The Hobby Lobby Case: Good News, Not Great News

Many religious folk have been rejoicing at the Supreme Court’s recent 5-4 decision in Burwell v. Hobby Lobby, the case concerning the Obama Administration’s attempt to force Hobby Lobby and other religious businesses to pay for contraceptive and abortifacient drugs for their employees under Obamacare. The Court held that the Obamacare regulation forcing business owners to provide insurance coverage for drugs that prevent a fertilized ovum from implanting in the uterine wall, thus inducing an abortion, seriously burdens the right of those owners to practice their religions. Because this mandate was not the least restrictive means of achieving what it assumed is the “compelling governmental interest” in providing cost free access to contraceptive and abortifactient drugs, the Court held it violates the rights of religious business owners set out in the Religious Freedom Restoration Act.

This is good news, of course, as it prevents the government from forcing religious business owners to choose between funding abortifacients and cutting off all health benefits to their employees (or pay crippling fines). But we should not lose sight of just how narrow and limited the ruling really is. First of all, there is nothing in this decision that goes to the Constitutional right to free exercise of religion.  The decision was written in terms of the Religious Freedom Restoration Act (RFRA)—Congressional legislation, not the Constitution. And the Court has specifically stated that RFRA rights go beyond those provided in the Constitution itself, so Congress could overturn the decision at any time by changing the statute.

This is not to say that there is not much to praise in the Hobby Lobby decision, at least against the backdrop of today’s ethically- and textually-challenged constitutional jurisprudence. The Court held that forcing business owners to fund purchase of abortifacient drugs when they sincerely believe that to do so is forbidden by their religion, in fact, imposes a substantial burden on owners’ religious free exercise. The Court also held that corporate businesses have rights in the limited sense that they should be treated as persons representing the rights of their owners, hence capable of having representative rights, including a right to the free exercise of religion.

That said, the Court made this determination in regard to only a specific type of “closely held” corporation. These smaller corporations generally are family owned businesses, “shares” of which are not generally available for sale or purchase, but only held by a very small group. General Motors and other large corporations receive no protection from this decision, regardless of the religious beliefs of any or even all of the thousands of owners of their stock.

In addition, the federal government can still provide the free abortifacient coverage for which the Obama Administration yearns by paying for it with tax money taken from all of us via a national plan. Alternatively, according to the Court, the Administration may extend the exemption it already provides to non-profit corporations with religious objections to paying for abortifacient drugs. That is, through new regulations, the Administration could make insurance issuers or administrator expressly exclude contraceptive and abortifacient coverage from the group health insurance plan. The issuer would then have to pay for abortifacient reimbursements out of more general group funds, with no money coming directly from the plan, its participants or beneficiaries. In essence, all of us would, again, pay the cost through increases in general premiums.

Clearly, then, this decision, while better than the alternative for the cause of religious free exercise, is of extremely limited effect. It protects only closely held corporations which otherwise would be subject to the Contraception Mandate from specifically covering abortifacients, and only under RFRA. The federal government could change RFRA, or change the Obamacare program to cover the abortifacients from taxpayer dollars, or from generalized insurance dollars. Socialized medicine continues to be institutionalized, and will, when complete, include taxpayer-funded abortions. No abortions will be prevented or substantially impeded by this decision. And we are no closer to having a meaningful public discussion regarding the federal government’s right to impose its pro-abortion agenda.

In truth, the real revolutionary decision would have been one not upholding Hobby Lobby’s rights. As shown by the arguments of Obama’s lawyers and the dissenting Justices, such a decision would have crippled any opposition to federal legislation intended to impose a particular moral vision on the nation as a whole. It would have meant that no corporations other than those specifically authorized as “not-for-profit” would be seen as representing the rights of their owners. As a result, companies seeking to operate in the marketplace, making and selling goods, would be treated as if they existed only to make money. Yet another part of our public life would be roped off against “intrusion” by people’s deepest beliefs and morally-driven conduct. Not only would such companies have no right to represent the religious free exercise rights of their owners, they also would be made liable to all kinds of additional governmental restrictions and even shareholder lawsuits objecting to their “economically inefficient” decisions to, for example, assist local charities and/or install “excess” anti-pollution equipment.

The dissent’s argument also would have dismissed as unimportant business owners’ very claim to being morally implicated in the makeup of the health insurance they provide. That is, because employees might not choose to take advantage of the free abortifacient coverage, business owners would be denied the right to claim that their religion forbade them from offering to pay for it—and actually paying for it, should the employee choose the abortifacient. The government, then, would become the sole arbiter of the proper relationship between religious belief and ethical conduct. We already have gone far down this road through various Court decisions upholding the right of the government to tax and spend for essentially any purpose, with citizens having essentially no right to object. To extend this logic to the realm of employer-financed employee benefits would be to make a mockery of claims to religious toleration, let alone free exercise.

There can and should be some movement coming out of this decision for smaller, closely held corporations to make clear their religious standards and beliefs. One hopes that statements of religious principles in corporate bylaws, charters, and policies might protect the religious free exercise of important institutions and groups in our nation against radical programs like “free abortifacients for all.” It also might cause some owners to be more explicit and active in promoting policies rooted in religious faith and tradition.  Nonetheless, we should not hope for any pause in the movement to silence religious dissent from contemporary, radical moral visions. We continue to live under a brutish and ham-fisted legal culture, in which one extreme ideological position so dominates that we are expected to simply nod our agreement when told that religious rights are “opposed to” the rights of women—including many millions of religious women and unborn female children, many of them “chosen” for abortion only because they are female.

The Hobby Lobby decision may mark the beginning of a more assertive religious point of view, defending our right to be who we are in our public and economic lives. But it will be at most a beginning in a long series of battles that show no signs of ending anytime soon.

Editor’s note: This column first appeared July 1, 2014 in Imaginative Conservative and is reprinted with permission.

Bruce Frohnen

By

Bruce Frohnen is Professor of Law at the Ohio Northern University College of Law. He is also a senior fellow at the Russell Kirk Center and author of many books including The New Communitarians and the Crisis of Modern Liberalism, and the editor of Rethinking Rights (with Ken Grasso), and The American Republic: Primary Source. His most recent book (with the late George Carey) is Constitutional Morality and the Rise of Quasi-Law (Harvard, 2016).

  • Michael Paterson-Seymour

    “[W]e are no closer to having a meaningful public discussion regarding the federal government’s right to impose its pro-abortion agenda.”

    But the court was not engaging in a public discussion, but determining a particular dispute between the government and Hobby Lobby. They were able to decide that dispute by making findings on two issues in dispute between the parties, (1) that the RFRA does apply to closely-held for profit corporations and (2) supposing (without deciding) the government had a “compelling interest” in guaranteeing cost-free access to the four challenged contraceptive methods, it had failed to satisfy the RFRA’s least-restrictive-means test.

    The court did not decide that (1) RFRA only applies to closely-held corporations, or (2) that he mandate does, in fact, further a compelling government interest, or (3) that any particular alternative does satisfy the least-restrictive-means test and it was unnecessary, on the facts of the case, for them to do so. They remain questions for another day.

    • Pamela

      I hear what you’re saying, but I believe we are naive to think that answers to these “questions for another day” are already being strategically crafted by our opponents.

  • TERRY

    This is a victory. Not a great one, admittedly, but a victory, and for that we should give thanks.

    And go back to the fight.

  • Bedarz Iliaci

    “regardless of the religious beliefs of any or even all of the thousands of owners of their stock”

    Not owners in the proper sense of being publicly and stably linked with their property and taking due stewardship of it.
    But mere share-holders content to receive dividends.

    • perplexed

      Right. This is my question. I’m wondering about the morality of setting up 401Ks in the usual manner. (One’s financial advisor selects the companies to invest in based solely on financial principles.) But are we at the point where morally we can’t take this approach anymore? Is anyone else out there thinking about moving one’s investments into those few corporations aligned with Hobby Lobby? This certainly wouldn’t be diversification, but is it morally necessary? Hmmphh…. Come to think of it though, could Catholics even back Hobby Lobby since they put no restrictions on other forms of contraception in their health plans? Anybody have any thoughts on this issue? Is it even possible to find investments that are not morally tainted?

      • somnipod

        Ave Maria mutual funds.

        • perplexed

          Thanks!

  • Pamela

    Yes, a victory, but when you dig deeper to find out what’s going on across America right now to counter our little win … it is sobering. Of course, there are the usual suspects — liberal Dems crying foul and vowing to “do something” about this sooner than later. But you also have shrill, radical and extremely organized Leftists, including Nat’l Org for Women (NOW) and groups like the Center for Inquiry working to socially re-engineer America — and they are in fast-forward mode. Google the Center for Inquiry and read it’s president’s views in a recent Huffington Post article questioning whether good Catholics can be good citizens. The masses are buying into this propaganda.

  • Vinnie

    Faith in men/the government/the world, or God? Faith enough to take the persecution that’s coming?

  • M

    “The Hobby Lobby decision may mark the beginning of a more assertive religious point of view, defending our right to be who we are in our public and economic lives. ”
    This is true IF the recent Supreme Court ruling is applied with absolute fairness to all religious groups and about all deeply-held religious or conscientious beliefs. In all fairness, Jehovah’s Witnesses who own “closely held” corporations should not have to provide insurance that covers blood transfusions for their employees. Quakers must be spared from having to contribute to wars. As a pro-life Catholic, I must be prevented from being forced to fund in any way through my tax dollars any further deadly military adventures in the Middle East. It is also my deeply-held belief that provision of US arms to Israel, which I am currently having to pay for, is abhorrent and deeply immoral, given what the IDF is currently doing in Palestine. Nobody has to agree with me any more than any of us has to agree with Hobby Lobby’s belief system. The fact is that I should have just as much religious freedom from our government determining what to do with my tax dollars as Hobby Lobby has. My own beliefs are just as sincerely held. If the rest of us, those who are not Hobby Lobby, are not granted this freedom, than the Supreme Court has been guilty of discrimination. The law MUST apply equally to all of us.

    • Watosh

      But that would invite chaos. I support Hobby Lobby’s case, absolutely, but I fear that the effect of this ruling would lead to, speaking from a secular government that claims to reflect the will of the people, could be crippling to a lot of government’s actions, and this means that I think this ruling will be nullified by Congress, as there are movements involving “Catholic” legislators right now to do just that. I agree with M that it would be good if individuals could decide what they want to support, but the modern pluralistic, secular State can’t allow this to apply equally to all of us. That is not the modern pluralistic, secular State’s nature, unfortunately. The modern, pluralistic secular State will not allow a Christian baker shop to not bake a wedding cake for a same sex marriage. Giving us these freedoms, as much as I wish it would along with M, realistically this would paralyze the State. and so I am not expecting this decision will withstand the onslaught of our appointed legislators, that we are allowed to endorse during elections. And yes, I think Vinnie below is correct, a persecution is coming.

      • Michael Paterson-Seymour

        As Rousseau says, “Each man alienates, I admit, by the social compact, only such part of his powers, goods and liberty as it is important for the community to control; but it must also be granted that the Sovereign [the People] is sole judge of what is important,” for “ if the individuals retained certain rights, as there would be no common superior to decide between them and the public, each, being on one point his own judge, would ask to be so on all; the state of nature would thus continue, and the association would necessarily become inoperative or tyrannical.”

        His conclusion is well known, “whoever refuses to obey the general will shall be compelled to do so by the whole body. This means nothing less than that he will be forced to be free; [« ce qui ne signifie autre chose sinon qu’on le forcera d’être libre »] for this is the condition which, by giving each citizen to his country, secures him against all personal dependence.”

  • The Left’s Hollow Complaints About Hobby Lobby, Progressives are fond of saying that they stand for empathy and compromise, and are quick to blame conservatives, Bottom Line Pro Life Men Not Sleeping With You , There sound legal reason pay for your birth control.

    the court’s opinion appears to have been taken as gospel not only by Democratic politicians and liberal bloggers, but by establishment journalists who ought to know better.

    A New York Times editorial preposterously proclaimed that Hobby Lobby gave “owners of closely held, for-profit companies an unprecedented right to impose their religious views on employees.” Yet the decision in no way affected the religious views of employees. It left their conduct unaffected as well.

    Writing in the Washington Post, columnist Ruth Marcus asserted that “the interests of the contraceptive users are almost entirely absent from the majority opinion.” Her explanation was that the five men who signed it lack uteruses.

    Marcus’ underlying rationale appears to be that there is only one way to think like a woman. But as Ethics and Public Policy Center President Ed Whelan observes, numerous formidable women agree with the Hobby Lobby decision, including “Seventh Circuit judge Diane Sykes and D.C. Circuit judge Janice Rogers Brown (each of whom wrote opinions holding that the HHS mandate violates the RFRA rights of for-profit companies and/or their owners); the many talented lawyers who supported the challenges to the HHS mandate; and individual plaintiffs like Elizabeth Hahn and Barbara Green.”

    Writing also in the Washington Post, columnist E.J. Dionne deplored the majority’s “profound class bias” supposedly exhibited in its having “focused on the liberties of the company’s owners, not of those who work for them.” In reality, the court fashioned a narrow holding that respected the company owners’ liberties without interfering with their employees’ rights.

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