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By Tom Cushing

Love in the Time of Culture War, Part 2: Hobby Lobby

Uploaded: Mar 3, 2014

Part 1 Synopsis: AZ's ill-starred SB1062 and the upcoming Sebelius v. Hobby Lobby case before the US Supreme Court have much in common. Both are based on variants of the Religious Freedom Restoration Act (RFRA), and seek to promote exceptions from generally applicable laws based on religious conviction. Regardless whether Gov. Brewer's state veto was based on economic pressure or her dawning recognition that, in AZ's pre-enlightenment legal system, the bill was redundant, the Hobby Lobby case could have a much broader impact. Part 2 unpacks the issues and a few possible implications of 'Hobby Lobby.'

Hobby Lobby is a closely-held, for-profit corporation that operates 500 retail outlets, with 22,000 employees. Its founders object to the ObamaCare provision that all employer-sponsored health care plans must include free contraceptive and so-called 'morning-after' coverage. Specifically, it's the "abortifacient" drugs element (you will hear that word a lot this month, since it sounds vaguely sinister and easy to dislike, at least as compared to "pills" and "condoms"). Their objection is based on their sincere religious belief that life begins at conception. Thus, even a morning-after corrective is sinful in their belief system.

Accordingly, the RFRA looms large.

The RFRA is a 1993 federal statute that requires the federal government to demonstrate a "compelling state interest" in any action or requirement that interferes with a person's religion. Further, the feds must show that they have chosen the least interfering means of accomplishing whatever that very important goal may be. Here, the ObamaCare requirement is at-issue as impinging on Hobby Lobby's religion. At least two threshold issues have to be addressed before reaching the RFRA.

First, RFRA applies to all actions taken by the feds, but it is simply a statute. What happens when another, later federal law conflicts with it? They stand on equal footing, after all ? neither is constitutional in nature, and both have been upheld as being consistent with the Constitution's guarantees. It can be argued that the later-in-time law reflects the more current sense of Congress, and ought to prevail in case of a tie. The more traditional argument, however, is that if a later law intends to repeal an earlier one, it must say so. ObamaCare did not so state, and indeed, it looks like it was partly crafted in recognition of the RFRA's terms. The Hobbyists probably win this one.

Second, and more important, RFRA applies to "persons," and not explicitly to businesses or corporations. In order for RFRA to apply to Hobby Lobby, then, the term "persons" must be read to include for-profit corporations. We've seen this show before recently, in terms of the extension of certain free speech guarantees to companies making campaign contributions, in the abysmal, anti-democratic "Citizens United" decision (contrary comment from 'spcwt' hereby pandered). But the freedoms of speech and religion are different things, albeit they are contained in the same First Amendment.

Most places where corporations (which are artificial legal mechanisms intended to promote risk-taking in commerce) have been considered to be people (... too, my friends) relate to Property interests, as distinct from Liberty interests. Thus, they can sue in their own names, but not vote -- and no one has seriously suggested applying capital punishment to them, even when it's been richly deserved. Looking at You, Enron.

Religious exercise is a Liberty issue of the kind best reserved for homo sapiens. Here it might also be noted that the corporate titans are sitting this one out. Some eighty amicus briefs have been filed by interested outsiders ? none by the big dogs like the US Chamber of Commerce or Business Roundtable, who always bark at the Court. The only two commercial groups to file (both minority chambers of commerce) are opposed. Thus, Business is hardly clamoring to beat-in the vestry doors.

Further, corporatists don't like the implications of such an extension. Setting aside the thorny internal governance problems of deciding which beliefs to advocate, companies like their limited liability more than anything else in their existence. They do not favor "piercing the corporate veil" to make shareholders answer for corporate debts or actions. If that barrier gets breached in the opposite direction by the Hobby horses, it becomes necessarily weaker on the in-bound side.

Finally, and most pragmatically, I just think that when you form a for-profit company, you make some choices. You agree to get a license, comply with various laws, be taxed a certain way, and enjoy the many benefits of the corporate form. You give up the right to defraud your shareholders, bribe foreign officials and, I say, impose your religion on your employees. "It's just business." I predict, optimist that I am, that the Hobbyists lose here, and we all go home.

But let's say, just for argument that I'm wrong about that (it has happened). If the Supremes reach the question of what RFRA compels, then it's a very close question about who wins this case.

On the one hand, we are dealing with a Court that still includes several of the Justices who caused the passage of the RFRA because they had decided in a recent prior case that the Free Exercise did Not require government to demonstrate a compelling state interest before imposing a general obligation on a religious group. The "compelling state interest" that these Supremes would require might not have to be terribly, well, compelling.

The governmental interests in promoting contraception and family-planning generally are reasonably strong, as well, based on numerous realities that I can deal with in the comments if there's interest or dispute. It's also true that the burden and expense of an exemption would fall mostly on one sex, a fact that might not sit well with the Court. There's even an argument that exemption might violate the Establishment clause, by in-effect favoring some religions over others.

But I'm not sure any of this gets the government over the twin hurdles of truly Compelling interest as required in other settings, and Least invasive alternative available to accomplish the government's goals. The very best arguments to defeat the Hobbyists rest in the 'no extension to corporations' realm (albeit sole proprietorships, partnerships and the like would remain an open question, but all businesses of any size operate in one of the corporate forms).

And that's important, because what are the implications of a broad corporate right to religious exemption? Without wishing to scare the children and pets, they are potentially serious, and not-unlike the pre-empted Arizona bill dust-up. That proposed law was intended, after all, to codify the equivalent of a favorable Court outcome for Hobby Lobby.

Three species of impacts might be noted: on similar benefits issues and on other employee matters internally; and externally -- commercially in its business. In the past, court cases have dealt with individual religious objections to medical matters like blood transfusions, infertility treatment, stem cell transplants and mental health counseling. Presumably, these procedures could also be subject to the owners' health-care benefits-inclusion preferences, and any resulting restrictions would be spread, and their costs transferred, to large numbers of employees. Other, non-health-related benefits might not be immune, as well.

In the general employee realm, emboldened employer involvement/intrusion in employee lives would be likely. Religious freedom would butt up against other areas of law, like anti-discrimination (just exactly where IS a 'woman's place?') and the burgeoning field of off-hours privacy law (drinking? dating? dancing? drag-racing?).

And commercially, we'd be looking at untangling a thicket of questions regarding standards that might be imposed on one's customers and suppliers, depending on where in the country the business operates. At minimum, it's that kind of turmoil this case invites. Perhaps that provides the most compelling reason not to 'go there.'

Church/state conflicts are as old as the coexistence of these two governing institutions. The nation was founded on an ideal of maintaining maximum practical separation between them. Hobby Lobby would enmesh them in ways that appear to generate more heat than light. Better advice is contained in the words of a wise man who once famously said: "render unto Caesar that which is Caesar's; and unto God the things that are God's."