Mar 25, 2014

Hobby Lobby questions

Nota bene (3.26.14): The transcripts of oral arguments in this case are available here.

The Supreme Court is scheduled to hear a major religious liberty case in 90 minutes of oral arguments today. In Hobby Lobby vs. Sebilius and Conestoga Wood Specialties vs. Sebilius, the court will decide whether or not for-profit corporations can get religious exemptions to the health care law that mandates employers provide insurance that covers birth control.

The case has generated more than a little commentary and culture warring. A lot of people think a lot is at stake in this case. The issues are complicated enough that there are lots of good reasons and plausible arguments, though none so overwhelming as to be as conclusive as partisans might hope.

The arguments and analysis have been extensive, not to mention the parts of public discourse that are more passion than information.

I've found, however, after reading a lot of that, and reading the legal briefs on these cases, and working through the arguments with some smart students from Heidelberg and Pepperdine universities in two extended workshops, I still have some questions. These aren't arguments, but questions. They go to the heart of the case, it seems to me. Or rather, the hearts, since this beast of an issue surely has more than one circulatory system. They go to the hearts of the matter, then, and yet haven't been answered in the extensive, extensive argumentation about this case.

When the Supreme Court hears this case, and the lawyers representing employers' religious liberty go against the lawyers representing individuals' rights to health care, these are the questions I'll be asking:

1. What's the difference between a for-profit corporation and a non-profit corporation?

The key question in this case is whether or not for-profit corporations can have religious rights.

Since the Citizens United ruling in 2010, the political left has spent a lot of energy attacking this idea that corporations are somehow, legally, persons. The claim that they're not has been pretty politically effective, putting pro-business conservatives in a terribly awkward position. Such is the stuff of politics.

Legally, the case isn't quite this clean.

Constitutional protections extend to corporations in more than a few cases that aren't controversial (at least in the mainstream of American politics). They have the Fourteenth Amendment right and a Fifth Amendment right to due process under the law. They have the Fifth Amendment protection against double jeopardy and Fourth Amendment protection against unlawful searches and seizures. They have the Sixth and Seventh Amendment rights to a trial by jury. Few seem outraged by these instances; rejecting the legal doctrine of corporate personhood, if one is going to be consistent, would have consequences reaching much further than campaign ad funding.

One could perhaps argue that the First Amendment protections of speech and religious exercise are just different. Yet, with regards to this particular case, that's not the argument. The federal government is actually not taking the position that corporations cannot have or exercise religion. They're taking much more limited position that for-profit corporations can't have or exercise religion.

Churches and many other religious organizations are, in the eyes of the law, corporations. They're not-for-profit, of course, but still corporations.

It seems clear that churches in some sense exercise religion. It seems clear that many non-profit organizations have religion. No one appears to be objecting to the idea that churches are constitutionally protected as churches under the First Amendment. These are, then, legal entities that, for the purposes of the law, are treated as persons.

In the left's case against Hobby Lobby,et al, this has been glossed over. It's been argued that it's obvious that corporations can't have religious rights, because they're obviously not people. In the Hobby Lobby case, however, the crux is not whether or not corporations can have religious rights. Everyone agrees that some do. The argument, rather, is about whether or not there's a distinction between the non-profit corporations that have religious exercise protected by the Constitution, and for-profits that don't.

To put it another way: can corporations serve both God and mammon? And if not, why not?

As the district judge ruled in the lower court, this question goes into "largely uncharted waters."

In court, the case will have to be much more subtle than the one that has happened in the public discourse. How will the governments' lawyers articulate this distinction, where non-profit organizations can get religious exemptions to the health care law, but for-profits can't?

2. Your religion tells you to do what?

No one doubts the religious commitments of the owners of Hobby Lobby.

It's true that the owners' concerns about the details of the varieties of birth control covered in the company's insurance policy can be seen as motivated more by politics than religion, but nevertheless. The litany of decisions they've made that prioritize religious belief over making money is often repeated. And convincing. The owners certainly see their business practices as religious practices, their company as a physical manifestation of their faith. Their commitments are sincere.

But what are they, exactly?

The original lawsuit specifies that the owners are evangelical, and hold the Bible to be authoritative in their lives. It claims that they're opposed to abortions for religious reasons, and that their beliefs prohibits them from "forbid them from participating in, providing access to, paying for, training others to engage in, or otherwise supporting abortion-causing drugs and devices."

The suit specifies that not "providing access to" and not "otherwise supporting" should be considered an exercise of religion. These are prohibitions, rather than proscriptions. That's common enough in various religious practices there's no reason it should raise any eyebrows. Yet, here, the claim about the religious prohibition is extended also to others' actions. Not only can you not do the prohibited thing, you can't help others do that thing either.

This is also not particularly strange. Secular law prohibits murder and also assisting others with murder. In secular law, though, there are pretty clear specifications of the conditions of what counts as assistance.

In the religion of the owners of Hobby Lobby, what counts as "otherwise supporting"?

One of the key arguments against Hobby Lobby et al is that the laws protecting religious practice are "a shield, not a sword." That is to say, they protect religious practice, but do not empower anyone to insist that others behave in particular ways. In the words of a lower court judge,
The burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by [the] plan, subsidize someone else's participation in an activity that is condemned by plaintiffs' religion. This Court rejects the proposition that requiring indirect financial support of a practice, from which plaintiff himself abstains according to his religious principles, constitutes a substantial burden on plaintiff's religious exercise.
Hobby Lobby's lawyers have responded that they're not claiming the religious right to have employees not use birth control. They can go and buy it with their paychecks. The owners are, rather, claiming the religious right not to themselves contract with an insurance company that provides the objectionable health care.

Yet, why is paying someone money that they will use to violate your religion's prohibition not prohibited as "otherwise supporting"?

In civil society, everyone is always indirectly involved in others' activities. Every form of work involves enabling others to do things that, conceivably, the person doing the work might object to. The law should conceivably protect people from being forced into some forms of indirect assistance, but there will need to be some argument about when, and where, and how much.

There are, in every moral arguments, lines. Pointing out that there must be lines and asking where they are is not, in itself, an argument. Nevertheless, this case centers on a religious practice of a prohibition against indirect assistance of a prohibited action, and that's a doctrine that has been, at best, very poorly articulated. It would even be fair to say that it actually hasn't been articulated.

Where are the lines in this religion? Why are they there?

3. What are the consequences for corporate law?

Whether or not they're legally to be counted as persons, corporations are legal entities. As such, they're separate from their shareholders and distinct from their owners. This, in corporate law, is called the "corporate veil," and it's apparently essential to corporations.

The veil is the legal doctrine that the corporation is a separate entity from owners. This means that the corporation's liability is not the same as the owners'. If the corporation goes bankrupt, the owners are not legally required to pay the company's debts. Incorporating limits the owners' liability, which one of the main reasons people do it. The articles of incorporation specifically separate the individuals from the company.

Hobby Lobby et al, though, have made the argument that the owners and the company they own are the same for the purposes of religious exercise. The owners' beliefs are the corporations. The business is a religious action for them. If that argument prevails, the distinction would appear to collapse, and one of the main legal benefits of incorporating would disappear.

As Howard M. Friedman writes,
the pleadings filed in many of the contraceptive mandate challenges purposely blur this line, collapsing the beliefs of the business with its owners, inviting 'piercing' . . . Courts that have allowed businesses to assert the religious exercise rights of their owners have rarely, if ever, referred to the 'piercing' cases brought by corporate creditors against business owners. This omission hides the unintended consequences that may be in store for small business owners who identify too closely with their business firms. These owners may be unaware of the new personal liability for business debts -- including liabilities to the government -- that they are risking by equating themselves with their business for purposes of religious expression. They may be inadvertently inviting the government to hold them to their word -- that they and the business are one -- when it comes to other matters as well.
So, what happens if that happens? What are the consequences for these companies, but also for other corporations?

These are the questions I'll be asking when the court hears the Hobby Lobby et al vs. Sebilius case today, and when the rulings are handed down later in the term.

There are reasons -- and I think good reasons -- to come down on either side of this issue. If there was ever an example of value pluralism, this is one. There are, I think, especially compelling arguments to be made that this legal battle has only arisen because of other problems that persist in troubling the current system (such as the link between employers and health care). There is, of course, a lot of sound and fury in these sorts of conflicts, but the issues raised are nonetheless worth considering with some nuance.