It’s About the Rule of Law, Not Religion

Okay–this will be my last effort to explain why I am so appalled by the decision in Hobby Lobby, and it has little or nothing to do with warring definitions of religious liberty.

If Hobby Lobby were a sole proprietorship or partnership, and the Court had ruled that the Free Exercise Clause gave the owners the right to disregard a law of general application based upon their religious beliefs, I might or might not agree with the decision, but I would  see the issue as one falling properly within a long line of jurisprudence.

But Hobby Lobby–“closely held” or not–is a for-profit corporation.

When people choose to do business using the corporate form, the law grants them certain benefits that are unavailable to individuals. Most significantly, they are shielded from personal liability. If someone sues Hobby Lobby and wins a huge judgment, they can recover from whatever assets the corporation owns, but they cannot “pierce the corporate veil” and take the owners’ personal assets.

That protection against personal liability is the main reason for the legal fiction we call a corporation, and it is meant to encourage people to go into business. In effect, the government says to potential entrepreneurs “If you’ll engage in economic activity, we’ll protect you from a significant measure of risk. You may lose the business, but you won’t lose your house.”

In return for that protection, however–in return for limiting both your risk and the amount that someone you may harm can recover–the public has a right to expect you will follow laws passed by Congress that are applicable to corporate commercial ventures, whether you like them or not.

The owners of Hobby Lobby want the benefits of corporate form, but not the obligations. Their argument was essentially that the rule they didn’t like shouldn’t apply to a company with “sincerely” religious shareholders.  They asked the Court to pierce the corporate veil and treat the company as a sole proprietorship, for this purpose only. (At one point, the majority explicitly noted that the company wanted to act in accordance with its owners’ religion without losing the benefits of the corporate form.)

The rule of law and the Equal Protection Clause both require government to treat equally-situated people (fictional or real) equally. In its ham-fisted effort to advantage certain religions (does anyone think the outcome would have been the same if a Muslim-owned corporation had wanted an exception from laws inconsistent with Sharia?), the Court’s majority has announced its willingness to apply the rules selectively and arbitrarily.

There are many things wrong with this decision, and Justice Ginsburg’s scathing dissent identifies most of them. But in my opinion, the damage done to the rule of law is the worst.



    Here is a “rule of law” situation that belies the level of understanding of the law by the 7th U.S. Circuit Court of Appeals dealing with a case in Indiana involving one same-sex marrige couple. Amy Sandler and Niki Quasney were not one of the couples married during that brief period of rational legality in Indiana; they have been fighting for legal recognition of their marriage due to the impending death of Ms. Quasney. Their marriage is the one same-sex marriage considered legal in the entire state of Indiana to allow Ms. Sandler to collect death benefits because Ms. Quasney is near death. Wll the holder of these death benefits agree and pay off or will they fight from the legal standpoint that the marriage is against Indiana law? I can’t remember the name of the spokesperson on Channel 8 news this morning who explained this decision as proof that the courts do “have a heart”. While I fully support the legality of their marriage and all others performed during the brief period of sanity in this state as well as all other couples who want to marry; I do not agree with picking and choosing between cases to make any exception.

    On to the the “Hobby Lobby Law” crap…if the above situation can result in one exception, can the courts find an exception in the “Hobby Lobby Law” decision. I’m sure they could find at least one case in the millions of women affected by this law whose life depends on the form of birth control that is being denied on a national level. Many have pointed out that there are 16 forms of birth control still allowed by this law; that is not the issue in question. That any business can make any medical decisions for employees based on their own religious beliefs is the issue. Fortunately I did not have to ask the City of Indianapolis for permission to have a hysterectomy, which in my case was a life-and-death decision.

  2. You have a lot of chutzpah in claiming the majority of the Supreme Court members failed to follow the rule of law. The fact is that it’s the Obama administration that has repeatedly interpreted its own law contrary to the written text of the statute whenever it suits its political ends. Professor Jonathan Turley, who is not one of the “right wing crazies” you lambaste on a your blog on daily basis has written about and testified before Congress extensively on what he calls an “Uber Presidency” under Obama where the President increasingly acts by executive fiat lacking no statutory authorization. The administration includes one form of corporation within its meaning of a person protected under the Religious Freedom Restoration Act for purposes of enforcing the ACA, nonprofit religious organizations, while claiming that closely-held corporations were excluded. The majority’s statutory interpretation is the only one that makes sense in the context of RFRA’s enactment, notwithstanding the inconvenience it has created for the administration’s efforts to force employers to provide health insurance coverage for contraceptives under the guise of “preventive services” for women. In its zeal to enact the ACA, Congress could have redefined a “person” for purposes of RFRA, which President Clinton signed into law in 1993 after it passed both the House and Senate with only 3 dissenting votes, but it chose not to do that because it didn’t want rank-and-file members to know when it voted on the ACA how the Obama administration intended to interpret “preventive services” lest it lose a few more Democratic votes needed for its passage. Nobody complained about RFRA’s interpretation by the courts prior to this opinion to apply to corporations until it got in the way of their political agenda under the ACA.

  3. Mary; my guess is he attended the GOP Voucher School of Religious Interpretation of Local and Federal Law. No longer a need to locate these schools south of the Mason-Dixon Line; anyone can get their degree on line.

  4. Personal insults seems to be the only way people on the Left can respond when their positions are questioned. There are well-accepted rules of statutory interpretation which the majority followed in this case. I don’t believe in making up the law as you obviously believe should be done whenever the result is different than you like. Your problem is with RFRA. If you don’t like RFRA, repeal the damn law. Don’t lambaste the judges who give congressional enactments precedence over politically-drafted regulations from a President who believes he’s above the law.

  5. ha ha Gary, you’re so livid, the posts are dripping in hatred. Why don’t you go back to watching faux spews and Rush the slut shaming man who keeps losing sponsors?

    This Hobby Lobby ruling has opened up a can of worms and you know it. Just admit you hate the President because he has nothing to do with this ruling. Congress passed the ACA and frankly, it’s not that great of a bill but it’s a start.

    I won’t get denied because of my pre-existing condition and I won’t go bankrupt either. You probably have excellent health care right? Well, good for you. The rest of us deserve it too. All of us. Women included which is why we are so pissed off about this mess.

  6. The issue should be, what right does government have to interfere in benefits private enterprise offers their employees. If employees are not happy with their medical benefits or any work related issue, they should be addressing those issues directly with their employer. At what point did the governing bodies determine that the American people no longer had the intelligence to determine what was right for them as individuals? Part of deciding where you wanted to seek a career was to weigh what that company had to offer. A major consideration was what medical benefits if any were available to you as an employee. It is up to you to decided what is acceptable as an individual, not the government deciding for you.
    Free enterprise means just that. The freedom of business to draw the best of the best employees by offering appealing salaries and all inclusive benefits or not. The choice has always been and still should remain intact.

  7. Contraceptives ARE preventive services – they prevent conception and implantation – both of which are necessary before one becomes pregnant.

    Birth control pills also treat a number of medical conditions. Some religious institutions oppose use of birth control pills even for life-saving medical treatments. It seems they are pro-life until birth only.

    Health insurance for all is very effective pro-life legislation. When Medicaid was enacted in the 1960’s, life expectancy for African Americans who were poor enough to qualify for Medicaid increased from their 40’s to their 60’s in a few years time.

    Hobby Lobby says they pay employees $10 an hour. That’s not enough to comfortably provide for a family, but if employees already have children, can’t afford more on Hobby Lobby pay, and can’t afford the only kind of contraception that is effective and medically tolerable for them (which Hobby Lobby’s insurance won’t cover), too bad. Taking that kind of family planning responsibility so necessary for our poorest families will be blocked by the CEO’s family which lives very comfortably. (I have to wonder if Hobby Lobby objects to prescription coverage of Viagra.)

    I would not aspire to force my religious beliefs on someone else – especially if that affected what medicine or treatments were permitted to them. Some would call that playing God.

  8. The Right of course never engages in personal insults. Rush Limbaugh on Sandra Fluke— “What does it say about the college co-ed Susan Fluke [sic] who goes before a congressional committee and essentially says that she must be paid to have sex — what does that make her? It makes her a slut, right? It makes her a prostitute. She wants to be paid to have sex. She’s having so much sex she can’t afford the contraception. She wants you and me and the taxpayers to pay her to have sex.”

  9. Gary: I have copied and pasted the section of Wikipedia definition of RFRA and how and why Congress did change the meaning of the term “person” in RFRA. They changed the meaning to incude corporations because they COULD and because they WANTED to…they have authorized themselves on this issue and many others as they have been doing since President Obama was inaugurated.

    It was held unconstitutional as applied to the states in the City of Boerne v. Flores decision in 1997, which ruled that the RFRA is not a proper exercise of Congress’s enforcement power. But it continues to be applied to the federal government, for instance in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, because Congress has broad authority to carve out exemptions from federal laws and regulations that it itself has authorized. In response to City of Boerne v. Flores, some individual states passed State Religious Freedom Restoration Acts that apply to state governments and local municipalities.

  10. Ladies, Louie … Well said.

    Some amongst us, feel no need to extend common decency
    to those who need it. The Right has an “I’m personally OK,
    so F**k everybody else” attitude.

    When is it going to end?

  11. Ginsburg’s dissent had two lines that sum up everything about this catastrophe…

    “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”

    “Approving some religious claims while deeming others unworthy of accommodation could be ‘perceived as favoring one religion over another,’ the very ‘risk the [Constitution’s] Establishment Clause was designed to preclude.”

  12. I don’t agree with Gary either, but what he says is thoughtful, well-stated, cogent and appreciated. We deal with troll-like behavior every time we read someone’s blog, so this is an opportunity for people to actually engage in insult-free dialogue. Let’s not blow it.

  13. Gary made a cogent point and one Alito relied on in his majority opinion. While it defies common sense., corps are deemed to have religious sensibilities that allow them to restrict their employees contraceptive options. Inconsistent with that position their religious sensibilities do not stop them from purchasing their stock from China or investing in the pharma that makes the contraceptives that they object to. But why apply an exacting standard to corporations.

    Personally I consider this decision more of a trend toward corporate oligarchy than any kind of religious freedom. If the company owners don’t want to use plan b they don’t have to. That’s religious freedom.

  14. Cheryl you said this: “The issue should be, what right does government have to interfere in benefits private enterprise offers their employees.”

    And that whooshing sound you hear is Sheila’s point flying right over your head. Sheila wrote this: “When people choose to do business using the corporate form, the law grants them certain benefits that are unavailable to individuals.”

    The state grants certain rights and freedoms to incorporated entities (disclosure: I am an incorporated business) and in exchange they have to comply with certain laws related to how businesses may act. If someone doesn’t want to follow those laws, it’s within their rights not to ever form a corporate entity or become a partner in one.

  15. I can appreciate anyone questioning how a corporation can be a “person” within the meaning of RFRA; however, when you look at the text of the statute and its statutory history, Alito’s reasoning was sound. RFRA doesn’t define a “person,” which by default means the Courts will look at how it is interpreted in the Dictionary Act enacted by Congress. That definition includes a corporation. More importantly, the Obama administration had already decided that one type of corporation, nonprofit religious organizations, was exempt from the ACA’s contraceptive mandate based entirely on religious grounds.

    So on the one hand the administration allowed that RFRA protected one type of corporation comprised of many members with varying and, arguably, some with questionable theological views but not the closely-held corporation owned by no more than a handful of owners. There are other examples in the civil rights statutes and elsewhere where a corporation is included within the definition of “person.” My point is that when Congress chooses not to define key terms when it passes laws like RFRA and the ACA, it throws open the door to the courts to second-guess the meaning ascribed to those terms by government regulators. Congress chose to enact RFRA 20 years ago and has had more than ample time to clear up any ambiguities and has chosen not to do so. That’s to say nothing of the fact that RFRA extends broader protections than that afforded by the Free Exercise Clause according to the Supreme Court.

    Your anger should be directed at Congress, not the Supreme Court, if you don’t like the result reached here. You may prefer the reasoning in Justice Ginsberg’s dissenting opinion, but she conducted her analysis in reverse, deciding the outcome she wanted to reach first and then developing a rationale for explaining that outcome. Justice Alito used a straight-forward statutory analysis and construction used by conservative and liberal justices alike. Would he have used a different analysis if that approach would not have achieved the personal outcome he desired? Perhaps.

    The ACA has been mired in partisan politics in the political branches and the judiciary. Lest we forget that Chief Justice Roberts voted in conference to strike down the ACA as unconstitutional and then mysteriously changed his position shortly before the opinion was to be released after someone leaked the conference vote to the White House and President Obama started making very public and thinly-veiled threats at the Court if it failed to uphold the ACA. His tax analysis theory made little sense and the opinion had quite obviously been written to hold the opposite way before he inserted a few paragraphs at the last minute to the surprise of his colleagues to belatedly reach a different result. I don’t recall liberals bashing Roberts at that time despite the internal inconsistencies within his opinion that left more people confused rather than instructed on the law.

  16. I keep thinking that the law clerks working on this one really blew it. Had they brought to the attention of all the justices that Hobby Lobby was investing in the very products they were basing their case on, could the justices have ruled for them? So many reasons to rule against Hobby Lobby; this should have been right at the top of the list.

  17. Gary, most of the liberals I know wanted single payer healthcare like the rest of the western world offers to their citizens but we were stuck with the Heritage Plan (Romneycare) instead. We believe that healthcare shouldn’t be based on employment. You can thank your conservative colleagues for the ACA because their demands were met.

  18. It’s amazing, Two retail stores, both corporations.

    One can refuse contraception devices to it’s employee’s.

    the other …

    Can only ask patrons not to bring concealed weapons
    into the store. (Target, Texas)

    Does the 2nd amendment override a private corporations
    right to impose rules and regulation for entering the store
    with a weapon.

    (They can request that patrons do not bring in food or drinks
    to consume while browsing, why not weapons?)

  19. I don’t read much addressing Justice Ginsberg’s point. That the logic used in the majority opinion will lead to other situations which are clearly outside of the intentions of the law. Or the dictates of common sense.

    What this is really about is the ongoing damages to the country caused by the scourge of conservative culture bought by oligarchy’s skilled financial investment in the use of mass media to influence gullible people. Who appointed the Justices who formed the majority opinion?

    Those “investors” who inflated the popularity of their self serving financial interests by manipulating those who are educationally and/or culturally least able to defend themselves and their country is a recently discovered flaw in democracy.

    The saving grace may be demonstrated in democracy’s slow time lagged recovery from the assault. History should record this though as a near failure the risk of which will only grow as mass manipulation techniques grow in effectiveness.

    The solution? The only one that I can think of is more education among the electorate of this danger to freedom. It can be bought rather than fought.

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