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.