?”)

Goose, meet gander…..

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Original Intent

Can you stand one more post on Hobby Lobby?

Over at Forbes Magazine, Rick Unger has challenged the basis of the decision–and the fiction that Scalia, et al, are “originalists”– by pointing to the Founders’ original conceptions of corporate identity.

After the nation’s founding, corporations were, as they are today, the result of charters granted by the state. However, unlike today, they were limited in how long they were permitted to exist (typically 20 or 30 years), only permitted to deal in one commodity, not permitted to own shares in other corporations, and their property holdings were expressly limited to what they needed to accomplish their specific, corporate business goals.

Put another way, every single investment bank on Wall Street, as we know it today, would have been illegal in the days of our founding.

And here is the big one —in the early days of the nation, most states had rules on the books making any political contribution by a corporation a criminal offence.

Indeed, so restrictive was the corporate entity, many of early America’s greatest entities were set up to avoid the corporate restrictions. Andrew Carnegie formed his steel operation as a limited partnership and John D. Rockefeller set up Standard Oil as a trust in order to avoid the restrictions placed on corporations. Yet, it is now apparently too much to ask that those holding strong religious views, such as the Green family who hold the stock of Hobby Lobby, do the same.

Of course, Scalia’s version of originalism has always been exceptionally malleable–one to be invoked or ignored depending upon the need to twist the matter at hand into ideological conformance with his preferred beliefs.

With respect to this “matter at hand,” however, I am increasingly of the opinion that Hobby Lobby will come back to bite the authoritarian derrieres of the male members of this court.  As Tim Peacock recently wrote at Peacock Panache:

[S]everal law experts believe the Supreme Court may have dealt a devastating blow to the corporate veil. Alex Park at Mother Jones reported on the new gaping hole in the corporate veil today stating in part:

“Now, thanks to the Hobby Lobby case, it’s in question. By letting Hobby Lobby’s owners assert their personal religious rights over an entire corporation, the Supreme Court has poked a major hole in the veil. In other words, if a company is not truly separate from its owners, the owners could be made responsible for its debts and other burdens.

‘If religious shareholders can do it, why can’t creditors and government regulators pierce the corporate veil in the other direction?’ Burt Neuborne, a law professor at New York University, asked in an email. That’s a question raised by 44 other law professors, who filed a friends-of-the-court brief that implored the Court to reject Hobby Lobby’s argument and hold the veil in place.”

In the above-mentioned friend-of-the-court brief, those law professors stated in part:
“Allowing a corporation, through either shareholder vote or board resolution, to take on and assert the religious beliefs of its shareholders in order to avoid having to comply with a generally-applicable law with a secular purpose is fundamentally at odds with the entire concept of incorporation. Creating such an unprecedented and idiosyncratic tear in the corporate veil would also carry with it unintended consequences, many of which are not easily foreseen.”

If one Court can pierce the corporate veil in order to protect a (highly selective exercise of) religiosity, a different Court can pierce it to obtain justice for litigants who might otherwise go uncompensated.

That’s the problem with outcome oriented judicial reasoning.

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