Hobby Lobby: Your Thoughts

Andrew Sullivan —  Jun 30 2014 @ 3:25pm

Readers are far less sanguine about the ruling than I was. One writes:

You should be appalled, not reassured, by the Supreme Court’s ruling on Hobby Lobby precisely because it’s such a narrow ruling. The Court has ruled that only the religious views of abortion opponents count. The views of other religions do not count – Jehovah’s Witnesses (no blood transfusions), Orthodox Jews (no vaccinations on the Sabbath), Christian Scientists (no doctors, period). The narrowness of this ruling not only exposes it as the most blatantly political since Bush v. Gore, it is also the most blatantly Catholic – the result of having five Catholic conservatives in the majority.

Another reader thinks the narrowness of the decision is misleading:

I’m surprised that language in the majority opinion is read so credulously. The underlying reasoning in an opinion is more important than bald statements like “this opinion doesn’t mean that our reasoning can be taken to its logical conclusion.” Yes it does. That’s why we keep winning handily every time Lawrence v. Texas and its progeny (Windsor) comes up. Lawrence explicitly said “this case is not about gay marriage.” Scalia’s dissent howled that it in fact does – and he was right. Lawrence led directly to Windsor and every court that has considered the issue has cited Windsor (and its predecessor, Lawrence) for the proposition that marriage equality is a constitutional mandate. Pretending that Alito’s one throwaway sentence in this opinion somehow immunizes the reasoning from being applied to other areas looks to me like a refusal to grapple with the actual reasoning of the opinion.

About those other areas:

All the “reassuring language from Alito” you quoted specifically says that his opinion only addresses the contraceptive mandate because mandatory coverage of blood transfusions and vaccines weren’t a part of the case. He didn’t actually shut the door on another closely held company making a RFRA claim that mandatory coverage of blood transfusions or vaccines abridges religious freedom. If anything, he’s swung the door wide open for these kinds of cases. I could easily see a company make the argument that a person getting HIV is being punished by God for sinful behavior and treatments like Truvada abrogate punishment for that.

And the ramifications could continue:

I’m no lawyer, but I don’t understand why the objection to the compulsion of a small-business owner who is also a Jehovah’s Witness to provide transfusion coverage (or the compulsion of a Scientologist to provide his employees mental health coverage) would be any less legitimate.

Another reader:

What happens to women who take birth control for noncontraceptive reasons? Should Hobby Lobby be required to comply with the law for these women since they are not violating any religious beliefs? If so, would a woman have to promise Hobby Lobby she won’t use birth control for contraception to get covered? How would that work exactly? And by that same logic, is Hobby Lobby then exempt from having to provide other medications that have contraception as a side effect? Like chemo, for example?

But Hobby Lobby never opposed most kinds of contraception, including the pill. As we noted earlier:

The company objects to paying for morning-after pills and inter-uterine devices, but freely provides insurance that covers tubal ligation, birth control pills, condoms, diaphragms and contraception delivered via a patch or ring inserted into the cervix. More than 80% of all contraception users in the U.S. rely on these methods.

Update from a reader, who catches a typo in that excerpt from Kate Pickert:

Vaginated Americans – even the worst spellers among us – would note the inherent comic hopelessness of any such things as “inter-uterine devices” before letting that misprint meet the pixels of day (it should be “intrauterine” of course). Powerful as sisterhood gets, there is no device to link us up at the uteri.

Heh. Another reader:

I see others have already tread this ground, but I fail to see how Alito’s “caution” that

this decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs.

… is in any way reassuring, because of the underlying principle that this decision, and Citizens United represents. It has granted limited liability corporate entities individual rights. The fact that a company is closely held or publicly traded should be immaterial; a corporation is not an individual, and therefore shouldn’t be granted rights ascribed to individuals by our constitution.

In fact, the only way the Religious Restoration of Freedom act applies to Hobby Lobby or any other corporation is if you explicitly decide that when Congress wrote a law protecting individuals, they implicitly meant corporations, too. But Congress doesn’t write laws that way; they know the difference between these two.

But if that’s the way that so-called conservative jurisprudence wants to go, they also need to consider this: If there’s no separation between the individual religious beliefs of business owners/controllers and their operations, why should there be any separation of liability. I’d like to see the legal logic that says you can have one without forfeiting the other.

Another:

I share your view of the opinion.  Although I haven’t read the whole thing yet, the holding is much narrower than it might have been.  It may also be a Trojan horse for the shareholders of corporations like Hobby Lobby.  As things stood before the opinion, shareholders enjoyed nearly absolute immunity from liability provided by the shield of the corporate entity.  The fundamental exception has been in cases where a corporation, usually as a result of commingling of funds, can be deemed the “alter ego” of its shareholders, or a group of shareholders.

What happens now when a corporation, through its policies and actions, becomes liable as a result of its execution of the religious biases of its shareholders?  Does the corporation become the alter ego for that limited purpose?  The full opinion probably carves out an exception to the exception to provide ongoing confidence in the integrity of the corporate entity theory. However, I think a creative plaintiff might argue that the justification underlying the holding (in certain closely-held corporations religious belief of the owners may be attributed to the corporation for purpose of compliance with certain statutory mandates) opens the door to liability.  In availing itself of a special, statutory immunity by virtue of assuming the religious beliefs of its owners, the corporation AND the owners become liable for torts arising from actions taken in the name of those religious beliefs.

Who knows?  Stranger things have happened in the wake of “narrow” opinions.