Next week, the Supreme Court will hear oral arguments in a case that may alter the scope of the First Amendment. Against the backdrop of Arizona’s defunct “Turn the Gays Away” law and others like it, the Court will decide whether corporations have religious beliefs, and whether those beliefs can affect the rights of other people.
The case—actually the consolidated cases of Hobby Lobby v. Sebelius and Conestoga Wood v. Sebelius—is also another referendum on Obamacare. At issue in the case is the Affordable Care Act’s requirement that employer-provided insurance plans include coverage for contraception. The owners of Hobby Lobby and Conestoga Wood, both privately held companies, argue this mandate violates the First Amendment’s protection of the free exercise of religion.
If the Court goes Hobby Lobby’s way—and since the case also affords another bite at the Obamacare apple, it may do so—it will significantly expand the reach of the first amendment. And not in a good way.
First, the Court will have to decide that corporations are not only people, but people with consciences. Conservative “religious freedom” activists like to blur the lines between individuals and businesses. They talk about bakers and photographers, but Hobby Lobby is a corporation with $3 billion in revenues, 22,000 employees, and 550 stores around the country. Its owners, the conservative billionaire David Green and his family, argue that what happens to Hobby Lobby happens to them personally.
But this contention runs counter to the foundation of corporate law itself, which is that companies are legal entities distinct from their owners. If someone trips and falls in a Hobby Lobby store, the Green family isn’t liable (unless they acted negligently as directors). So why are they liable—legally or morally—for the company’s insurance plan?
Second, the view that corporations have consciences is incoherent. Corporate personhood is a legal fiction, not an ontological or soteriological fact. Conceivably, corporations can be said to have interests that give rise to freedom of expression—that was the holding of Citizens United. But corporations don’t sin, don’t go to hell, and don’t get saved by Jesus.
Third—and this is where most attention has focused—if corporations can opt-out of a general law regarding contraception, why not other laws? This is where Hobby Lobby connects to Arizona’s law. The whole purpose of “Turn the Gays Away” was to carve out religious exemptions to civil rights laws. Normally, a restaurant can’t refuse to serve a customer because she’s black, female, Jewish, or gay (or, obviously, white, male, Muslim, or straight). But if Hobby Lobby can assert a religious objection to contraception coverage, surely a restaurant can assert a religious objection to non-discrimination law.
In other words, a ruling for Hobby Lobby could make “Turn the Gays Away” the law of the land. As long as a company’s owners can provide a religious reason, they can opt-out of Obamacare, anti-discrimination laws, marriage laws, employment laws—you name it. Forget penis-shaped wedding cakes (yes, the Right is actually worried about this). We’re talking about Fortune 500 companies treating legal marriages unequally, hospitals denying gay spouses their rights, and, yes, denying healthcare to millions of women.
Now, it may strike readers as odd that, in 2014, we are debating the merits of contraception in the first place. Indeed, with nearly 90% of Americans believing birth control to be morally acceptable, most of us no longer are, which is why Hobby Lobby’s lawyers have focused on the “morning after” pill rather than birth control in general. Yet as Emily Bazelon revealed in Slate, a coterie of right-wing organizations has indeed lined up to oppose contraception itself.
Which gets to the heart of the matter: This case is really about the sexual revolution and the culture war. Hobby Lobby’s fundamentalist owners don’t like contraception, don’t like non-procreative sex, definitely don’t like extra-marital sex, and, I’m sure, don’t like homosexuality either. The Green family—net worth, $4.9 billion—is said to have donated over $500 million to Christian schools and universities, which in turn have produced the weird, parallel-universe lawyers who are now pursuing this case.
That, of course, is their right. But in trying to convince the rest of us that conservative Christian morality should be the foundation of our laws, they have lost at the polls, lost at the Supreme Court, and lost in the court of public opinion. Having done so, they are trying to redefine what is meant by “religious liberty” from a shield against government intrusion to a sword against the rights of others.
These same arguments were used in the 1960s and ‘70s, when the Right had lost the legal, constitutional, and moral battles against civil rights. Racist restaurateurs and racist universities said their religion compelled them to turn away African-Americans, notwithstanding what the Civil Rights Act had to say. They took their cause all the way to the Supreme Court, where they finally lost, in 1983 (Bob Jones University vs. United States).
In a concurring opinion in the Right’s favorite religious freedom case—that of a photographer found to have violated New Mexico’s antidiscrimination laws by refusing to photograph a same-sex couple—a Republican-appointed judge wrote that he sympathized with the photographers’ grave religious objections. But, he said, the price of participating in the open market is to play by the same rules as everyone else.
That is why corporations—large ones like Hobby Lobby and small ones like a photography shop—are people. Not because they have souls or sins, but because they are legally distinct from us as individuals, and bound by laws of general application. Denying contraceptive coverage while providing other insurance was found, in 2000, to be a violation of the Pregnancy Discrimination Act. In other words, it discriminates against women. It is undemocratic. That, not the gospel, is the law of the land.