Hobby Lobby supporters: Case was about owners' individual rights

Supporters of abortion and contraceptive rights demonstrate outside the U.S. Supreme Court in Washington June 30. (Reuters/Jonathan Ernst)
Supporters of abortion and contraceptive rights demonstrate outside the U.S. Supreme Court in Washington June 30. (Reuters/Jonathan Ernst)

by Vinnie Rotondaro

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In the week following the Supreme Court's June 30 ruling in Burwell v. Hobby Lobby, little to no unanimity could be found on its meaning at the legal level. At the same time, some are saying it could further divide the country at the level of the culture wars.

The 5-4 decision broke new legal ground by extending religious rights -- or religious personhood -- to closely held for-profit corporations, which constitute close to 90 percent of all companies in the U.S.

"I think the best way to understand it is that the owners of closely held corporations have religious liberty rights, and they don't surrender those rights when they incorporate into a business," said Douglas Laycock, a professor of law and religious studies at the University of Virginia School of Law. On behalf of a coalition of groups led by the Christian Legal Society, Laycock wrote an amicus brief in support of Hobby Lobby and its co-plaintiff, Conestoga Wood Specialties.

Those who agree with the decision, like Laycock, stress that the case was not about whether female employees will or won't receive contraceptive care, but about who should pay for it. They say the case ultimately boiled down to the individual rights of the owners in question: two religiously observant families who objected to paying for four kinds of contraception provided under the Affordable Care Act. The families, who believe that the contraception could cause abortions, argued that their beliefs should be protected under the Religious Freedom Restoration Act of 1993.

"The vehicle for enforcing those rights may run through the corporations," Laycock said, "but I think the Supreme Court was ultimately concerned about the individual in this, and that's how they describe corporations, as the way in which individuals can accomplish things."

The concept of corporate personhood became a political lighting rod in 2010 when the Supreme Court upheld, in Citizens United v. Federal Election Commission, that corporations had the right to make political expenditures under the First Amendment -- or, as was commonly said at the time, that "money equals speech." In 2011, then presidential candidate Mitt Romney drew controversy when he told a heckler at a state fair in Iowa that "corporations are people."

Before Hobby Lobby, there were no Supreme Court cases that addressed the question of a corporation's right to faith. But legal experts who agree with the decision maintain that corporate religious personhood isn't so far-fetched.

"A corporation is like a little private democracy," said Robert Destro, a professor of law and the founding director of the Interdisciplinary Program in Law & Religion at The Catholic University of America. "Nobody doubts that the people who come into it are people, and to say somehow that a corporation can't have First Amendment rights would mean to say that an incorporated newspaper can't have any First Amendment rights. It would be to say that a kosher supermarket doesn't have the right to close on the Sabbath."

"Catholic social teaching has a problem with the idea that, somehow, a corporation's job is just to make money," Destro continued. In the case of Hobby Lobby, he says, "the moral vision of the people who own a corporation is what was at stake."

Others beg to differ. In Hobby Lobby, the Supreme Court "unleashed a Pandora's box" said James Cox, a Duke University law professor who wrote an amicus brief on behalf of the government's position in the case.

"There are imponderables that will take the lower courts years or even decades to even frame an approach to," Cox said. "Where do we go to find a corporation's faith? In Hobby Lobby, it was pretty easy. We had a small number of owners who were homogeneous in their attitudes. But what happens if you have two owners who have different views -- one is pro-choice, one is pro-life?"

And then there is the logic of the decision itself, the extension of which, critics of the Hobby Lobby ruling say, will prove difficult to contain.

"I don't think anyone should forget about the gay rights issues," said Leslie Griffin, a professor of law at the University of Nevada known for interdisciplinary work in law and religion. "What about insurance for same-sex partners? The logic of Hobby Lobby says that if you own a restaurant, you can say you don't want my restaurant used for gay marriages. Then why wouldn't you win?"

Griffin continued: "The argument in the business context has always been that when you decide to become a business, you enter into a different world. The reasons you incorporate in the first place is precisely to get away from your personal identity -- you get certain benefits, but you also lose certain benefits."

Now legal experts like Griffin fear that corporate America may have what amounts to the best of both worlds, creating an air of uncertainty moving forward.

What is not so uncertain is that politicians, particularly Democrats, will likely use the Hobby Lobby ruling as a hammer to drum up electoral support and raise money, political observers note. On the day of the ruling, for example, the political news website Politico detailed how Democratic fundraising emails "went flying."

"It's disgusting: The Supreme Court just ruled that corporations can deny women insurance coverage for birth control," read one fundraising email from the Democratic Senatorial Campaign Committee, sent less than two hours after the decision dropped.

The polarization brought by the Hobby Lobby decision fits into a picture of a divided America. According to a report issued in June from the Pew Research Center for the People and the Press, "Republicans and Democrats are more divided along ideological lines -- and partisan antipathy is deeper and more extensive -- than at any point in the last two decades."

"Catholics who care about the common good and workers should be alarmed," said John Gehring, Catholic program director at Faith in Public Life, who believes the decision could hurt efforts to bridge divides. "Most Americans are fed up with the culture wars," he said.

Meanwhile, the reaction to the Hobby Lobby ruling shows that issues relating to sex and contraception continue to drown out other common good concerns, such as poverty and worker's rights.

The responses to the ruling "were examples of the 'obsession' Pope Francis warned us about ... not just in the church but among the elites of left and right," John Carr, director of Georgetown University's Initiative on Catholic Social Thought and Public Life, told NCR in an email.

"There are serious matters of religious freedom at stake, but non-stop, often exaggerated commentary on the consequences of the Hobby Lobby decision contrasts with virtual silence on the Court's decision delivered that same morning which makes it more difficult for unions to represent home health care workers."

"Powerful interests on both sides of the ideological divide prefer a continuation of the 'culture wars' for their own political and fundraising purposes, and avoid any real discussion or action on what to do about pervasive poverty and growing inequality," Carr wrote.

[Vinnie Rotondaro is NCR national correspondent. His email address is vrotondaro@ncronline.org.]

A version of this story appeared in the July 18-31, 2014 print issue under the headline: Ruling extends corporate personhood.

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