Godly hobbies and lobbies

Supreme Court of the United States
SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL
v.
HOBBY LOBBY STORES, INC., ET AL

Justice Wimberley, dissenting

I fully concur with the powerful dissent of my colleague Justice Ginsburg.

The claim of the plaintiffs also fails on separate grounds that her dissent does not go into and the majority opinion only superficially.

To establish any grounds for their claim, the plaintiffs must establish that their religious beliefs require them

  1. not to provide their employees with health insurance that includes contraceptive procedures they consider, against consensus medical opinion, to be abortifacients;
  2. as good employers, to provide their employees with comprehensive health insurance (except for the contraceptives).

I shall here address only the second claim. [Update] It is logically prior to the first. For if there is no religious obligation to insure, then putative obligations to insure in a certain way are trivial hypotheticals, no more worthy of the time of the court than the disputes between the Little-Endians and Big-Endians over the proper way to open a boiled egg (Swift, Gulliver’s Travels, Chapter IV). [/Update]

The Court has not asked for proof of these beliefs. In the former case, this makes sense. Evangelical Christians are known to be concerned about abortion to the point of obsession. Thousands of sermons, websites, books, articles, resolutions of synods, and demonstrations confirm this. However, the only evidence offered on the second claim is a bare assertion in the brief on the merits  (page 10, italics supplied):

Dropping insurance [....] would also harm the employees who currently depend on Hobby Lobby’s generous health insurance — and would undermine Respondents’ desire to provide health benefits for their employees, which is itself religiously motivated.

On the face of it the claim is incredible. What religion requires its followers, if they are employers, to offer health insurance to their employees? Orthodox rabbinical Judaism made the most comprehensive effort of any religion to provide guidance on the problems of everyday life – the everyday life of rural Poland in 1750, that is. It was unable to develop the scheme to deal comprehensively with the vastly more complex societies of the Industrial Revolution. In practice, all religions offer general principles of moral conduct, which adherents have to apply in daily life in the light of ordinary reason.

For religious people, everything they do is guided (or at least should be guided) in this way by their religious beliefs. As the dissent points out, it is quite impracticable as well as unsound in principle to extend the legal protections of religious liberty to all the actions of religious people with such a derived motivation. Such a sweeping view, giving priority in evaluating secular action to religious motives over all other rights and interests, would dissolve the notion of a common citizenship shared by those of all beliefs or none. The courts are therefore required unwillingly first to investigate whether a claimed religious exemption from the law is genuine, and not a scam or delusion; and second, to draw a boundary between protected religious action and unprotected action even where the latter’s motive is religious.

To pick an extreme and hypothetical example of the distinction. The Islamic jihadist leaders Osama bin Laden and Abu Bakr al-Baghdadi held and hold respectively three propositions:
1. The proper political order for Muslims is an Islamic state guided by sharia law under a caliph or other devout Muslim ruler.
2. Good Muslims should strive to bring about such an order.
3. Good Muslims should therefore engage immediately in unconstrained armed struggle, including acts of terrorism, to overthrow the corrupt pseudo-Muslim governments of nominally Muslim states and undermine by any means available their support by the United States.

Now proposition 1 certainly, and proposition 2 very probably, express religious convictions and expressions which are protected as the exercise of fundamental human rights. Were these gentlemen citizens of the United States, they would enjoy First Amendment rights to hold and expound these views. It is of interest, though not legally material, that proposition 1 would be endorsed by very large numbers of Muslims in the world, tens and perhaps hundreds of millions, and proposition 2 by a significant minority, in the millions. Proposition 3 is different. It is an inference from 1 and 2 that very few, a few thousands, are prepared to make, and the huge majority of their coreligionists condemn as an evil fantasy.

On the hypothesis of US citizenship, would we treat armed jihadism as a protected expression of religious convictions? Surely not. The religiously motivated actions of the owners of Hobby Lobby over health insurance are in no way comparable morally to those of the jihadists. However I have no difficulty in placing both outside the sphere of protected religious action.

To return to health insurance. The case for the Greens does not make the argument, but we can generously supply one. Their religion like others requires adherents to act justly and honestly in business dealings and relationships. Since they are owners of a company employing many workers, they ought to be a “good employer.” Thus far we can reasonably say we are still within the sphere of protected religious obligation. If a law were passed prohibiting the employment of left-handed individuals, they might well object strenuously to the injustice of the law, and refuse to comply out of Christian duty. I do not prejudge our own rulings on such a hypothetical case.

The next step is from “good employer” to “provider of health insurance”. As I observed above, they offer no evidence that their religion requires it, for the good reason that the evidence does not exist. There are no polemics, sermons, synodical resolutions, and so on canvassing the burning question of employer health insurance. It is simply country-club conventional wisdom among wealthy conservative businessmen that they ought to offer health insurance. The practice has solid business benefits: it keeps employees healthy, loyal and disinclined to move to greener pastures (sic); and it is favoured by public policy through tax breaks. These are not religious reasons.

The Greens could have made a moral argument, though they neglected to do so. In the absence of a national scheme of health insurance, most American workers have been in practice dependent on employer-based insurance for affordable and comprehensive group cover. The individual market was very expensive and indeed inaccessible to those with pre-existing health conditions. These factors therefore created a moral obligation on good employers to offer health insurance.

The argument had merit – up to the entry into force of the health insurance exchanges created by ACA. We can even concede that it had merit up to this May, since there was considerable doubt whether the complex scheme would work as planned. These doubts have been laid to rest. It is therefore open as a matter of law to all employers to close down their employment-based schemes and tell their employees to insure themselves on the exchanges, and they can confidently expect the transfer to work.

Since they will save a lot of money by doing so – the majority’s sketchy back-of-the envelope calculations to the contrary (page 34) are singularly unconvincing – employers can compensate employees with wage increases or refunds, or conceivably take out top-up policies as is commonly done by French and British employers. What religious duty can there possibly be to refrain from doing this? Perhaps the Greens prefer to keep a scheme because it increases their patriarchal control over their workforce, or makes them feel better. They are entitled to act in this way, but their claim that their religious beliefs force them to do so is ridiculous. I therefore find against them and for HHS.

In fact, since I am about to retire and this is the last opinion I shall deliver here, I shall in my turn overstep judicial propriety. The claim of the Greens I have demolished is not merely ridiculous, it is false. They do not honestly believe that they have a religious obligation to offer health insurance. Their lawyers have made up the obligation to fill an inconvenient gap in the argument. Nor do I believe that my colleague Justice Alito, who is not a fool in that sense though he is in the ones that matter, genuinely thinks they do either. He buys the lie because he needs to in the long siege of Roe v. Wade.

It’s been good knowing some of you.

* * * * * * *

Whatever good legal reasoning there may be in the above is due to my reading of Marty Lederman’s series of posts at Balkinisation. Don’t blame him for the rest.

Update July 2
In oral argument (h/t Jeffrey Toobin at the New Yorker), Justice Kagan broached my argument, asking Hobby Lobby’s lawyer Paul Clement:

I’m sure they want to be good employers. But again, that’s a different thing than saying that their religious beliefs mandate them to provide health insurance …

but then veered into another direction:

… because here Congress has said that the health insurance that they’re providing is not adequate, it’s not the full package.

The because here does not work. Congress’ intentions may erode the Greens’ secular concept of “good employer”, but not their religious motives, if they exist.

Comments

  1. paul says

    Wow, and I was still stuck back at Matthew 6:24, which pretty much requires that for-profit corporations in the US (with the possible exception of B-corporations where they exist) abjure claims of religious motivation.

    • JamesWimberley says

      A hard text. We wouldn't want to interpret it to mean that corporations should be run unequivocally on the principles of Gordon Gecko (Mammon all the time). Perhaps business should avoid claims to serve either. The Mulliez family businesses in France I mentioned in an earlier post on patrimonial capitalism (pre-Piketty!) seem to combine a patriarchal concern for the welfare of employees, inspired by social Catholicism, with a decent respect for their private lives. I don't suppose a militante for abortion rights would easily get on the fast-promotion management track, but that's a long way from Hobby Lobby's gynaecological overreach.

      • paul says

        In the US, there’s a pretty strong body of case law that says that “Mammon all the time” is in fact what corporations have to do, except when explicitly constrained by law or regulation. Suits about allegedly-lost value to the stockholder for periods of even a few weeks or months have prevailed or been settled at huge cost. Sure, the stockholders don’t always exercise that right, but they can.

        Maybe not in other countries, but in the US it’s pretty much accepted that corporations are required by law to acts as sociopaths.

        There are other forms of closely-held and family-run businesses, but they tend not to have the unlimited liability shield that a corporation shareholder gets.

        • JamesWimberley says

          Australia seems to allow corporations to behave ethically. It’s a long and thorough committee report from 2006, including material on the USA and other jurisdictions. On the fiduciary duties of directors, the authors found:

          The Committee considers that the current common law and statutory requirements on directors and others to act in the interests of their companies [...] are sufficiently broad to enable corporate decision-makers to take into account the environmental and other social impacts of their decisions, including changes in societal expectations about the role of companies and how they should conduct their affairs.

          Does Hobby Lobby now mean that there’s a religious defence in the USA for company directors, but not a humanist one, against shareholder accusations of insufficient loyalty to Mammon? Ginsburg is right, this one will run and run.

          • paul says

            Oh, yes. It’s already running with the call for exceptions to antidiscrimination rules.

            Your question about the shield for directors is an interesting one because this ruling (initially at least) applies only to closely-held corporations, where the rules about about what management (representing the majority) can do to minority shareholders are a little different. Someone with way more expertise would have to speak up.

            What interests me is the possibility that the religious shield might allow people to do things (related to discrimination or conditions of work or pay or other torts/crimes) in their corporate personas that they might not be able to get away with when acting as individuals. What the court has effectively done is to allow the owners of a closely-held corporation to “pierce the corporate veil” from the other side for purposes of acquiring additional rights for the corporation. But that apparently doesn’t mean piercing the veil in the usual sense of making the owners personally responsible for any of the corporation’s acts.

  2. J_Michael_Neal says

    Meh. My problem with this is more fundamental. The majority has decided that corporations are independent persons, except in this one narrow instance in which their existence as a separate legal entity disappears and they take on the characteristics of their owners. This decision relies upon the time honored principle that one's principles should disappear whenever it is convenient.

    • JamesWimberley says

      True. The point is ably covered by Ginsburg's dissent so there was no point in my reworking it less well. She draws a clear and understandable line between the unincorporated business – where the firm and the owner are one, and her religious convictions are necessarily the firm's – and the smallest incorporated one, which creates a distinct legal fiction called the company, incapable of religious belief.

  3. bighorn50 says

    For me, it is much, much simpler. Corporations cannot have religious beliefs, because corporations are not sentient (or even semi-sentient) beings. Or, to paraphrase a bumper sticker I saw,

    I’ll believe corporations are people when Texas executes one.

  4. EdWhitney says

    I have been looking in the Bible for guidance on whether the IUD is an abortifacient as the Hobby Lobby lawyers allege. Hezekiah 4:5-7 says that the presence of copper in cervical mucus inhibits sperm motility and that sperm migration through the endometrium is inhibited for both copper and levonorgestrel IUDs, which maketh the prevention of fertilization their primary mechanism of action. And Josiah 6:18-22 says that ova can be recovered from the fallopian tubes in 65% of cycles of fertile women not using any contraception, but in only 30% of women using copper IUDs.

    This all suggests to me that the IUD is not primarily an abortifacient even though the Court said that the sincere beliefs of Hobby Lobby owners were sufficient to give them the right to decide on covering them in their health plans.

  5. JamesWimberley says

    PS: Justice Kennedy, in his short concurring opinion (cited by Lederman here), makes a point of citing Justice Kagan’s dissent in Town of Greece v. Galloway. The citation itself is anodyne boilerplate. I think it’s a clear shout-out to Alito and Roberts that Kennedy will not go any further in Notre Dame in October. This is the pending case where a Catholic employer demands that its women employees not only be denied contraceptive coverage through the employment group policy, but also through direct reimbursement from the insurance company, the Jesuitical fix Alito allowed for Hobby Lobby.

    • bighorn50 says

      In my lifetime there have four Chief Justices of the Supreme Court of the United States: Earl Warren, Warren Burger, William Rehnquist and John Roberts.

      I pray that this steady decline in self-delusional mediocrity and kneeling at the throne of wealth ends soon.

      • RhodesKen says

        All four of those were appointed by Republican Presidents. In my view, the steady decline is exemplified by those Presidents, too.

        (By the way, I hope/assume you meant to cite the first of the four as a peak from which the subsequent incumbents declined.)

        • bighorn50 says

          Absolutely. Although in fairness, Eisenhower later claimed not to know what he was getting in Warren. I think that's at least slightly naive — Warren ran for Governor of California at least once on both the Republican and Democratic party tickets. His record as Alameda County DA doesn't support the idea that he was some sort of law'n'order guy, either.

          BTW, the second sentence should have read: … steady decline inTO self-delusional mediocrity …

          • Keith_Humphreys says

            Earl Warren was arguably the chief architect of Japanese-American internment in World War II, so it's not as if his California record made him look like a hippy.

  6. rachelrachel777 says

    In their brief, the respondents are claiming that their desire to provide health insurance for their employees is religiously MOTIVATED. What they’re not saying (and what you seem to want them to say) is that their religion REQUIRES them to provide insurance. Those are two separate things. I had a friend who was Roman Catholic, and whenever he went to McDonald’s on Friday he got the Filet-o-Fish sandwich. He had a religious motivation, but his religion did not REQUIRE him to abstain from meat on that day.

    Also, and maybe more to the point, is that this bit about the health insurance being religiously motivated wasn’t part of their argument. It is presented as part of the “Factual Background.” The argument, which is presented in a later section of the brief, does not stand or fall based on whether their decision to provide health insurance for their employees is religiously motivated.

    I don’t think it’s very precise to say that “medical opinion” says that the four disputed birth-control methods are contraceptives rather than abortifacients. It’s medical terminology. The botanist says that the squash is a fruit, while the cook tells me that the squash is a vegetable.

    Contraception is defined as the prevention of conception. I checked several medical dictionaries, and they all seem to agree that “conception” can mean either (a) fertilization or (b) implantation. Implantation is what conventionally marks the beginning of a pregnancy.

    However, if you take conception to mean fertilization, then any methods that prevent an already fertlized egg from being implanted would not properly be considered contraception. A reasonable term for these methods would be an abortifacient. There is nothing about this view that is contrary to science; it follows logically from science and from certain metaphysical suppositions.

    If you think that a fertilized egg has the moral status of a human being (I don’t, but I understand that some people do) then you must see a very serious problem with paying for these methods of birth control.

    The question about whether the Religious Freedom Restoration Act (RFRA) covers corporations is a pretty simple one. According to the Dictionary Act:
    http://www.law.cornell.edu/uscode/text/1/1

    In determining the meaning of any Act of Congress, unless the context indicates otherwise . . . the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals;

    It’s Congress who said that a corporation is a person, not some judge. If you think it’s silly that a corporation can be considered a person, don’t blame the judges.

    Does RFRA apply to corporations? Well, there’s nothing in the text of RFRA to suggest otherwise, so the most straightforward reading of it (following the Dictionary Act) would be that it does. If Congress had wanted to exclude corporations, they could have done so explicitly.

    Following the principle that the best way to understand what a law says is to read it, the most reasonable interpretation is that Congress, when they passed RFRA, meant it to apply to corporations such as Hobby Lobby.

    • JamesWimberley says

      You are suggesting that the Greens and Hahns have a vague and non-binding religious motivation for providing health insurance – other things being equal, God gives you brownie points, but not to worry. It’s true Clements hides the issue, because it's logically far more important than even Ginsburg spotted. For a law that makes carrying out such a weak obligation difficult or impossible is not a serious burden on anybody’s conscience. In your analogy, the government bans MacDonald’s fish nuggets on health grounds, so your Catholic friend has to go elsewhere to eat fish. So what? For the case to hold, it has to be a real obligation. It is not and they made no argument that it was. Find me something in Rerum Novarum, Mater et Magistra, or Pacem in Terris that suggests that providing private health insurance when there is a perfectly good public alternative is a part of Catholic social teaching. Find me anything at all on the evangelical Christian side.

      I tried in my post not to get involved in the literally sexier contraceptive issues because everybody else is. But medical opinion on whether IUDs are abortifacients is not open to discussion. Hobby Lobby may redefine a scientific term in its own idiosyncratic way, but there’s no reason for the courts to respect errors of fact.

    • bighorn50 says

      If you think that a fertilized egg has the moral status of a human being (I don’t, but I understand that some people do) then you must see a very serious problem with paying for these methods of birth control.

      If you think some people make specious arguments to try to throw sand in the gearbox that is our social system (I do, and this case and the decision are good examples) you would be right. In support of my claim above, note what the Supreme Court did for Wheaton College.

      The only possible good I can see coming out of this is the miniscule probability that this idiocy will drive us to a single payer system. Getting there is going to require threading a needle with a camel.

    • J_Michael_Neal says

      Does RFRA apply to corporations?

      I still maintain that this is irrelevant because of the question I mentioned earlier: How does a corporation have religious beliefs? It is held to be legally separate from its owners.

      • bighorn50 says

        There you go trying to apply logic to an ideologically motivated decision.

    • RhodesKen says

      "In determining the meaning of any Act of Congress, UNLESS THE CONTEXT INDICATES OTHERWISE …" (emphasis mine)

      Rachel, what your citation clearly and unequivocally demonstrates is that in the case of a religious exception to a law, a corporation is NOT a person. Corporations do not have religion, they do not have religious beliefs, they do not have any beliefs. Only human persons have those. The context could not be any clearer.

      Interestingly, what this also shows is that a sole proprieter who chooses to identify his business to the IRS as a closely held Type S Corporation abandons the religious exception he would have otherwise been entitled to had he simply chosen to call his business a Sole Proprietership. That's even more far reaching than I had previously realized.

  7. JamesWimberley says

    PS: Alito and Kennedy swore blind it was a terribly narrow decision that wouldn't make Hobby Lobby's female employees worse off. Ginsburg feared it was the tip of a fat wedge. Well, look at what's happening already.

  8. James Wimberley says

    PS2: Wheaton is even crazier than Hobby Lobby. This college claims that filling in a form violates its conscience because the form will trigger the reimbursement of contraceptives under the carve-out. Can’t they just send a letter? But the letter will trigger the contraceptive cover, after going through more hoops – which makes the college just as complicit in sin, following Alito’s holy-pretzel logic. Wheaton facilitates sin even more by hiring men and women who may have sex on their own time using contraceptives paid for out of their wages, and its leaders do so by paying taxes to a government that spends some of them on reimbursing contraception through Medicaid and the VA. They should have been told in robust language to get a life, or move to Antarctica.

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