Hobby Lobby: The Left Is Weeping Hot, Bitter Tears, and It Should

by David French

Andrew’s and Molly’s post reflecting the hysterical reaction on the Left to the Hobby Lobby decision makes for both entertaining and instructive reading. It’s entertaining because — regarding the issue they claim to care most about, access to contraceptives — the decision blocks exactly no one from obtaining the drugs they choose to purchase. There’s just slightly less free stuff on the market. This is hardly Handmaid’s Tale territory.

It’s instructive because it demonstrates the extent to which the Left is emotionally and ideologically committed to the power of the regulatory state. For some time, the Left has been selling the public and the courts on the notion that somehow the act of forming a corporation and opening for business operates as an effective waiver of your most basic liberties, including free speech, free exercise of religion, and virtually the entire panoply of property rights. In effect, your business is not “your” business at all, but instead all aspects of its operations exist at the whim of the state, and if the state wants to draft you into its child-killing abortion crusade — or wants to muzzle you during political campaigns – then you best salute and fall in line.

By holding that RFRA protects closely-held businesses, the Supreme Court upheld not just the plain meaning of federal statutes but also common sense. In fact, the Obama administration admits that nonprofit corporations can exercise religious-liberty rights, so is the problem the corporate form, or the intent of the corporation? Justice Alito, writing for the Court, notes the irony:

We see nothing in RFRA that suggests a congressional intent to depart from the Dictionary Act definition, and HHS makes little effort to argue otherwise. We have entertained RFRA and free-exercise claims brought by nonprofit corporations, see Gonzales v. O Centro Espírita Beneficiente União do Vegetal, 546 U.S. 418 (2006) (RFRA); Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. ___ (2012) (Free Exercise); Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1993) (Free Exercise), and HHS concedes that a nonprofit corporation can be a “person” within the meaning of RFRA. This concession effectively dispatches any argument that the term “person” as used in RFRA does not reach the closely held corporations involved in these cases. No known understanding of the term “person” includes some but not all corporations. The term “person” sometimes encompasses artificial persons (as the Dictionary Act instructs), and it sometimes is limited to natural persons. But no conceivable definition of the term includes natural persons and nonprofit corporations, but not for-profit corporations.

The desire to make money does not act as a waiver of constitutional or statutory rights, nor is it morally suspect, but it certainly is indispensable to a system of free enterprise that all too many on the Left view as the enemy of “social justice.” As one of my colleagues at the ACLJ stated (full disclosure: We filed seven lawsuits against the mandate, filed an amicus brief in the Hobby Lobby case, have two mandate cases before the Supreme Court now, and have filed more than a dozen amicus briefs against the mandate nationwide), “If anything rivals the Left’s passion on the abortion issue, it’s their commitment to the regulatory state.”

When a case combines elements of both issues, for the Left a loss is cataclysmic. And if much of your public “argument” depends on creating a sense of cultural inevitability, then a dramatic halt to the latest leap forward of the allegedly unstoppable sexual revolution and regulatory state is a cause for leftist weeping indeed.