Friday, July 4, 2014

Hobby Lobby: On the Significance of the Case

For all the controversy stirred up by the case of Hobby Lobby v. Sibelius(2014) on whether an employer must comply with the mandate for contraceptives coverage in the Affordable Care Act, the significance of the decision handed down in a 5-4 majority opinion by the U.S. Supreme Court may be less than some commentators were predicting. 

As evangelical Christians of the Southern Baptist section, the Greens did not object to 16 of the 20 contraceptives mandated for employer coverage in the Affordable Care Act. Indeed, fundamentalist Christians “largely support the use of birth control by married couples.”[1] The Greens considered Plan B, Ella, and two intrauterine devices as tantamount to abortion, in that the means prevent a fertilized embryo from implanting in the womb.[2] Blocking implantation would “terminate life,” Green argued. “We won’t pay for any abortive products. We believe life begins at conception.”[3] Ending human life after that time, Green wrote in an open letter, is "something that is contrary to our most important beliefs."[4]

Arguably, a Hobby Lobby check to the company’s insurance company for the employee health plan pays for the plan itself, rather than for particular items that the insurance company pays for when a medical practitioner prescribes them for employees. In other words, it is the insurance company’s business, literally and figuratively. Even so, Steve Green would undoubtedly have felt blameworthy morally and religiously had he not explicitly excluded the offensive medical products from the plan for his company's account, for without his decision abortions would occur. Yet here too are several problems, which effectively mean that the significance of the case has been blown out of proportion.

Firstly, killing a few human cells may be immoral to some people, yet is the practice irreligious in nature? Theologically, the Creation is not the same as the biological process by which a human being begins. Furthermore, Jesus is not represented in the New Testament as prohibiting abortion, even though he did include other moral teachings in his preaching. Steve Green may have been conflating a theological doctrine with a moral principle and a biological process.  Put another way, abortion can be reclassified as a moral issue, in which I suspect it would be easier to come to a compromise, societally.

Secondly, Steve Green's labeling some contraceptive devices as means of abortion is a subjective call. Is preventing a fertilized egg of a few cells from implanting on the wall really like killing a fetus? Relatedly, as Green points out, even those abortive instruments are just a subset of contraceptives. The notion that the company’s health insurance plan for employees excluded or would exclude the pill (as distinguished from the “morning-after pill) is thus a popular misconception. That is to say, the claim that the ruling means that women working at Hobby Lobby would not have contraceptives covered is incorrect, so the importance of the court’s decision likely escalated beyond merit in this respect too.

So too, the breadth of the closely-held corporation limitation in the ruling was immediately debated, with Ginsberg predicting in her dissent that the door would eventually be open for virtually any company with any sort of religious conviction to use the ruling to obviate a law that the executives or majority stockholder do not like. “Although the court attempts to cabin its language to closely held corporations,” she wrote, “its logic extends to corporations of any size, public or private.” She added that corporations could object to “health coverage of vaccines, or paying the minimum wage, or according women equal pay for substantially similar work.”[5] However, Alito wrote that the Religious-Freedom Act applies only to closely-held for-profit corporations run on religious principles. To be sure, wriggle-room exists even within this delimitation, for Alito wrote that those corporations would be unlikely to prevail if they object even on religious grounds to complying with other laws than the Obamacare mandate.[6] What is unlikely to Alito is not necessarily so to other justices, as it is a judgment call. Even so, Ginsberg's leap to any for-profit corporation seems to be untenable given the explicit delimiting stipulation in the majority opinion. 

So it is vital that the controlling small group or family of owners apply principles from their religion to their commercial enterprise. Without the separation of ownership and control that is typical of a large corporation, a closely-knit group or family of owners can indeed orient their company to religious as well as commercial purposes. Hence the Greens referred to their business as a matter of stewardship.[7] This situates their commercial objectives within a bubble of religious aims. Adam Smith situates his Wealth of Nations within his theory of moral sentiments; religious sentiments can also serve as a buffer.

On opening Hobby Lobby, Steve Green's father declared its Christian principles. Like Chick-A-Flick, the stores would be closed on Sundays “to allow employees time for family & worship”—according to a sign on the front doors.[8] The Green family’s foundation, whose funds presumably have their source in Hobby Lobby, extends charitable gifts to gospel outreach efforts as well as social services in Oklahoma.[9] A court would presumably want to find such evidence of religious claims in action, as well as assess the salience of the aims relative to attention paid to commercial objectives. To the extent that those agendas contravene the cited religion or religious principles, the case for religious exemption is undercut. 

It follows that the ruling hangs on the manager-owners' religious objectives, with strong control element rendering the company as an instrument. So I think the nexus being situated at corporate legal personhood is misplaced, even if Alito does make use of the doctrine. In her dissent, Ginsberg makes the point that human beings are religious. The "exercise of religion is characteristic of natural persons, not artificial legal entities."[10]

Alito comes closer to this point than many people realize, for he links Green's religious objectives to the doctrine, writing that a "corporation is simply a form of organization used by human beings to achieve [their] desired ends. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people."[11] In the case of a closely-held corporation, the corporation is an extension of the will of the few who both own and control. Similarly, my (limited) bank account does not itself enjoy religious rights, but I can use it (because I control it) to fund religious causes by writing checks. Put another way, the sum as more than the parts applies to corporations that have many stockholders because none of them controls their respective corporation as an extension. 

Therefore, even though Alito’s majority opinion is based in part on his interpretation of a corporation as a legal person, the exercise of religious freedom goes through the corporation as an extension rather than being based in the artificial person itself; that is, the closely-held caveat implies that the operative right was being exercised by Steve Green and any other close owners. Their specifically religious imprint on the for-profit company—that is, using it for religious as well as commercial purposes—means that they, rather than the company itself, are the source or basis of the religious agency that extends itself through the corporate structure extending beyond their fingertips. 

It follows that the hiring process should include explaining to the prospective employees that they too would be part of that extension. Hence, Green has stressed that the “greatest misconception” about the case “is that we are trying to impose our religion on these workers or others. Not at all! That would violate our religion to do that.”[12] As he saw it, anyone agreeing to work for Hobby Lobby knows of, and agrees to, the dual purposes of the closely-held corporation. Perhaps part of the problem is that Green’s hiring subordinates did not make this point clear (without discriminating, of course).

It could also be argued, however, that the anti-abortion stance is not a fundamental or important Christian belief. After all, Jesus does not even mention the issue in the New Testament. Recall Green's statement that he applies Christian principles to his business; the implication is that those principles are important theologically. In fact, the Greens' stance may actually be moral in nature, rather than theological, as Creation can be distinguished from the biological process by which an egg is fertilized its cells multiply.  

Therefore, the stance may not actually find adequate cover under Christian auspices understood theologically. Traditionally, the Court has required that accommodations on account of the freedom of religion passage in the First Amendment be based in an established religion; claiming that your own religion or your own version of an institutional religion requires you to enact a pot-smoking ritual every night is not going to cut it. Clearly, opposition to abortion on religious or moral grounds is not frivolous or made up by individuals, but neither is the stance a central tenet theologically in Christianity. This could open the door to other claims of other religious issues whose importance in religious terms may be overblown, and thus without meriting accommodation.

Moreover, basis of Green’s case may not even be religious freedom; rather, property rights could be the underlying issue, for Steve would also have the right to orient the business to serving social causes, for example, as in the case of Ben & Jerry’s (ice-cream), even at the expense of profit maximizing. Generally speaking, the profit-maximization principle is merely the default, with stockholders of a corporation having the right to alter the aim of their combined, incorporated wealth even at the expense of profitability.

As a personal aside, I have been inside a Hobby Lobby store only two times; the first was to buy a mother’s day gift, and the second constituted my attempt to buy a candle, the melted wax I would use to make up for a deficit in a half-burnt candle at home. So I was not picky about the candle, just that I needed only one. When I saw two long, thin candles connected as if Siamese twins joined by a wick-like umbilical cord at the tip of their tiny heads, I asked the front-area manager if I could buy just one of them, as both candles were broken.

“They come as a pair!” the stern woman crowed as if blissfully unaware that they were broken.

“But they are broken,” I sheepishly replied as I held them up to give her a good look.

“Makes no difference,” she said as she walked away. Her attitude resonated with the dysfunctional culture infecting businesses and other sectors back in my hometown.

From this curt exchange, I had the impression that the Greens should attend to more pressing “bread and butter” concerns than whether the insurance company used for employee health insurance pays for a few morally objectionable medical items. All the attention and energy that the Greens devoted to what in business terms is a minor issue, and perhaps even their dual-purpose approach itself may suggest that Steve Green really is not that good at management, at least in regard to hiring and training. 

At a deeper level, I see a pattern in that both the “contraceptives issue” and the “candle issue” may both involve “making a molehill into a mountain”—that is, overdoing relatively small things and thus missing the big picture. In my case, Hobby Lobby lost not only revenue on the candle, as I left the store in disgust, but also a future customer. 

Sometimes I suspect that human nature itself contains a short-circuit when it comes us being able to calibrate the importance of matters we take to be important. Perhaps this is a matter of conceit, being all puffed up with our own determinations, as if we could not possibly be wrong. Sadly, other people can suffer needlessly as a result, and this may be a cost that is all too invisible even to the well-meaning religious among us.

1. Daniel Burke, “Hobby Lobby: The Bible Versus Behind the Battle,” CNN, June 29, 2014.
2. Ibid.
3. Cathy Grossman, “Hobby Lobby’s Steve Green Stands on Faith Against Obamacare Mandate,” Religion News Service, March 17, 2014.
4. Patricia Walston, "Letter from Hobby Lobby Founder and CEO,", March 27, 2013.
5. Adam Liptak, "Justices Rule in Favor of Hobby Lobby," The New York Times, June 30, 2014.
6. Ibid.
7. Grossman, "Hobby Lobby's Steve Green."
8. Ibid.
9. Ibid.
10. Richard Wolf, "Birth Control Ruling Deals a Blow to Obamacare," USA Today, July 1, 2014.
11.Grossman, "Hobby Lobby's Steve Green."
12. Burke, "Hobby Lobby: The Bible"