Sep 14, 2012

The religion of Hobby Lobby

The 28th lawsuit against the Obama Administration's "birth control mandate" was filed this week. This one was filed of behalf the chain of arts-and-crafts stores, Hobby Lobby.

According to Christianity Today, Hobby Lobby is "the first non-Catholic business to file suit."

While the question of what it means, exactly, for a for-profit corporation to "have a religion" is still not clear to me, this case also involves the question of what, specifically, Hobby Lobby's religion is supposed to be. It's not Catholicism, but what is it? The document filed in U.S. District Court in Oklahoma City is fairly vague on this point. It says "evangelical," mentions "Jesus Christ" and "biblical," but does not specify a church, nor any authority the Obama administration could have consulted for case-specific clarification of the religion's position on moral issues relating to insurance coverage and birth control methods.

Moral issues which, judging just by the explanations offered by the Becket Fund for Religious Liberty lawyers, are complicated:

According to the suit, the arts and crafts store's specific religion is not opposed to birth control per se, but only to birth control that is "abortion causing." This means specifically birth control that prevents fertilized eggs from implanting in the uterus. Moreover, the company's religion not only prohibits those who adhere to the religion from themselves using such forms of birth control, but also, "forbid[s] them from participating in, providing access to, paying for, training others to engage in, or otherwise supporting abortion-causing drugs and devices."

The breadth of "otherwise supporting" is obviously problematic. It's the kind of injunction with implications that would have to carefully explicated by a religion's ethicists and theologians.

But who are the authoritative experts of Hobby Lobby's religion?

According to the lawsuit, the unnamed religion defines the prohibition against "otherwise supporting" certain forms of birth control as meaning certain sorts of compensation packages that could potentially be used to fund birth control are not allowed, while other forms of compensation packages that have that same potential are not a problem. Why? It's not clear. The religion apparently requires believing companies (?) not to participate in or provide access to morning after pills or IUDs. The prohibition against "otherwise supporting" does not, however, extend so far as requiring a company not pay the salaries of people who could possibly use the money they've earned to pay for these forms of birth control. But it does require the company to not pay employees with insurance coverage that those employees could possibly use for morning after pills or IUDs.

The case is, as I read it, built on this explication of the requirements of the religion of Hobby Lobby.

Not providing insurance that covers certain birth control methods is defined in the suit as the "practice" of this religion, and thus protected by the "free exercise" clause of the First Amendment. The suit claims that the birth control mandate, by levying a fine on those businesses that fail to provide HHS-approved health insurances, is effectively fining those businesses that adhere to this religion of Hobby Lobby's for the practice of their religion. This is the main claim of the suit: "Having to pay fines for the privilege of practicing one's religion ... is alien to our American traditions of individual liberty, religious tolerance, and limited government. It is also illegal and unconstitutional." This is reiterated by the statement put out by Dan Green, the founder and CEO of Hobby Lobby, when the suit was filed. He said“By being required to make a choice between sacrificing our faith or paying millions of dollars in fines, we essentially must choose which poison pill to swallow."

At least part of the argument in the case, then, has to be that this really is an exercise of a religion. 

And that argument would seem to require some specificity as to what religion this religion is that has these beliefs.

The closest the suit gets to naming a religion is naming a very broad religious tradition, i.e., "evangelical," and mentioning that the trust that runs Hobby Lobby is run by the Green family, and the family and trust have a statement of faith that has to be signed by trustees:
"By its own terms, the trust exists first and foremost 'to honor God with all that has been entrusted' to the Green family and to 'use the Green family assets to create, support, and leverage the efforts of Christian ministries.' The trustees must sign a Trust Commitment, which among other things requires them to affirm the Green family statement of faith."
This, then, becomes a key question of this suit. First, there's the question of whether a for-profit business can have a religion, in the sense entailed by the First Amendment's protection of religious practices. Second, specifically with this case, Hobby Lobby, Inc. vs. Sebillius, there's the question of whether a "religion," or, more, an "establishment of religion," can for legal purposes be a family's religion, where what the religion is and what it requires and entails are defined by a family.

This second question seems quite tricky: if it is the case that the Green family religion is a religion, fully protected by the First Amendment, is there a limit to what that family could define as its religion's required practice? Could the family in principle disregard any labor law or business regulation or tax requirement they chose on the grounds it violates a practice of the family religion?

If the Green family religion is not a religion, though, and not protected, then who or what authority determines the legitimacy of a religion for the purposes of First Amendment protection? And wouldn't that be problematic if the Constitutional protection is going to extend especially to those minor religions without the cultural capital necessary to accrue recognitions of legitimacy?

It's an important but also peculiar problem raised by this question of the religion of Hobby Lobby. What counts as a religion?  And what the definition of "religion" should be understood when we read that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof"?

To me, at least, it doesn't seem clear that there's a worked-out answer to that.