The Hobby Lobby Decision
In her dissent on the contraception ruling, Supreme Court Justice Ruth Bader Ginsburg notes that “the exercise of religion is characteristic of natural persons, not artificial legal entities.” That used to be true.
The 3rd Circuit Court of Appeals explained last year that courts have “long recognized the distinction between the owners of a corporation and the corporation itself.” Ruling that “a for-profit corporation can engage in religious exercise” would “eviscerate the fundamental principle that a corporation is a legally distinct entity from its owners.”
In the Hobby Lobby ruling, the court’s conservative majority made up of 5 Catholic men, makes the opposite assumption. Justice Alito wrote:
“Protecting the free-exercise rights of closely held corporations thus protects the religious liberty of the humans who own and control them.”
And there we have the crux of the problem with this decision. The religious inclinations of the owners of a corporation are now extended outward into the corporation itself. This is made possible by the ridiculous “Citizens United” ruling by the SCOTUS that Corporations are People. And that money = speech. Clearly, if money = speech, then speech isn’t Free. The more money you have, the more speech you have at your disposal. Those with very little money, have virtually no speech at all. With campaign’s now hitting the Billion Dollar mark, the transition from Democracy to Plutocracy is completed. The owners of the corporation most certainly have their own individual religious identity which is respected as well it should be. However, they are accountable to no-one but themselves for their beliefs. They are free to hold whatever beliefs they may have, but now have the added legal authority to impose those beliefs on their own employees. If proselytize means, promote, advocate, champion, advance, further, spread, proclaim, peddle, preach, endorse, urge, recommend, boost, which Hobby Lobby engages in even to the extent of pumping Christian religious music into their stores, then it’s clear that every employee and every customer is a target for conversion to the owners own brand of ideological thinking.
The Hobby Lobby ruling makes those religious beliefs a priority within the corporation itself and felt by those that work for the company, whether they subscribe to them or not. How far can this be applied? Who knows? Depending on the owners religious inclinations they could claim that their beliefs oppose all forms of vaccinations, or medications. They could oppose other laws on religious grounds that are designed to counter discrimination in the work place. They could oppose providing services to some people based on their religious beliefs. This doesn’t guarantee that they will. But it does mean that by using the logic that the court applied to Hobby Lobby, there is nothing standing in their way. They are now afforded the same religious exemptions as a church which is exempted from the Civil Rights Act.
According to Title VII of the Civil Rights Act:
UNLAWFUL EMPLOYMENT PRACTICES:
SEC. 2000e-2. [Section 703]
(a) Employer practices
It shall be an unlawful employment practice for an employer -
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.
Title VII contains only one religious exemption, which applies to any “religious corporation, association, educational institution, or society.” Such groups are allowed to make employment decisions on the basis of an individual’s particular religion. The same protection is extended to any “school, college, university, or other educational institution” if the curriculum is “directed toward the propagation of a particular religion.” That exemption now applies to a for- profit, closely held corporation that claims to have a religious identity.
This exemption does not apply to the other protected classes like sex, race, and national origin — it only says that religious organizations can discriminate based on religion. Again, Hobby Lobby now qualifies as a religious organization in the eyes of the Supreme Court.
Hobby Lobby is not a religious corporation. It’s a for profit corporation owned by a Christian family. If it were a religious corporation it could enjoy the same tax free status as that of a church. It’s also a corporation licensed to do business by the state, which cannot allow discrimination of any kind, religious or otherwise, to be acceptable. In effect, the state now engages in religious discrimination as well. It is casting a favored status toward one religion, that other’s do not enjoy. And the taxpayer is paying taxes to that government which is now offering a favored status to one religion. Hobby Lobby can avail itself of the benefits of religious exemptions previously extended to the church but denied to secular organizations. How is that possible where the separation of Church and State is the very principle that is necessary for a Democracy to exist?
In his statement; Alito believes corporations have the right to exercise religious beliefs – and that right demands protection. The court majority takes it as a given that a corporation, and not the literal people in it, can attend worship services, pray, contemplate moral quandaries, read scriptural texts, and reach spiritual conclusions that now include what medications their employees can avail themselves of through their healthcare plans. And that right trumps the individual rights of its employees to exercise their own religious beliefs or non-beliefs, in favor of those held by the owners. A persons religious or political or philosophical beliefs belong to him. He doesn’t surrender them for the privilege of working for Hobby Lobby. Forced to do so, Hobby Lobby would be openly guilty of violation of the Civil Rights Act Title VII which prohibits discrimination in the work place with regards to among other things; Religion. Assuming that Corporations are People Too, when may we expect to see a corporation playing Tight End for the Patriots, or second base for the Cubs? If a corporation is responsible for the deaths of people using their product, are they capable of receiving the death penalty in a place like Texas? Can a Corporation run for public office? In a place where torture is redefined as “enhanced interrogation”, I suppose anything is possible.
Alito stated this; “Any suggestion that for-profit corporations are incapable of exercising religion because their purpose is simply to make money flies in the face of modern corporate law.” This is hard to digest since corporate law has actually said the exact opposite. The Constitutional Accountability Center’s Doug Kendall specifically noted in a press statement, “For the first time in our nation’s history, the Supreme Court has ruled that for-profit corporations have religious rights and have accorded them religious exemptions. Despite their attempts to qualify that ruling, it opens the floodgates to claims by corporations for religious exemptions.”
Alito is fairly explicit on this point, saying, “Our decision in these cases is concerned solely with the contraceptive mandate” and does not apply to corporations that may raise religious objections to “vaccinations and blood transfusions.”
Ahh…so there he qualifies this ruling as only applicable to contraception; a direct shot at the Affordable Care Act which he opposed . Justice Alito it appears, is not above playing politics. This presents a very tricky situation. If any degree of logic has been used to come to this decision, then what Alito is telling us is that Logic is arbitrary. It applies when we decide it’s useful to achieve a particular result, but denied in all other circumstances. In other words, the “Ends justify the Means”.
By what reasoning do the five conservatives conclude that a Corporate Person’s objections to contraception are more legitimate than a Corporate Person’s objections to blood transfusions? What is the logic that is being used to come up with this? Apparently, it’s true because Alito says it is.
According to Justice Ginsberg; “Approving some religious claims while deeming others unworthy of accommodation could be ‘perceived as favoring one religion over another,’ the very ‘risk the Establishment Clause was designed to preclude.’ The Court, I fear has ventured into a minefield.”
The issue is ridiculous for the simple unavoidable fact that the first Amendment, (Religious Liberty) which Hobby Lobby and of course the Conservative Republicans; which would include the majority of the members of the SCOTUS, are claiming is their basis, clearly states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof“.
The First Amendment forbids not only establishments, but also any law respecting or relating to an establishment. Most importantly, it forbids any law respecting an establishment of “religion.” It does not say “a religion,” “a national religion,” “one sect or society,” or “any particular denomination of religion.” It is religion generically that may not be established.
Examine this phrase:
- Congress shall make no law…prohibiting the free exercise thereof;
Clearly the example makes no sense on its own. It must refer back to the establishment clause to get its meaning. When a Conservative stands on his soap box and preaches “Whatever happened to the first amendment right to Free Exercise of Religion?”; he says this being completely oblivious to the wording of the amendment he is citing. His argument is over birth control, which is not a religion. However, he’s framed it as such. He is claiming birth control violates his religious beliefs and his freedom of expression. However, when he cites the free exercise of religion , he must refer back to the establishment clause for his definition.
The establishment clause does more than ban the federal government from establishing religion; it bars even laws respecting establishment.
The Supreme Court’s decision violates the establishment clause of the 1st Amendment.
The First Amendment does not say that Congress shall not establish a religion or create an establishment of religion. It says “Congress shall make no law respecting an establishment of religion”. Whether “respecting” means honoring or concerning, the clause means that Congress shall make no law on that subject. The ban is not just on establishments of religion but on laws respecting them, a fact that allows a law to fall short of creating an establishment yet still be unconstitutional.
The Free Exercise Clause not only protects religious belief and expression; it also seems to allow for violation of laws, as long as that violation is made for religious reasons. In the terms of economic theory, the Free Exercise Clause promotes a free religious market by precluding taxation of religious activities by minority sects. They rise or fall on their own merits without the table being tilted by the government. Constitutional scholars and even Supreme Court opinions have contended that the two religion clauses are in conflict. As mentioned previously, the Free Exercise Clause implies special accommodation of religious ideas and actions, even to the point of exemptions to generally applicable laws. Such a special benefit seems to violate the neutrality between “religion and non-religion” mandated by the Establishment Clause. The Establishment Clause actually trumps the Free Ex clause. In 1940, the SCOTUS said this:
“Freedom of religion embraces two concepts, – freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be”. Cantwell v. Connecticut
Obviously, a person cannot engage in murder and claim that his religion calls for human sacrifice, and he’s simply engaged in the Free Exercise of his religious beliefs. There are limits to what we may see as Free expression of our beliefs. You may believe anything. You may not expect a free pass to act on those beliefs. Free Exercise is not absolute.
An overlooked aspect of the free exercise clause which is a blind spot among Conservative/Republicans, is that it looks back to the establishment clause for its definition of “religion.” This is why scholars and even the court itself have made the argument that the two clauses act against each other and present a paradox. The establishment clause says that Congress may make no law respecting an establishment of “religion,” while the free exercise clause says that Congress cannot prohibit the free exercise “thereof.” Logically, the word “thereof” must have the same content as the object to which it refers. Accordingly, what counts as “religion” for one clause must count as “religion” for the other.
The free exercise clause makes no sense unless the word “religion” is read to encompass more than a church, denomination, or sect. The state abridges free exercise when it interferes with only small parts of an individual’s religious practice. The state, for example, abridges free exercise when it tells students they cannot pray during school, even if it allows them complete freedom to practice all other aspects of their faith. Similarly, the state cannot tell a church it must provide contraception coverage even if the church is otherwise left free to use its property as it wishes. Private prayer and contraception are protected by the free exercise clause despite the fact that neither of these practices constitutes religions in and of themselves.
If prayer and contraception count as “religion” for the purposes of the free exercise clause, they must also count as “religion” for the purposes of the establishment clause. Just as the state abridges religion when it tells a student she cannot pray, so too does it establish religion when it requires prayer to be said in the schools. Just as the state abridges religion when it tells a church it must provide contraception coverage, so too does it establish religion when it makes a law that would deny contraception coverage to people outside the realm of the church , based on a religious exemption argument. The state does not cross the line to establishment only when it goes to the trouble and expense of setting up a state church; it crosses that line when it sets up any religious practice that constitutes “religion” for the purposes of free exercise. To the extent that Conservative/Republicans want to read the “thereof” in the free exercise clause broadly, they must also accept a broad reading of “religion” in the establishment clause.
This ruling is really a totally transparent attempt to undermine the Affordable Care Act. It opens a loophole that you could drive a battleship through. It gives a religious or moral exemption to anything an employer may object to. To accept the logic and reasoning of Alito, if an employer decides that prayer cures all, then he could deny any kind of health care to his employees based on a religious or moral objection. It introduces government mandated discrimination based on religious or moral objections outside the title VII exemption of the Civil Rights Act for the church. If held as valid, then logically that same argument could be used for denying a veteran a job because the employer doesn’t believe in War, and it could also introduce discrimination based on a host of other moral or religious objections.
Discrimination appears to be a common thread running through conservatism. It appeals to a sense of individualism. But we live in a pluralistic society whether we like that or not. We all sacrifice certain amounts of our individualism in order to function in that society. The object is to balance that important sense of individuality within the framework of our society. We cannot function with 300 million people making decisions over what laws they will follow based on moral or religious objections.
We cooperate with each other in order to make that society work. To the extent that some of us are unwilling to make that effort, our nation is suffers the consequences. When your ideology is so all consuming that you cannot recognize its own built in fallibility as well as your own, the countries interests are never served. Only the interests of that ideology are being served. And why would anybody follow an ideology that presents itself as infallibly true, but can never demonstrate why?
Larry Allen Brown