Category Archives: Uncategorized

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.

The IBJ recently reported on the most recent turn of events in the ongoing dispute over Browning Investment’s planned Broad Ripple development. According to the IBJ,

The developer of a $30 million apartment-and-retail project in Broad Ripple wants the development’s most vocal opponents to pay nearly $1 million in damages related to construction delays.

Browning Investments Inc. is asking that Good Earth Natural Foods and resident Patrick Skowronek pay the money for appealing the Metropolitan Development Commission’s decision to award Browning zoning variances to proceed with the project.

This is a perfect example of a SLAPP–a strategic lawsuit against public participation.

The purpose of a SLAPP isn’t to win, or even to litigate a legitimate dispute. It is a strategy sometimes used by large corporations or developers  in order to intimidate people who have the chutzpah to oppose them, a bullying tactic to silence critics by threatening them with the very substantial costs of defending against a lawsuit that the big guys can easily afford, but citizen-protestors cannot. The goal is to squeeze the people criticizing the development until they are exhausted, or out of money, or both, and abandon their opposition.

As a bonus, SLAPP suits also “send a message” that intimidates other people who might be tempted to join the opposition.

The zoning appeals process is there for a reason, and people are entitled to use it. Costs attributable to a delay while a dispute is mediated or litigated should be–and are– an anticipated cost of doing business.

Suing people who have pissed you off by daring to disagree with your business plan is–excuse the language–a dick tactic.

There are some arguments that are just unedifying. Recent discussions of “privilege” fall in that category,  for the same reason that so many of our public debates generate so much more heat than light: we’re mostly talking past each other.

It would be so helpful if people would just begin by defining their terms.

Privilege–at least in the sense being debated– isn’t an individual attribute. Some individuals can certainly be more privileged than others–we can be well-educated, wealthy, healthy, etc. But that isn’t what “white privilege” or “male privilege” is about. That latter kind of privilege is a cultural attribute; it is a description of systemic social attitudes and assumptions that favor white heterosexual males and make their lives, on balance, easier than the lives of women and minorities.

What are some of those privileges?

The odds of a white male being hired over equally-qualified women or minorities is demonstrably higher–and when a black male or woman does get the job, co-workers are far more likely to assume the hire was based upon affirmative action rather than merit. When a white guy fails to perform, the odds are that his failure won’t be attributed to– or reflect on others of– his sex or race.

A white guy who is loud or obnoxious in public is just an obnoxious white guy–not a representative of “those people.”

White males are unlikely to be followed in stores by clerks who suspect they’ll pocket merchandise,  and far less likely to be stopped and frisked by police. There’s a good list of similar examples here.

People who deny the existence of privilege tend to ignore such systemic attitudes, and to argue from individual experience: I didn’t have it so easy, I was poor, I’ve been mistreated, I overcame obstacles in my life. Such arguments entirely miss the point.

Are there women and African-Americans and members of other minority groups who are demonstrably better-off than many white males? Of course. Are there many white men who have overcome crushing adversity? Of course. But even they benefit from social privilege, whether they recognize that fact or not.

There are also a whole lot of angry white guys who refuse to recognize or acknowledge the multiple ways in which social attitudes advantage them, who cling to and defend the status quo and who resent any and all challenges to the “traditions” that protect their privileged status.

Just turn your TV to Fox, or listen to talk radio if you don’t believe me.