Hobby Lobby - A Roundup

Required Reading

• What Hobby Lobby Means: How We Got Here, Where We're Headed, by Robert P. George. First Things 07/01/14:

  Hobby Lobby and the Greens, represented by attorneys from the Becket Fund for Religious Liberty, argued that the abortifacient mandates (1) substantially burden the practice of their faith; (2) are not supported by a compelling interest; and (3) do not represent the least restrictive means of pursuing the government’s objective of supplying these products to women. The Obama administration contested these claims and denied that RFRA protections apply at all to for-profit businesses (as opposed to religious organizations).

  The decision’s most important feature is its rejection of that contention. The five justices in the majority—Alito, Roberts, Scalia, Thomas, and Kennedy—explicitly reject it, thus establishing as a matter of law the proposition that RFRA protections can apply to for-profit businesses, and do apply to closely held corporations. It leaves open the question, which is probably purely theoretical, whether RFRA protections apply to large, publicly traded companies. Two of the four dissenting justices—Breyer and Kagan—decline to reach or opine on the question of whether RFRA protects for-profit businesses—pointedly refusing to join this aspect of the dissent filed by Justices Ginsburg and Sotomayor who, alone, contend that for-profit businesses do not enjoy RFRA protections.

• Ashley Macguire on Five False Perceptions About The Hobby Lobby Case (The Federalist 07/01/14).

• The Republic of Gilead is Not Nigh, by Julian Sanchez. Cato.org. 06/30/14 -- offering a libertarian perspective on the ruling, and the possible motives of those disappointed in it:

  In light of this, the outraged reaction to the ruling ought to seem a bit puzzling. If what you are fundamentally concerned about is whether women have access to no-copay contraception, then there’s no obvious reason to invest such deep significance in the precise accounting details of the mechanism by which it is provided. [Cut the hysterics already]. You might even be heartened by a ruling that so centrally turns on the premise that accomodation for religious objectors is required when no women will lack such coverage who would have enjoyed it under a mandate.

  The outrage does make sense, of course, if what one fundamentally cares about—or at least, additionally cares about—is the symbolic speech act embedded in the compulsion itself. In other words, if the purpose of the mandate is not merely to achieve a certain practical result, but to declare the qualms of believers with religious objections so utterly underserving of respect that they may be forced to act against their convictions regardless of whether this makes any real difference to the outcome. And something like that does indeed seem to be lurking just beneath—if not at—the surface of many reactions. The ruling seems to provoke anger, not because it will result in women having to pay more for birth control (as it won’t), but at least in part because it fails to send the appropriate cultural signal. Or, at any rate, because it allows religious employers to continue sending the wrong cultural signal—disapproval of certain forms of contraception—when sending that signal does not impede the achievement of the government’s ends in any way.

• About that matter of companies "denying contraception" to their employees... There has been plenty a-wailing and gnashing of teeth about companies "denying contraception", but it ain't necessarily so. Even Hobby Lobby "lavishes contraception coverage on its employees", covering 16 different types in its health plan.

  (Catholics may object to the offering of contraceptives in principle, but this is a Protestant organization -- and Protestants have generally been open to a wide range of contraception since the 1930's). What (some) Protestant and Catholic Christians share is the belief that life is sacred, and life begins at conception (the latter being not so much a "belief" as sound biological fact).

  So what Hobby Lobby (and seventy one other companies are actually objecting to paying for four specific contraceptives that are deemed abortifacients due to their capacity to either kill human beings when they are fertilized eggs, or prevent them from implanting themselves in utero, whereupon they die. This is what they deem morally objectionable on religious grounds.

  Functionally speaking, no employee of Hobby Lobby would be denied the normal range of contraceptives under their health plan, and Hobby Lobby employees are free to purchase emergency contraception of their own accord, just not on the company's dime.

• Yes, but isn't it hypocritical that Hobby Lobby "invests millions in companies that manufacture the very products they want to be exempt from covering in their employee health plans–products they believe cause abortions?" -- This is the counterargument advanced by Rick Ungar (Forbes.com), Grant Gallicho (Commonweal) and Molly Redden (Mother Jones). To this it may be rightfully objected that . Ryan Ellis (Forbes.com) makes short work of Ungar and Redden's criticism here, by pointing out that 401k plans are made by employees, not employers:

  Plan administrators contract with select mutual fund companies to provide basic investment products diversified by sector, asset class, duration, risk, etc. This is the primary goal of diversification of fund choices, not socially-conscious investing. Besides, it’s the employees who call the shots. They may not share the same values as the Hobby Lobby owners, and might have a very different idea of what a “socially responsible” fund would invest in…

  What does Mother Jones’ or Mercury Public Affairs’ 401(k) plan look like? Those are the employers of Redden and Ungar, respectively. Surely those 401(k) plans invest in stocks of oil and gas companies, defense contractors, private equity firms, and other evil conservative power bastions. Have Redden and/or Ungar done a forensic investigation of the mutual funds they are invested in? Should I call them hypocrites for daring to invest in a 401(k) which invests in a mutual fund which invests in a multinational company which happens to own an oil company? If not, consider that the Hobby Lobby employers have one more degree of separation even from Redden and Ungar. Our two intrepid reporters affirmatively chose to invest in merchants of death when they picked out their 401(k) choices. All Hobby Lobby is doing is providing the platform for employees to make those same choices themselves in partnership with plan administrators.

  Ben Domenech, The Federalist poses the challenge:

  The secular left needs to think bigger than just driving Christians out of the ability to practice their faith as business owners or allow their employees to invest in the stock market. They should start by noting it’s impossible for those who claim to be “pro-life” to live and work in certain states without being a hypocrite. Since the Hyde Amendment applies only to federal funds, states like New York, New Jersey, and California use state taxpayer dollars – a not insignificant amount of them – to pay directly for abortions. What this effectively means is that any of Ungar’s colleagues at Fox News who live in New York are thorough hypocrites if they pay their taxes. And yet they continue to do so! It is almost as if they are willing to render unto Caesar, even as they fight in courts and in the public square to change Caesar’s policies. Heck, Hobby Lobby itself even pays taxes in these states, where it does business! How stunning that these people are even allowed to be Americans, a country which was built by slaveowners and racists.

• Lastly, I concur with Bonchamps (The American Catholic), that this decision is something of a pyrrhic victory:

  [In the event of a Hobby Lobby win] my celebration will be muted and limited, however, because a legal victory will not address the underlying philosophical and cultural divide that brought this case before the court to begin with. Contrary to what some may believe, law is not the foundation upon which society rests; it is rather the adhesive we use to patch up broken pieces of society. The more laws, precedents, mandates, rulings and decisions we require to defend our basic interests and assert our rights, the greater indication we have of a society that is almost literally tearing itself apart.