Aristotle believed that law is “reason free from passion.” If he had witnessed the Hobby Lobby controversy, he might have changed his position.
On March 25, 2014, the Supreme Court heard arguments in Sebelius v. Hobby Lobby Stores, Inc. The name of the case was changed to Burwell v. Hobby Lobby Stores, Inc. after Sylvia Mathews Burwell replaced Kathleen Sebelius as the Secretary of Health and Human Services on June 9, 2014.
In the months since, observers on both sides have characterized the case as one of the most significant in recent history. Some who side with the government warn that a ruling in Hobby Lobby’s favor would be “an unprecedented decision that could affect 90% of all corporations and open a ‘Pandora’s Box’ of discrimination.” Some who side with Hobby Lobby claim that “this is about whether the federal government is forcing people to violate their own faith.”
What are the facts behind the rhetoric? And how does the Supreme Court’s ruling affect you?
The Hobby Lobby story
In 1970, David Green took out a $600 loan to start a hand-built picture frame business in his garage. His company became Hobby Lobby, a corporation which today employs more than 25,000 people in 556 stores (with 70 more scheduled to open in 2014) and earned $3.3 billion in 2013.
There are now 12 Hobby Lobby-affiliated businesses, all headquartered at an Oklahoma City, Oklahoma corporate office with 4.2 million square feet for manufacturing and distribution. According to its founder, “the foundation of our business has been and will continue to be strong values based on biblical principles, including integrity, service to others and giving back to those in need.”
David Green grew up with six siblings, all of whom followed their father into pastoral ministry. David is serving the Kingdom in his own way. He has helped distribute more than 1.4 billion copies of gospel literature in more than 100 countries. The Green family’s foundation is building a Bible museum five blocks southwest of the U.S. Capitol to house 40,000 biblical texts, artifacts and antiquities. They will invest as much as $800 million in the museum.
They have also funded a multimillion-dollar effort to create a Bible curriculum they hope to place in public schools nationwide. Their curriculum will debut this fall as an elective at Mustang High School, a few miles from their Oklahoma City headquarters. Their text presents Adam and Eve as historical figures and introduces God as “faithful and good,” “gracious and compassionate,” and “an ever-present help in times of trouble.” Steve Green, current president and son of Hobby Lobby’s founder, recently told the National Bible Association that their goal is to “reintroduce this book to the nation.”
The company is committed to work-life balance for its employees. Stores are open only 66 hours a week and close most nights at 8 PM. They are always closed on Sundays. All full-time employees can register in a benefit plan that is generous for the retail industry. They offer an on-site health clinic at their headquarters open to all full-time employees.
The case before the Supreme Court
On November 26, 2013, the Supreme Court agreed to hear Sebelius v. Hobby Lobby Stores Inc., a case rising out of the company’s refusal to provide contraceptive health care coverage it considers “abortifacient” (causing abortions). The specific wording of the case:
Here’s the background. The Patient Protection and Affordable Care Act of 2010 (ACA) requires most insurance plans to provide preventive care services without out-of-pocket expenses for employees. All FDA-approved contraceptives are part of these required packages. The Green family has no objection to 16 of the 20 FDA-approved contraceptive drugs and devices that are mandated by the ACA, but they object to drugs or devices that have the potential to terminate a life as they define it.
In their view, life begins when the egg is fertilized. As a result, contraceptives which prevent fertilization do not cause abortion and are thus acceptable. However, Plan B and Ella are “morning after” pills that can prevent implantation of the fertilized egg in the mother’s womb. Some intrauterine devices (IUDs) can also prevent a fertilized egg from implantation. These devices, together with the “morning after” pills, are the contraceptives which, in the view of the Green family, kill the fertilized egg and thus cause abortion. They object to these drugs and devices on pro-life, religious grounds.
The Religious Freedom Restoration Act of 1993 (RFRA) was intended to prevent laws that substantially burden a person’s free exercise of his or her religion. It has been applied to the ACA in three ways.
First, churches and other strictly religious employers are exempt from the ACA’s contraceptive requirement. Second, nonprofit and religiously affiliated organizations such as hospitals and universities are not required to provide contraceptives directly. However, they must make them available to employees through a third party such as their insurance carrier. Numerous cases challenging this ruling are still pending.
For-profit companies form a third category, one that is not exempt from the requirements of the ACA. As a result, Hobby Lobby faced fines of $1.3 million per day if they did not comply with the federal mandate. They could cancel their health plan to avoid obeying the mandate, but did not feel that this was in the best interest of their employees and would put them at a competitive disadvantage with other employers.
As a result, Hobby Lobby filed suit seeking protection under the RFRA against the ACA’s contraception mandate. Conestoga Wood Specialties, a company that makes kitchen cabinets and was founded by Mennonites, filed a similar suit. The two have been considered together by the Supreme Court.
In a landmark ruling in June 2013, the U.S. Tenth Circuit Court of Appeals ruled with Hobby Lobby, finding that the Greens have the right to conduct business in a way that is consistent with their religious beliefs and noting that the ACA mandate substantially burdened their faith under RFRA.
The next month, a federal court granted a preliminary injunction that prevented the federal government from enforcing its mandate against the Greens and their family businesses. In October 2013, the Greens agreed that the Supreme Court should
consider the matter.
What the ruling means
In arguing the government’s position, some have claimed that:
- A corporation is not a person. The RFRA’s protections as written are intended for a “person.” If they can be extended to corporations, how will the state separate one person from another within that corporation? Is the Act to protect the founder? The CEO? The board? The shareholders? What if founders/leaders/persons within the corporation disagree regarding religious beliefs?
- Hobby Lobby’s argument would lead to unending litigation. Would persons within the company file suit against other members of the corporation in order to advantage their personal beliefs?
- How will the rights of employees be protected? Imagine that the leader of a company is a Christian Scientist and wants to withhold health insurance from her employees. Or suppose that the leader is a Jehovah’s Witness and wants to exclude blood transfusions from his company’s health benefits. What about leaders whose beliefs lead them to oppose vaccinations? What if the leader believes on religious grounds that women or minorities should not be treated equally?
- If Hobby Lobby prevails, will we see a host of founders and leaders claiming a variety of religious exemptions for their companies? What if a CEO claims to disagree on religious grounds with a war being waged by the government and refuses to pay taxes which support that military effort? What if a Muslim employer wishes to extend spousal benefits to multiple wives of male employees?
In arguing for Hobby Lobby’s position, some have claimed that:
- The government’s position could presumably be used to force Hobby Lobby and other companies to pay for abortions and for other procedures that violate consensual faith standards. What if a future federal mandate requires employee coverage for euthanasia, sex change operations, or genetic engineering of human embryos?
- A corporation is not a person, but it is composed of persons and has no independent real existence apart from them. For this reason, the law holds corporations liable for the acts of individuals working within the scope of their employment. If the Court does not recognize a corporation’s right to religious freedom, it denigrates that right for the employees of the corporation.
- Free speech is not restricted to persons. Corporations make movies and television shows. Hospitals make policies governing abortion and end-of-life care. Corporations express their values (actually, the values of their members). If we restrict religious freedom to persons, we restrict freedom of religious speech to persons and remove this right from the corporations through whom persons speak.
- The government must not be allowed to dictate policy to private enterprise except when, on rare occasions, it has a compelling interest to do so for the welfare of the general public. In the Hobby Lobby case, employees can purchase the abortifacient contraceptives in question easily on the open market and at little cost. By imposing its mandate unilaterally on all private companies, the government makes companies less private. Will entrepreneurs and investors be less likely to work within the free enterprise system if that system can be so coerced by the federal government?
So, what did the Court decide? On June 30, the justices issued their long-awaited ruling. By a 5-4 vote, the majority found that Hobby Lobby and Conestega, as private for-profit companies, have the right to refuse government-mandated contraceptive coverage based on their religious convictions. However, this ruling applied only to such privately-held companies and related specifically to the Obamacare contraception mandate.
{source}<iframe style=”float: left; border: 1px solid #000000; background-color: #C0C0C0; padding: 2px; margin: 10px; -moz-border-radius: 3px; -khtml-border-radius: 3px; -webkit-border-radius: 3px; border-radius: 3px;” width=”400″ height=”225″ src=”http://www.youtube.com/embed/fNYJHCxwx9E?rel=0″ frameborder=”0″ allowfullscreen></iframe>{/source}Justice Samuel Alito, writing for the majority, stated that “RFRA applies to regulations that govern the activities of closely held for profit corporations like Conestoga and Hobby Lobby” and that “the HHS contraceptive mandate substantially burdens the exercise of religion.”
He added, “the Government has failed to show that the contraceptive mandate is the least restrict means of furthering that interest.” However, the majority opinion was written narrowly so as only to apply to the contraception mandate, not to religious employers who object to other medical services, such as blood transfusions or vaccines.
In fact, the Court made it clear that the government can provide coverage to female employees. And it strongly suggested it would reject broad religious claims used, for example, to discriminate against gay employees.
Nonetheless, Justice Ginsberg issued a strong minority opinion in which she objected to this “decision of startling breadth” and warned that the justices “ventured into a minefield” in which their ruling could open the door to all sorts of discrimination by employers on religious grounds. By contrast, Lori Windham, senior counsel at the Becket Fund for Religious Liberty (the group representing Hobby Lobby) claimed: “This case demonstrates that Americans don’t give up their religious freedom when they open a family business. The court understands that religion isn’t limited to what you do in a synagogue on Saturday or a church on Sunday.”
While the justices ruled as narrowly as they could to prevent precedents beyond this specific case, this was the first time the RFRA has been used to provide protection for a for-profit corporation. According to the Becket Fund, there are 49 similar cases that will be affected by the Court’s decision.
Four reflections
This is obviously a very significant ruling. I will leave legal experts to discuss the broader ramifications of the Court’s decision for other litigation. My purpose in this essay has been to explain the case briefly and then to consider its cultural and biblical implications. In that context, I’d like to share four reflections.
One: the Court’s ruling is good news for those of us who worry about the future of religious freedom in our society. A large majority of Protestant pastors in America believe that religious liberty is under attack. The Supreme Court, by extending the protection of the RFRA to private for-profit companies with reference to the Obamacare contraceptive mandate, has issued a decision in favor of religious freedom. Such liberty is one of the hallmarks of American law and society. Perhaps this value will not be viewed in the future as conflicting with religious pluralism, but rather as essential in our day of moral relativism and competing religious claims.
Two: the Court wisely intends to protect employees from discrimination by employers on religious grounds. I worried that a Hobby Lobby victory could mean that employers could discriminate against vaccines, or divorced employees, or blood transfusions on the basis of religious objections. Since the Court applied RFRA only to the government’s contraceptive mandate, broader uses of its ruling should be difficult. At the same time, the narrowness of the decision will make it less a victory for religious employers than some had hoped.
Three: I admire the Green family for their commitment to the sanctity of life. It would have been easier for them to refuse insurance for their employees, but they wanted to advocate for life, for their employees, and for religious freedom.
Four: I do not view the Court’s narrow decision as a window to the culture regarding this issue or the larger question of religious lib
erty. Before the ruling, a majority of Americans told pollsters they disagree with giving private employers the ability to choose contraceptives to cover under their health plans. Only 35 percent agreed with Hobby Lobby and Conestoga Wood.
Religious freedom is one of those principles everyone supports until it comes at a personal cost. It’s easy to defend your right to free speech until you speak against me. It’s easy to defend an employer’s right to religious liberty until we disagree with the employer’s use of that liberty.
Thomas Jefferson was my favorite president, in part because he argued so strenuously for religious freedom. He once stated, “All persons shall have full and free liberty of religious opinion; nor shall any be compelled to frequent or maintain any religious institution.”
Like Jefferson, our goal should be a free church in a free state. John Leland, a colonial Baptist leader, noted in 1791: “Government has no more to do with the religious opinions of men, than it has with the principles of mathematics. Let every man speak freely without fear, maintain the principles he believes, worship according to his own faith, either one God, three Gods, no God, or twenty Gods; and let government protect him in so doing.”
Freedom of religion, for religion, and from religion was the founders’ intent. The fight to protect this precious liberty continues, as it always has and always will.
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