The Real Problem with the Hobby Lobby Decision

There are lots of things one might say about the Supreme Court’s immensely wrongheaded decision allowing closely-held corporations  to deny birth control coverage to female employees in contravention of the corporation’s “sincere religious convictions.”

We could point to the hypocrisy of an owner who buys lots of merchandise from China, with its mandatory abortion/one child policy, but whose religious sensibilities recoil from offering birth control to female employees who want it.

We could note that, thanks to the Administration’s willingness to accommodate religious paternalism, the costs of coverage didn’t even come out of the corporate pocket–the insurers paid it. How does that “burden” the corporation?

We could certainly consider how this decision fits into the broader backlash against equal rights for women that has characterized American politics for the past decade. Reliable birth control gives women control of their lives, and it’s clear that a significant number of men resent anything that promises women personal autonomy.

We could observe, as one of my sons did, that America is devolving into feudalism–that this case is just one in a series of recent policies and judicial decisions favoring the rights of the powerful over the rights of their serfs. And we could couple that observation with growing dismay over the attribution of “personhood” to entirely fictional beings called corporations. Legal constructs created to facilitate economic activity have now been invested with freedom of speech and religion. (Ironically, this case confers religious rights on legal fictions while taking them away from real, human women.)

And we could–and should–point out that the Supreme Court doesn’t really have the final word: we serfs–i.e. consumers– do. Any woman who shops at Hobby Lobby after this is a traitor to her gender. There may not be legal recourse from a Supreme Court decision–at least, not until or unless we get better Justices and this decision is revisited–but we can certainly encourage fair-minded folks to boycott the theocratic corporate “person” called Hobby Lobby.

All of these thoughts–and some not fit to transmit–went through my head when I learned of the decision. But what really struck me was a warning from a 1992 book by Jane Jacobs. The book was Systems of SurvivalA Dialogue on the Moral Foundations of Commerce and Politics. It’s a slim volume, and an easy–and fascinating–read. I recommend it. The basic premise was that once we recognize the universal rules of moral conduct (“don’t steal, don’t lie, etc.) there are two very different moral “systems,” a commercial system and a “guardian” or governmental system, with rules that make sense only within the imperatives of that system.

When you apply the moral rules developed for one system to activities properly within the jurisdiction of the other, you really screw things up.

Corporations are not inherently good or evil; they are simply a useful fiction. A line of cases that invests them with human attributes is worse than perverse; it’s dangerous.

Feudalism was bad enough when the Lord of the Manor was human, and would die.


  1. I’ve heard from reliable sources, and have not yet had time to confirm on my own, that the SCOTUS ruling is all based in federal statute so Congress can change it. Remember this when voting for your favorite federal political candidates this November…

  2. I have to say I am not surprised at the Hobby Lobby decision. I have never shopped at Hobby Lobby. I will not in the future. This garbage about strongly held religious beliefs is just kneeling to the Rabid Self-Righteous Bible Thumpers. Did SCOTUS come up with test to verify this Strongly Held Religious Belief?? Was it True-False, Multiple Choice, or essay???

    Obama brought this problem on himself by refusing to push the Public Option and take the Medical–Insurance equation out of Corporate hands.

  3. I agree completely with each of your well-made points, Sheila. And I especially agree that any woman or man who supports equal rights for all who shops at Hobby Lobby is a hypocrite. BOYCOTT HOBBY LOBBY!!

  4. Corporations have more rights than citizens. Too angry for more thoughts now.

  5. I’m literally sickened today by the completely erroneous decision I’ve admired the legal reasoning of may dx courts and individual justices even when in opposition but this is beyond my tolerance. I cannot find it possible that anyone thinks a legal construct has greater rights as a corporate citizen than actually living breathing human beings. Further I cannot help believing this is only a beginning. The vast number of ways an employer may already think they have some granted personal religious autonomy at the expense of anothers religious autonomy in decision making is so disturbing it will take me a couple days to pull myself together.

    I’m already considering where and how to be effective in overturning this nonsense. First thing is Gotv. Sizzling rage.

  6. I just found a reply to my Facebook comments on this issue from a fool who informed me that the companies OWN the insurance policies they carry; but they do not own the health care providers who actually provide contraceptives. How do you reach someone with this mind set.

  7. The decision rests on the Religious Freedom Restoration Act passed nearly unanimously by Congress (only 3 dissenting votes in the Senate ) and signed into law by President Clinton in 1993. Congress included a “corporation” within the meaning of “persons” protected by a law which the majority acknowledged provides broader protections to persons than the Court ‘s own interpretation of the Free Exercise Clause. Intellectual honesty requires you to explain that in your diatribe against the majority opinion of the Supreme Court.

  8. It’s getting harder and harder for me to find places to shop! Stores that refuse to pay minimum wage, stores that won’t support equal rights, stores that abuse their employees. When is it going to change?

  9. Gary Welsh, you’re mistaken I’m afraid. The Religious Freedom Restoration Act does not define “person.” The Court turned to the Dictionary Act for its definition of “person,” which includes corporations. Justice Ginsburg, in her dissent, noted that the Dictionary Act is to be used only when a term’s meaning isn’t clear from the context. The RFRA applies to persons “who exercise religious beliefs.” Since we haven’t seen a corporation walk into a church, synagogue, or mosque in the U.S., it doesn’t seem likely that the Congress thought the term “person” would include corporations.

  10. All those in favor of sex say “aye”. All those in favor of babies by plan say “aye”, those in favor of babies by accident say ” nay”. I do believe the “ayes” have it.

    So what’s this about?

    It’s about the symbolic castration of government. At least democratic government, with it’s propensity towards egalitarianism. Or freedom as it’s sometimes called.

    Hobby Lobby oligarchs need to demonstrate that there is a level of business success, read wealth, that entitles the holder to decide things for others.

    I’m pretty sure what I would say if face to face with someone who felt an entitlement to run my life granted by his wealth. It would not be pretty or, probably, printable. And, honestly, while saying it would be cathartic, my use of the polls and free markets to render him (them) impotent is probably more effective.

  11. Bill, Congress is presumed to know that when it chooses not to define an important term like “person” in a statute it enacts, then the courts will rely on the Dictionary Act it implemented. Even HHS effectively included nonprofit religious corporations in its regulations implementing the ACA by carving out an exemption for them. As the majority explained: “This concession effectively dispatches any argument that the term “person” as used in RFRA does not reach the closely held corporations involved in these cases. No known understanding of the term “person” includes some but not all corporations. The term “person” sometimes encompasses artificial persons (as the Dictionary Act instructs), and it sometimes is limited to natural persons. But no conceivable definition of the term includes natural persons and nonprofit corporations, but not for-profit corporations. 20 Cf. Clark v. Martinez, 543 U. S. 371, 378 (2005) (“To give th[e] same words a different meaning for each category would be to invent a statute rather than interpret one”).

  12. I wonder if HL’s religious convictions will prevent it from begging for a government bail-out when its combination of poor employee relations and shoddy merchandise drive it to bankruptcy. There aren’t enough religious scrapbooking zealots to keep it in business when the death spiral begins. The local HL is already a ghost town.

  13. The real problem with SCOTUS is that they are appoited for life; they can make decisions regarding issues that are none of their business, rule against the Constitution and take away our rights and not worry about losing their job or being voted out of office. They are old men who reatain old men ideas from the last century when it concerns women; our pay levels, our careers, our voting rights, our medical decisions, our child bearing – or NOT bearing – et al. Who’s to stop them?

  14. Thanks for the link Pete!


    The most we can hope for it seems is the continued GOP platform of bigotry, misogyny & general asshattery undoing any real chance at the White House for another primary election cycle or two. I’ll be assisting in as many Gotv efforts as possible in 2016

  15. Last week SCOTUS ruled that we can’t be blocked from loudly, angrily, even viciously protesting Hobby Lobby from public streets and walkways. We should exercise that power (at least until SCOTUS rules that protest only applies to if the target is women seeking abortions).

  16. Join me outside Hobby Lobby to counsel Hobby Lobby shoppers to put down their wicked ways and shop at Michael’s for thei craft supplies. No need to worry, we can stand as close to the store as we want.

  17. Get the facts straight. Congress never passed a law mandating health insurance coverage for contraceptives that cause a fetus to be aborted. That was an entire invention of the Obama administration by executive fiat after the passage of the ACA. It was never a part of any federal law passed by Congress. The administration then used the issue as part of its meme that people who opposed the mandated coverage were engaged in a war on women. The ACA’s mandate was to cover medical treatment classified as preventive care for women, not pay for abortions. Explain to me how getting an abortion is preventive care, except for those rare circumstances where a pregnancy poses a risk of death or serious injury to a pregnant woman.

  18. Every woman risks death from pregnancy and delivery. Most don’t die from either, but few know before pregnancy how their body will react. Many woman suffer various health threats during pregnancy including gestational diabetes, high blood pressure, toxic reactions, blood clots, and more. More women know their risks with the 2nd pregnancy if they survived the first.

    How a corporate family’s wishes outweigh the life and death medical decisions of a woman employee and HER family and THEIR religious beliefs is beyond my comprehension – especially when the corporate family wasn’t paying for such coverage and had questionable standing to bring suit.

    I have an objection to Supreme Court Justices who use their own religious preferences to justify court decisions that don’t mesh with my own religious views. I hope they have women in the family who zealously ‘educate’ them.

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