Friday, January 02, 2015

"Religious Liberties for Corporations": Gans, Shapiro and Rosen examine the Hobby Lobby case

Authors: David H. Gans and Ilya Shapiro; Introduction and moderation by Jeffrey Rosen

Title: “Religious Liberties for Corporations: Hobby Lobby, the Affordable Care Act, and the Constitution

Publication: Palgrave macmillan, 2014, ISBN 978-1-137-48467-3 hardcover (also paper and e-book), 80 pages, Introduction, four chapters, conclusion
Amazon Link here
First, let mention that this is very pricey for a short professional book.  I paid $40 at a Cato book forum (reviewed on the Issues blog, Dec. 16, 2014).

David H. Gans is Director of Human Rights, Civil Rights and Citizenship Program, Constitutional Accountability Center.  Ilya Shapiro is Senior Fellow in Constitutional Studies, Cato Institute.  Jeffrey Rosen is President of the National Constitution Center.
The first chapter is “What rights do corporations have?” by Rosen and (mostly) Gans.
Chapter 2 is “Corporate personhood and religious liberty”, a debate between Gans and Shapiro moderated by Rosen.
Chapter 3. is “The broader implications of Hobby Lobby: Is there a slippery slope?”, a debate based on the oral arguments made to the Supreme Court.
Chapter 4 is “The Ruling: What does it all mean?”, again, another debate.
The context of the book is best explained by the case “Burwell v. Hobby Lobby”, decided by the Supreme Court June 30, 2014, as explained here on Wikipedia, link, slip opinion from SCOTUS here

The background is that the owners of Hobby Lobby, a for-profit closely held corporation in Oklahoma, did not want to comply with a “Patient Protection and Affordable Care Act” (“Obamacare”) requirement to pay for (female) employees’ use of certain contraceptives (those regarded as abortifacients) because of the religious beliefs of the owners.  Ultimately, the company prevailed in this case. The case was combined with that of Conestoga Wood Specialties, owned by Mennonites, in Pennsylvania.

The legal question sounds like a mouthful of words.  The Religious Freedom Restoration Act (RFRA) of 1993 and amending Religious Land Use and Institutionalized Persons Act (RLUIPA), 2000, stipulate (together, more or less) that a private party exercising religion may, when confronted by a government regulation or law, demand that the government measure meet “strict scrutiny” and pass a test of being the least restrictive means to achieve a compelling state interest.  But in general courts have been unwilling to allow religious exemptions to “laws of general applicability” because to do so would make every person a “law unto himself” with respect to religion, although that may sound like a libertarian goal (I even referred to the idea in the introduction of my first DADT book in 1997). 

The decision is limited to closely held corporations, where the owners are largely using their own money.  (I know this sounds silly, but that reminds me of Sonny’s bar in “Days of our Lives”.) It would not hold for publicly held companies using investor money through normal securities markets.  On the surface, Shapiro’s argument, that the decision protects the right of individuals to use their own personal resources as they see fit, according to conscience, seem to make sense.  On the other hand, Gans insists that the decision is precedent-setting, and that corporations, given other “rights” or perpetuity, should not have some rights that obviously can apply to individuals.  Employees, they say, are checking their rights at the door.  The libertarian will say, why should not a woman who wants to have her health insurance pay for a particular contraceptive simply work for a company or and owner with no particular objection? I’ve always felt a little uneasy about this particular issue in the ACA.  It sounds like asking for individual business owners to pay for someone else’s sexual intercourse.
On p. 61, there is a telling quote from Justice Alito, about “circumstances under which it is wrong for a person to perform an act that’s innocent in itself, but that has the effect of enabling or facilitating the commission of an immoral act by another.”  (“Enabling” was a dangerous word in the 1930s.)  That to me brings up a lot of previous debate about sexual “morality”, including even previous defense of now overruled sodomy laws. 
Keith Hughes explains the Hobby Lobby case here.
Amy Howe discusses the case on the Scotus Blog here.
In my own life, I’ve taken the idea that “who you work for” and how you earn a living – whether it creates conflicts with other moral beliefs – is something that matters.  This whole question, about a possible conflict back in the 1990s over publishing a book dealing, in large part, with gays in the military and at the same time working for a company subsidiary whose business depending on selling life insurance to military officers, led to a (beneficial) corporate transfer and relocation to Minneapolis in 1997, although I returned “home” with an “exodus” in 2003. 
Update: Feb. 3  
The Hobby decision was mentioned, though not favorably, in a case with an Oregon wedding bakery, see LGBT blog Feb. 3. 


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