Tags: Hobby Lobby

Why Americans Want Politicans to Push Around Their Employers


There’s a thread that ties the Democrats’ arguments on the employer-covered contraceptive coverage mandate and their push to raise the minimum wage to $10.10 per hour: We’re going to make your employer give you something you want.

People rarely turn down things that they’re offered for free.

Before those of us on the Right commence fuming about “makers” and “takers,” we probably ought to think about why swaths of the electorate are so receptive to this message, and so eagerly buy into a narrative where they are the victims of their miserly bosses, and the heroic white knight of Democrat-run big government must come in and give them what they deserve.

Throughout the past three decades, without any real national debate or referendum, American workers found themselves in an era of fierce foreign competition. Goods are easily imported, and services increasingly can be handed elsewhere as well. First your telemarketer or help line was serviced from Bangalore, then it became an electronic voice menu. (“I’m sorry. I did not understand your answer. Please try again.”) Companies periodically embraced “outsourcing” and “offshoring,” utilizing cheaper labor in other countries. Mass illegal immigration increased the supply of labor, particularly manual labor.

“Chainsaw Al” Dunlap, a corporate executive who built a notorious reputation for mass layoffs at Scott Paper and then Sunbeam, helped create the modern iconic villain of a corporate executive willing to throw away his own workers in pursuit of a higher stock share price. The perception of callous and greedy corporate executives long outlasted Dunlap, who was tossed out at Sunbeam in 1998. American workers feel that their employers aren’t loyal to them, so they feel no need to reciprocate that loyalty.

Wage growth is “down from the end of 2008, broadly flat over the past decade, and on an inflation-adjusted basis, wages peaked in 1973, fully 40 years ago. Apart from brief lapses, like in the late 1990s, wages have been falling for a generation.”

There are times when those thriving the most will observe the difficult time that those once considered “middle class” are having, and rather openly say that they don’t care or that it reflects some meritocratic punishment for Americans who have grown too entitled:

The U.S.-based CEO of one of the world’s largest hedge funds told me that his firm’s investment committee often discusses the question of who wins and who loses in today’s economy. In a recent internal debate, he said, one of his senior colleagues had argued that the hollowing-out of the American middle class didn’t really matter. “His point was that if the transformation of the world economy lifts four people in China and India out of poverty and into the middle class, and meanwhile means one American drops out of the middle class, that’s not such a bad trade,” the CEO recalled.

I heard a similar sentiment from the Taiwanese-born, 30-something CFO of a U.S. Internet company. A gentle, unpretentious man who went from public school to Harvard, he’s nonetheless not terribly sympathetic to the complaints of the American middle class. “We demand a higher paycheck than the rest of the world,” he told me. “So if you’re going to demand 10 times the paycheck, you need to deliver 10 times the value. It sounds harsh, but maybe people in the middle class need to decide to take a pay cut.”

Easy for him to say!

Note that a striking percentage of Americans don’t like their jobs: “Approximately 70 million Americans either hated their jobs or were simply ‘checked out,’ according to a recent Gallup survey of America’s workforce.”

That Gallup survey found that one of the biggest factors in an employee’s engagement is the opinion of the boss – more consequential than pay level, hours, benefits, and workload. “Managers from hell are creating active disengagement costing the United States an estimated $450 billion to $550 billion annually,” wrote Jim Clifton, the C.E.O. and chairman of Gallup.

Obviously, these things are subjective, but maybe Americans really have worse bosses than a generation ago. Mocking the boss has always been a comedy staple — Office Space, Dilbert, Horrible Bosses — but maybe people laugh because they relate all too well. They feel like their hopes, dreams, and life’s path are blocked, indefinitely, by the pointy-haired micro-manager. No wonder they cheer a Democratic officeholder who pledges to make the boss give you more stuff.

Mitt Romney and other Republicans spent a good portion of 2012 singing the praises of “entrepreneurs,” and perhaps many Americans heard that as singing the praises of their bosses — or more likely, the founder of the company that hired them, whom in most cases they’ve never even met.

Of course, you won’t get very far in life if you see your boss as your enemy. Ideally, it’s a partnership. But that requires a positive, flexible, mature attitude on the part of the employee — and the boss as well.

Companies will argue that no one sets out to hire a bad manager — true enough — and that they’re giving their workers the best deal that they can, setting their wages at the market rate. Still, some of America’s businesses are sitting on piles of cash — $1.64 trillion among U.S. non-financial companies at the end of 2013. If America’s businessmen are worried about the growing atmosphere of resentment, populist anger, demonization of the wealthy, then throwing that money around — whether it’s on higher wages, new hires, new product research and development, or plant expansion — might persuade frustrated, increasingly cynical Americans that the companies that employ them aren’t such bad guys.

Is this the face of America’s employers?

Tags: Economy , Business , Office Space , Barack Obama , Hobby Lobby , Minimum Wage

Clinton: Hobby Lobby Ruling a Step Toward What You See in ‘Undemocratic,’ Extremist Countries


Hillary Clinton thinks the Supreme Court’s ruling in the Hobby Lobby case on Monday is a step toward the kind of anti-women policies seen in extremist, “undemocratic” nations.

The Supreme Court found that employers with religious objections can opt out of the HHS mandate to provide coverage for contraception. 

“It is a disturbing trend that you see in a lot of societies that are very unstable, antidemocratic, and frankly prone to extremism,” she said at the Aspen Institute on Monday. 

In such societies, the former secretary of state explained, “women and women’s bodies are used as the defining and unifying issue” to bring men together. These men “behave in ways that are disadvantageous to women but which prop up them because of their religion, their sect, their tribe, whatever.”

Tags: Hobby Lobby

Making Pluralism More than a Hobby


After the initial celebration of Monday’s majority decision in the Hobby Lobby religious-liberty case before the Supreme Court, the loudest cheers of joy and gratitude came when the women of the Becket Fund – the legal team that argued Hobby Lobby’s case — appeared on the Court steps. One of those women, Hannah Smith, senior counsel at the Becket Fund for Religious Liberty, talks about the case and the future of the Department of Health and Human Services Obamacare abortion-drug, contraception, sterilization mandate and religious freedom.

Q: How big of a win is the Hobby Lobby victory?

A: The Supreme Court’s decision in Burwell v. Hobby Lobby is a big win for the Green Family, for the Becket Fund for Religious Liberty (who represented Hobby Lobby in court), and for people of faith everywhere. The majority opinion authored by Justice Alito (joined by Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas) leaves no doubt that closely held family businesses can exercise religion within the meaning of the Religious Freedom Restoration Act (RFRA), that the government’s HHS mandate creates a substantial burden on the exercise of religion here, and that the government has alternative less restrictive means of accomplishing its goals. In the decision, the Court addresses for the first time since RFRA’s passage some 20 years ago several critical questions under the statute that will positively impact those cases where the government continues to battle non-profit religious ministries in the lower courts.

Q: What’s most striking to you about the ruling?

A: The majority opinion’s detail and comprehensiveness. This opinion is a tour-de-force by Justice Alito. On every question, the opinion methodically responds to each of the government’s erroneous arguments with precision and careful attention. The opinion leaves no stone unturned.

Q: Should non-profits breathe a sigh of relief?

A: Yes, the 100-plus non-profit religious ministries — like Little Sisters of the Poor (an order of nuns caring for the elderly poor), Eternal Word Television Network (a Catholic network founded by a cloistered nun), and Wheaton College (an evangelical college) — currently litigating the HHS mandate in the lower courts should breathe a sigh of relief for three reasons.

Keep reading this post . . .

Tags: Hobby Lobby

Hobby Lobby Ruling Applies to More Than Just Abortifacients


The Supreme Court’s ruling in Hobby Lobby and Conestoga yesterday was narrow in some ways, but not in every way.

Some commentators are mistakenly suggesting that the decision only applies if someone objects to the same “four” early-abortion causing items that the Court said the Hahn and Green families object to.

The HHS Mandate requires more than those four items: Employers must cover emergency contraception and intrauterine devices, but also other birth-control products and sterilization methods. Catholic owners and groups have generally objected to covering all these items, while Evangelical or Protestant folks have objected only to those they consider abortifacients.

But the Supreme Court’s protections for religious freedom apply to those who object to all of the HHS Mandate, not just to those who object to some of it.

This is clear for several reasons. First, as I noted previously, the Supreme Court issued several orders Tuesday morning after ruling on Hobby Lobby, in which it upheld rulings in favor of other families and vacated rulings adverse to other families challenging this mandate. But all of those families happened to be Catholic, and they objected to any abortifacient, sterilization, or birth-control coverage.

Second, the Hobby Lobby ruling itself is not limited to objection only to certain abortifacient drugs and devices. In fact, in the “substantial burden” discussion of the ruling,  it tells the government that it cannot parse a religious objector’s beliefs.

Third, when the Court says the mandate fails the “least restrictive means” test, it points to the fact that the government is providing exemptions and different arrangements for other entities. But those exemptions and other arrangements include health plans that object to the entire HHS mandate, not just to parts of it.

Finally, the Supreme Court favorably cited its ruling for the Little Sisters of the Poor, for whom it said they could express their religious objection and be exempt from the mandate even if they don’t fill out the government’s forms. The Little Sisters of the Poor are Catholic, and they object to the entire list of abortifacients, sterilization, and birth-control items in the mandate.

To be clear: Obamacare also requires “preventive services” such as cancer screenings. The Hobby Lobby/Conestoga decision does not address objections to those items, or to anything else, because no such objections exist. These cases only involve the framework of abortifacients, sterilization, and birth control. But they involve that entire framework. For more than 40 years, conscientious objections to abortion, sterilization, and related items have been protected together, as in the one of the amendments named after Senator Frank Church (42 U.S.C. § 300a-7).

Thus there’s no reason to interpret the Supreme Court’s ruling as only protecting objections to a few items considered to be abortifacients. The entire HHS Mandate is a violation of the Religious Freedom Restoration Act for someone who religiously objects.

— Matt Bowman is senior legal counsel with Alliance Defending Freedom at its Center for Life in Washington, D.C.

Tags: Hobby Lobby

MSNBC Bubble: ‘Everybody’ Thinks Hobby Lobby Ruling Was Bad


One hundred percent of MSNBC viewers early on Tuesday apparently disapproved of the Supreme Court’s ruling in the Hobby Lobby case.

On Way Too Early on Tuesday, host Thomas Roberts wrapped up the show with a summary of a survey of viewers. According to Roberts, every single participant said they thought the Supreme Court ruled incorrectly in protecting religious freedom for private business owners.

“This is the first time ever that we haven’t gotten anybody that’s in support of what the other side has done,” he said. “So everybody doesn’t think this is a good idea.”

Roberts added that health plans that provide Viagra but not contraception are “kind of a contradiction.”

Tags: Hobby Lobby

What Pro-Lifers Won, and Didn’t


Avik Roy argues that pro-lifers and opponents of Obamacare “haven’t won a thing” in Hobby Lobby. He says that the Supreme Court “endorsed” a version of the Obama administration’s mandate — its “accommodation” of religious institutions — that many conservatives have denounced. I don’t think that’s right: Alito’s majority opinion does not “endorse” the accommodation. The Religious Freedom Restoration Act says that conduct exemptions from laws and regulations must be granted when they impose a substantial burden on faith and when there are less restrictive means of advancing a compelling governmental interest. Alito argues that the exemption shows that there are less restrictive means available, and thus exemptions from the full-blown mandate are required. He explicitly denies judging the question of whether the accommodation itself can survive RFRA. Justice Kennedy’s concurrence is (surprise!) murkier, and some observers worry that it signals his openness to the accommodation. But even that concurrence does not definitively endorse it. (Ed Whelan has a lot more worth reading on this issue.)

Roy continues: “[W]hile the government can’t compel Hobby Lobby to finance abortifacients, it can compel taxpayers to do so. Isn’t that a distinction without a difference?” I think there is a difference. The government can let pacifists out of military service without letting them out of paying taxes to support the military, and nobody believes that distinction meaningless. Pro-lifers should object to having their tax dollars spent on abortifacients. But it’s worse for pro-lifers to be forced to offer insurance that covers them. It’s worse because it requires more direct cooperation on their part, and because it carries a greater risk of communicating an untruth about their moral conviction.

Roy’s arguments and mine bear a family resemblance to ones that got aired during the debate over the individual mandate. Most opponents of it argued that there was a difference in principle between being forced to pay taxes that are then used to provide insurance and being forced to buy insurance. If you think that argument holds up (as I do, and most conservatives do), the distinction holds up here as well.

Tags: Hobby Lobby

More on the Accommodation Alternative


In the wake of yesterday’s Hobby Lobby ruling, there is, not surprisingly, quite a lot of speculation whether the so-called HHS mandate “accommodation” satisfies RFRA. With apologies for heading into the weeds, I offer some tentative observations on this matter:

1. On SCOTUSblog, Lyle Denniston states that it is “rather difficult” to read passages from Justice Alito’s majority opinion and Justice Kennedy’s concurrence “as anything other than a declaration” that the accommodation is “good enough.”

I disagree. Alito says explicitly, “We do not decide today whether an approach of this type [i.e., the accommodation] complies with RFRA for purposes of all religious claims.” He states only that the accommodation “does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well.” As he puts it in a footnote, “The less restrictive approach we describe accommodates the religious beliefs asserted in these cases, and that is the only question we are permitted to address.” (Emphases added.)

In short, Alito clearly doesn’t reach the question whether the religious nonprofits currently subject to the accommodation may successfully challenge it under RFRA on the ground that facilitating insurance coverage by a third party (of morally objectionable drugs and devices) violates their religious beliefs. 

Kennedy’s language, I will acknowledge, is murkier. Denniston focuses on a passage in which Kennedy, in discussing the accommodation, states that “RFRA requires the Government to use this less restrictive means.” But, in context, this seems like just an imprecise way of stating that the government loses in Hobby Lobby because a less restrictive means is available (whether or not that less restrictive means would itself satisfy RFRA). Further, given that no one briefed or argued in Hobby Lobby whether the accommodation would satisfy RFRA and given the serious legal questions about how the accommodation would actually work, I think that it would be extraordinary to read into Kennedy’s brief remarks any judgment that the accommodation is fine. (Denniston,  I should note, nicely highlights some of the questions about how the accommodation would work and concludes that challengers to the accommodation “would have quite a strong argument” that the issue “actually remains unresolved.”)

2. As Denniston reports, yesterday evening the Supreme Court, over the recorded dissents of Justice Breyer and Justice Sotomayor, temporarily barred enforcement of the accommodation against Wheaton College, a religious nonprofit. If the justices in the Hobby Lobby majority had concluded that the accommodation satisfies RFRA, they would have had no reason to grant this temporary relief. Note also that the justices, in footnote 9 of the Hobby Lobby opinion, describe the relief from the accommodation that they previously provided the Little Sisters of the Poor in a way that is reasonably read, and has evidently already been read, to support extending that relief to other religious nonprofits who are challenging the accommodation.

To be sure, it’s possible that the justices in the majority have formed the tentative judgment that the accommodation is okay if the objecting employer isn’t required to complete the self-certification form that doubles as an authorization to its third-party administrator. But, as Denniston points out, government lawyers have argued that, without the employer’s authorization, the third-party administrator won’t have the legal authority to provide the objected-to coverage.

3. I emphasize again that the fact that the Court recognized the accommodation as a less restrictive means in no way implies that the Court must think that the accommodation itself would satisfy RFRA. Indeed, just three days before the Court’s ruling in Hobby Lobby, the Chief Justice illustrated the principle in a closely analogous context. As I discuss in point 3 of this post on the ruling on the buffer-zone law, the Chief Justice, in the course of discussing whether the law was narrowly tailored, “identif[ies] a number of less-restrictive alternatives that the Massachusetts Legislature might have adopted” while making clear that he is not endorsing the constitutionality of any of those alternatives.

Under RFRA, the government has the duty to show that a burden on a person’s exercise of religion is the least restrictive means of furthering a compelling governmental interest. When the Court identifies a less restrictive means than the one the government has adopted, that suffices to show that the government hasn’t met its duty.

4. On the Corner, Matt Bowman, who has been litigating lots of challenges to the HHS mandate (including the accommodation), reminds us that the Seventh, Tenth, and D.C. Circuits have already ruled that the HHS mandate does not serve a compelling governmental interest. As Bowman points out, nothing in Hobby Lobby overrides circuit precedent on that issue. Given the clarity that Hobby Lobby provides on the threshold question of substantial burden, it ought to be easy for challengers to the accommodation to get past that threshold. Once they do so, those in the Seventh, Tenth, and D.C. Circuits will prevail on lack of a compelling governmental interest.

Tags: Hobby Lobby

Abortion Advocates Downplaying the Science of Abortifacients


Being present when the Supreme Court announced the Hobby Lobby decision on Monday was a moment of joy I will never forget. I was standing next to two friends who are mothers and lawyers and who work professionally to build a culture of life. The three of us were surrounded by about a hundred young, smart, enthusiastic pro-life women who were cheering at the news. It was a culminating moment of emotion and a feeling of justice that will not easily be dimmed.

Afterwards, I sensed a spirit of desperation from abortion advocates. I was a bit shocked at their dishonesty about issues related to “access” and their overall mischaracterization of the decision. The poor folks who run SCOTUSBlog were the unfortunate recipients of misdirected anger and vitriol about the decision (SCOTUSBlog is a private blog sponsored by Bloomberg Law and unconnected to the court).  But perhaps most tellingly, abortion proponents are actively trying to downplay the science of the drugs and devices in question in the case.

A few years ago I researched this topic in preparation for testifying before Congress on the HHS mandate. My findings proved that it was scientifically valid to believe that conception and pregnancy begin at fertilization, not implantation; in fact, three out of four American medical dictionaries supported this position until recently, according to one analysis. Furthermore, a number of drugs and devices included in the mandate have mechanisms of action that can prevent implantation; that is, they can cause an early chemical abortion. Examples include the morning-after pill and intrauterine devices (IUDs). In the case of one drug, “Ella,” the mechanisms of action can work post-implantation. For a more in-depth information, please see this study, specifically the section on “abortion inducing drugs.”

There is a world of difference between a drug that prevents life and a drug that can destroy life in its earliest and most vulnerable stages. The HHS mandate and the Supreme Court’s decision in Burwell v. Hobby Lobby provide an excellent opportunity to educate the public about such life-destructive drugs and devices. Women deserve the right to know how they work upon their bodies and the nascent life in their wombs. 

— Jeanne Monahan is president of the March for Life.

Tags: Hobby Lobby

Birth Control Not Same as Blood Transfusion


I have long given up on those who loudly claim the mantle of “rationality” on the left actually being rational. They are political. It is their lifeblood.

Example: In the wake of the clearly correct Hobby Lobby decision–based on the Religious Freedom Restoration Act (RFRA), a statute signed by Bill Clinton and passed by overwhelming bipartisan margins–I have heard tripe that the decision would permit Jehovah’s Witness employers to refuse to cover blood transfusions since that church’s theology is opposed to transfusions.

Nonsense. First: Birth control is elective, and indeed, I would argue not a “medical treatment,” but rather, a “consumerist” prescription or procedure (with the rare exception, perhaps, of women for whom a pregnancy would be life threatening.).

A blood transfusion, in contrast, is unquestionably a medical treatment and is almost always non-elective, e.g., it is necessary to save life or preserve health of the patient needing the transfusion. If you think that this distinction is wrong, note that the law can force blood transfusions upon Jehovah’s Witness children when necessary to save life. It can’t (yet) force children onto birth control.

Second: The RFRA does not provide that the state can never force individuals to violate their religious beliefs, but that when it does so, there must be a compelling state interest. The state clearly has a compelling interest in requiring such coverage–assuming regulations were passed to so do–generally not existent with birth control because such transfusions are usually needed to save lives or preserve health.

So, there really is no proper comparison here. The bitter complaints about the Hobby Lobby illustrates, as so often happens these days, that the political left prefers demagoguery to discourse.  

For more of my take on the RFRA, see here.

Tags: Hobby Lobby

Hobby Lobby Round-Up


What should we make of the Hobby Lobby ruling? The following is a decidedly uncomprehensive guide to the conversation so far, with an emphasis on the arguments I find most interesting and convincing. I reserve the right to add to this list. 

Ramesh Ponnuru has been dispelling various misconception about the decision, pointing out that the contraception mandate at stake was not part of the legislative debate over Obamacare (and indeed that a number of pro-life Democrats would have opposed the legislation had it been a part of the statute) and that Congress can simply pass a law that explicitly exempts itself from the Religious Freedom Restoration Act (RFRA). He has also addressed the illogic of some aspects of Justice Ginsburg’s dissent, including her (bizarre) claim that “religious organizations exist to foster the interests of persons subscribing to the same religious faith,” which makes religious organizations sound rather a lot like labor unions. 

Joey Fishkin, a liberal law professor and author of the (very interesting) new book Bottlenecks, argues that while the substantive health policy implications of the decision are “miniscule,” and though it sets up an “an ambiguous, future-litigation-inviting test” (closely-held firms ought to be treated like sole proprietorships under the Religious Freedom Restoration Act, but can other private firms be treated as such as well?), the case is best understood not as a case about health policy, but rather as a case about “the politics of recognition,” a term drawn from the work of the Canadian philosopher Charles Taylor. 

Taylor’s thesis is that in modern societies, political conflicts increasingly revolve around a discourse of recognition, which is the result of two developments: the collapse of social hierarchies, which held that honor ought to be unequally distributed, has led to a world in which we at least pay lip-service to the notion that all citizens, or all human beings, are entitled to dignity; and a “subjective turn,” in which we’ve gone from the notion that the objective nature of things compels us to behave in certain ways to one in which authenticity, or living in accordance with our own ideals of what it means to be a human being, is an end in itself. Our debate over the definition and the status of marriage is a clear example of the subjective turn at work: those who believe that marriage is in its very essence about gender complementarity and reproduction, and that to suggest otherwise is to do violence to its place in society, are pitted against those who see it as an essentially expressive act.

Fishkin maintains that the Hobby Lobby decision aims to recognize the validity of several claims made by religious conservatives, e.g.:

(a) that contraception is meaningfully different from other forms of health care (but immunizations, say, are not, or not necessarily) and should be treated as such;

(b) the right of conscience, particularly when grounded in religious belief, deserves great deference and priority in the public sphere, and “a higher symbolic priority than women’s health”;

(c) and religion is not merely something you do in the privacy of your own home or house of worship, but rather it is a way of life that can inform how a for-profit firm conducts its affairs, among other things. And for-profit firms informed by a religious worldview deserve to be accommodated.

According to Fishkin, these claims are not so much legal claims as political claims, and they have deep long-term implications.

Interestingly, Yuval Levin agrees with Fishkin that while the health policy implications of Hobby Lobby are limited, it has larger and broader implications for the role of civil society. He observes that “the suggestion that corporations could effectively be bearers of rights,” the source of most of the liberal opprobrium directed at the decision, was opposed outright by only two of the justices, Ginsburg and Sotomayor, who argued that corporations can’t be understood as legal persons under the RFRA. The deeper dispute is over whether the rights of conscience extend to communities of people working together towards a common purpose — that groups, as well as individuals, “should whenever possible be protected from forms of coercion or restraint that violate their religious beliefs.” For Levin, the extension of this liberty of groups to corporations makes perfect sense.

The Obama administration, in contrast, is motivated by the progressive conviction that we ought to “clear out the space between the individual and the state and to confer rights only on individuals, rather than encouraging people to form complex layers of interacting institutions with diverse views of the good that each pursues with vigor and conviction.” The RFRA holds that government can only impose a burden on the free exercise of religion if there is a compelling government interest at stake and if the burden in question is the least burdensome way to achieve the ultimate goal. The Court concluded that the mandate was in fact more burdensome than necessary to achieve the government’s purpose. As Levin goes on to explain, the decision does not offer much clarity on whether the particular accommodation the Obama administration has made for religious organizations is adequate. But it does reaffirm that groups and institutions are as entitled to religious liberty as individuals.

Perhaps the most interesting critique of Hobby Lobby is Jacob Levy’s. Levy, a political philosopher at McGill University, argues that the decision mangles the idea of corporate personhood: 

Corporate personhood is ultimately justified in terms of the interests of natural persons– their interest in being able to pursue joint enterprises, their interest in being able to reduce transaction costs, their interest in being able to interact with stable long-term entities, their interest in the economic benefits of a system in which capital can be pooled and put to long-term use, and so on. But a particular claim of corporate rights shouldn’t require immediate recourse to natural persons to describe it and make sense of it. It makes more sense to say “The New York Times has freedom of the press and the right not to have its offices searched without a warrant” than it does to try to redescribe it in terms of the moral interests of the Sulzburger family, the various employees, the various investors, and so on. The same is true for the corporate religious liberty of the Catholic Church or the Little Sisters of the Poor or the Salvation Army.

But the entity that is Hobby Lobby, a for-profit corporation like IBM, can’t be described as itself having a religious belief. Making sense of that idea requires making the corporate person disappear from the description and talking about the Green family, treating the “closely held” corporation as if it were a partnership or sole proprietorship that doesn’t have a corporate-style separateness from the natural persons. Try as I might, I can’t persuade myself that that’s right. Corporations are persons, or corporations are made out of people– the two thoughts lead to very different conclusions, and I think protecting the former requires rejecting this kind of easy recourse to the latter.

While Levin sees the extension of the religious liberty of groups to corporations as seamless and natural, Levy believes that it collapses the (important) distinction between corporations as persons or corporations as collections of people. And if we embrace the latter view over the former view, the unintended consequences for the rights of corporate persons could be quite serious. 

Tags: Hobby Lobby

MSNBC Guest to Host: Stop ‘Cardboard Cut-Out Caricatures’ of Conservatives


Trying to portray the Supreme Court as being in the pocket of corporations is an inaccurate and unproductive way of understanding how it operates, according to left-leaning Harvard constitutional-law professor Laurence Tribe. He encouraged MSNBC and its viewers to abandon that practice in the aftermath of recent rulings.

As host Joy Reid tried to characterize the John Roberts Court as ruling at the expense of people in favor of corporations, Tribe repeatedly urged her to distance herself from that “much too simplistic” approach.

For example, he found the Hobby Lobby ruling was “not as radical a decision as some people think” in protecting private entities from needlessly burdening their faith. Additionally, he reminded her that Citizens United not only protected corporations’ free speech, but that of unions as well.

“I’m a great watcher of MSNBC — I like preaching to the converted — but I think that when push comes to shove, we’ll do a lot better trying to understand what’s really going on inside the minds of all these people rather than just doing kind of cardboard cut-out caricatures,” he explained.

Via Newsbusters.

Tags: Hobby Lobby

Conestoga and Hobby Lobby—the Aftermath Begins


Lots of people have asked what happens next after yesterday’s Supreme Court decision in favor of religious freedom for Conestoga (my clients) and Hobby Lobby.

Already this morning we are getting some answers, and it is good news for those of us who will continue fighting Obamacare’s abortion-pill mandate.

Beyond Conestoga and Hobby Lobby, several other family-business cases against the mandate were sitting on the Court’s desk waiting to be resolved.

This morning the Supreme Court denied review in all the cases the family businesses had won outright: the Newland and Grote families, who I represent (Grote is consolidated with Korte in the Seventh Circuit). And it “GVR’d” the cases where the government had won all or part of the decision (Autocam — Sixth Circuit, and Gilardi — D.C. Circuit) (a GVR grants review, vacates the decision, and remands for further proceedings consistent with ConestogaHobby Lobby).

This is significant beyond a mere matter of housecleaning. Not only is it the first step towards making the other cases consistent with the Hobby Lobby–Conestoga decision, but it has ramifications beyond that decision.

Most important, it has on impact on the question of whether the mandate is supported by a “compelling interest.” Justice Alito’s majority opinion casts serious doubt on whether the government has such an interest, since Congress itself deemphasized the mandate and HHS applies it so haphazardly. But the Supreme Court ultimately decided not to decide that issue. Some commentators have interpreted that dodge to suggest maybe there is a compelling interest for the mandate.

That’s a less viable position today. In not only Hobby Lobby, but in Newland from the Tenth Circuit (the first injunction ever granted against the mandate), and Grote and Korte from the Seventh Circuit, the Courts of Appeals affirmatively concluded that the mandate is not supported by a compelling interest. This morning’s orders denying review in those cases leave in place this circuit precedent.

Moreover, the D.C. Circuit found the mandate lacks a compelling interest in the Gilardi case, but it also held that companies cannot exercise religion (while their owners can). The Supreme Court’s GVR in Gilardi will cause the D.C. Circuit to affirm a family business’s full ability to assert religious claims, but it should not disturb the D.C. Circuit’s ruling that the mandate lacks a compelling interest.

In contrast, in circuits where the government won the case below against a family business, those courts never reached the issue of whether the mandate has a compelling interest. Those decisions have been vacated and remanded, but those courts will not need to reach the compelling-interest issue in those cases either, because we now know the mandate violates religious freedom by failing the least-restrictive-means test.

Thus the Supreme Court’s decision not to rule on the mandate’s compelling interest is not a sign that it meets that test. It is a recognition that the Courts of Appeals have reached a consensus finding no compelling interest, and thus the Supreme Court has no need to decide that issue.

This consensus will, in turn, benefit the non-profit cases. Those cases will have a deferential substantial-burden standard from the Hobby Lobby–Conestoga decision. But they will not then move to the least-restrictive-means test; they can argue the mandate has no compelling interest. And in circuits that have already decided that issue, such as the Seventh, Tenth and D.C. Circuits, the mandate will fall automatically at that stage of the analysis. The issue of whether the so-called accommodation is a least restrictive means of furthering the government’s interest will never be broached.

This basic reasoning seems to be why, as Ed Whelan reported, both the Eleventh and Tenth Circuits ruled yesterday afternoon (after the Supreme Court ruling), for EWTN and for the Catholic Diocese of Cheyenne Wyoming and Wyoming Catholic College among others, that non-profit groups are entitled to injunctions pending appeal against the mandate’s so-called accommodation.

— Matt Bowman is senior legal counsel with Alliance Defending Freedom at its Center for Life in Washington, D.C.

Tags: Hobby Lobby

The Intolerance at the Heart of the Hobby Lobby Decision Fury


Quick observation on the Hobby Lobby case . . . 

How many of us who aren’t Orthodox Jews would like to tell an Orthodox Jew, “you have to work on the Sabbath”? How many of us would like to tell a Muslim, you absolutely have to handle pork products? How many would like to tell a Mormon that they have to drink alcohol, or a Christian Scientist that they have to smoke?

I hope you don’t have desire to tell other people to violate their religious beliefs and consciences. You may not share those beliefs, and you may think they’re weird, or strange, or silly, but respecting others’ religious beliefs has been a core component of the United States of America going back to Plymouth Rock. (Yes, there are times in U.S. history when the country hasn’t always lived up to this ideal. This doesn’t mean that there’s no longer any point to attempting to live up to that ideal.)

The folks who run Hobby Lobby believed that these four forms of birth control, out of 20, amount to abortifacients, and thus they are, from their perspective, killing innocent human life. You can disagree with them. But all Hobby Lobby wanted to do was not pay for them. They didn’t ban them (although they may prefer that option, someday down the road). They didn’t swear to fire or punish any employee who used them. All they sought was to follow their consciences and not pay for something they believed equaled murder. Considering how any employee had the option of A) paying for those methods themselves or B) finding another employer, that doesn’t seem like an outrageous expectation on the part of the company.

There is a big difference between disagreeing with Hobby Lobby’s assessment of these four forms of birth control — or even concluding this view is cuckoo for Cocoa Puffs — and saying, “I want to use the power of the state to compel you to violate your conscience and religious teachings.” You would think that using the government and the force of law — fines and imprisonment! — to compel people to violate their conscience is something we want to avoid as much as possible. The law permits conscientious objectors to war. Certain states permit the use of peyote during religious ceremonies. The Supreme Court upheld the right to sacrifice animals in Santeria. As long as your practice of religious isn’t directly infringing upon the rights of others, the law is going to let you worship your God as you see fit.

On Facebook yesterday, I saw someone respond to the news by muttering, “Stupid religious people!” Whether or not you think this belief is stupid, a core part of America is the right to hold and practice that belief!

What we’re seeing in the reaction to the Hobby Lobby decision is some liberals’ desire to not allow people to be “stupid religious people” anymore; we must all be reconditioned, to bow before the will and judgment of our betters, who control the levers of the government.

Tags: Supreme Court , Obamacare , Hobby Lobby

Hobby Lobby and SCOTUS’s Women Justices


Hobby Lobby, the arts-and-crafts giant who challenged Obamacare’s mandate to provide coverage for all forms of contraception, won at the Supreme Court yesterday in a 5-4 vote. No surprise: The five justices on the majority side were all male, and the Court’s three women justices (along with Justice Breyer) sided with the government.

Too many reports and comments today have included this fact as though it is only to be expected that women would favor the birth-control mandate, which has been portrayed as central for women’s health.  Any opposition to it, sadly, has been and will be demagouged as a “war on women.”

But the truth is that Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor are driven by a big-government ideology, not their sex. Women in the United States have diverse views on the size and role of government — including whether government should force religious employers to cover contraception for their employees. The media shouldn’t assume that this sample of three women represents us all.

Gallup polling from 2009 shows 37 percent of women identify as conservative, while 23 percent say they are liberal. This is a smaller margin than for men (44 percent vs. 20 percent), but still serves to show that not all women see the world like the female justices, who were all appointed by Democrats (two by President Obama).

Abortion is a divisive issue too: Although it is sometimes depicted as a women’s issue or even a women’s right, American women are divided on the issue. According to Gallup, 47 percent of women self-identify as pro-choice and 46 percent say they are pro-life.

Planned Parenthood and other pro-government organizations conducted polling specifically on the Hobby Lobby case and found that 68 percent of women disagreed with the arts-and-crafts retailer. This was no surprise given the degree to which the case has been misrepresented by left-leaning women’s organizations and abortion groups.

The National Organization for Women mischaracterized the intention of those challening the mandate as “bigotry toward women” and an attempt to “block women’s access to safe and effective contraception.”  If that were what the case was truly about, then naturally many women would be upset. A strong majority says birth control is morally acceptable.

Keep reading this post . . .

Tags: Hobby Lobby

Some Thoughts on Hobby Lobby


The general sense about the Hobby Lobby decision handed down yesterday, very much suggested by the majority opinion itself, is that the ruling is highly significant for the particular matter at hand (the fate of the HHS mandate) but of limited significance for larger and broader questions beyond. It seems to me, however, that roughly the opposite may be the case. 

In fact, the majority decision breaks some important ground on the general question of the corporate form in our civil society and its standing as a medium for the practice of our rights. But it leaves rather open the fate of the HHS mandate, by raising (without answering, as it was not at issue in this case) the question of whether the “accommodation” the administration has pursued regarding religious nonprofits may be adequate both in their case and in that of for-profit corporations. 

What follow are some reflections on the decision, and some guesses about what’s to come. 

Keep reading this post . . .

Tags: Hobby Lobby

Justice Ginsburg’s Eight Worst Lines on Hobby Lobby


Mother Jones’s list of the “eight best lines” from her dissent seems to be pretty popular on the Left, judging from social media. They may indeed be her best lines, but they’re not very good. Others (such as Jonathan Keim) have already tackled some of them, but here they are in the same order MJ presents them.

1) “Ginsburg wrote that her five male colleagues, ‘in a decision of startling breadth,’ would allow corporations to opt out of almost any law that they find ‘incompatible with their sincerely held religious beliefs.’” If the law serves a compelling interest and there is no less restrictive means of pursuing it, the corporation would not qualify for an exemption under the majority’s analysis.

2) “The exemption sought by Hobby Lobby and Conestoga would…deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage.” False, as Justice Alito explains, since there are means of providing coverage that do not burden employers’ beliefs: ”The effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero.”​

3) ”Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community.” This claim is obviously false. Many, many religious organizations do not understand their purpose as merely fostering the interests of coreligionists. And they may hire from outside the faith without ceasing to have religious missions.

4) ”Any decision to use contraceptives made by a woman covered under Hobby Lobby’s or Conestoga’s plan will not be propelled by the Government, it will be the woman’s autonomous choice, informed by the physician she consults.” Nobody has, of course, ever disputed this point. Her use of the contraceptives is not the substantial burden in the case. The employer’s facilitation of that use is, and it is indeed propelled by the government.

5) “It bears note in this regard that the cost of an IUD is nearly equivalent to a month’s full-time pay for workers earning the minimum wage.” Who truly believes that this cost plays any role at all in Ginsburg’s analysis? It’s expensive, so she cites it to show that employers have to pay for it; if it were cheap, she’d cite it to show that employers aren’t burdened by it. [Update that's apparently necessary for some readers: See also point 2.]

6) “Would the exemption…extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations[?]…Not much help there for the lower courts bound by today’s decision.” I dealt with this canard here. (Justice Alito dealt with it in the decision, too.)

7) “Approving some religious claims while deeming others unworthy of accommodation could be ‘perceived as favoring one religion over another,’ the very ‘risk the [Constitution's] Establishment Clause was designed to preclude.” If the compelling-interest and least-restrictive-means tests yield different outcomes in different cases, ignorant people might well look at the result and think that the government was favoring one religion over others. They might think, for example, that the government treats Quaker conscientious objectors better than practitioners of human sacrifice because of theological commitments. The alternative to living with ignorance is catering to it by refusing to apply the terms of the Religious Freedom Restoration Act.

8) ”The court, I fear, has ventured into a minefield.” This comment comes directly after the bits about blood transfusions and religious favoritism. Note that the concern Ginsburg expresses swings free of her concern about applying RFRA to for-profit corporations. It’s an objection to applying RFRA at all. Whether or not she thinks the law wise, that’s her job.

Tags: Hobby Lobby

The Left’s Delusional Freakout over RFRA


Rather unsurprisingly, the professional Left’s reaction to yesterday’s decision in Hobby Lobby has been almost all hype, over-reaction, and fear-mongering.

To hear some portray the ruling, the Supreme Court just empowered corporations to pave over anyone or anything if done under the penumbra of “religious liberty.”

Justice Ginsburg’s erratic tirade of an opinion went this route, going so far as to say that corporations could object to “health coverage of vaccines, or paying the minimum wage, or according women equal pay for substantially similar work.”

Malarkey, pure and simple. Ginsburg’s dissent sounds like an advert from the National Organization from Women.

It is downright foolish, and rather confounding for it to come from a Supreme Court justice — especially since the majority opinion by Alito expressly forbids the ruling to be applied to ham-fisted outcomes that are being proposed. The majority opinion expressly limits itself to the question at hand involving Hobby Lobby and Conestoga Wood.

Keep reading this post . . .

Tags: Hobby Lobby

Hobby Lobby Actually Lavishes Contraception Coverage on Its Employees


The Left is foaming at the mouth over the Supreme Court’s Hobby Lobby decision this morning.

“This is going to turn the dial back,” Representative Debbie Wasserman Schultz warned on MSNBC. The Democratic party’s national chairwoman added: “Republicans want to do everything they can to have the long hand of government, and now the long hand of business, reach into a woman’s body and make health care decisions for her.”

“Today’s Supreme Court decision unfortunately jeopardizes basic healthcare coverage and access to contraception for a countless number of women,” said Democratic senator Jeanne Shaheen of New Hampshire.

Consequently, Senate Democratic leader Harry Reid said that his party now must “fight to preserve women’s access to contraceptive coverage.”

This is not just garbage. It’s an entire landfill on stilts.

Imagine that a woman starts work at Hobby Lobby tomorrow morning — July 1. She joins Hobby Lobby’s health care plan. It includes access, copay-free, to the following categories of FDA-approved birth-control:

  1. Male condoms
  2. Female condoms
  3. Diaphragms with spermicide
  4. Sponges with spermicide
  5. Cervical caps with spermicide
  6. Spermicide alone
  7. Birth-control pills with estrogen and progestin (“Combined Pill)
  8. Birth-control pills with progestin alone (“The Mini Pill)
  9. Birth control pills (extended/continuous use)
  10. Contraceptive patches
  11. Contraceptive rings
  12. Progestin injections
  13. Implantable rods
  14. Vasectomies
  15. Female sterilization surgeries
  16. Female sterilization implants

(This new woman at Hobby Lobby cannot use male condoms or a vasectomy, at least not directly. However, if she chose either contraceptive method, in conjunction with her husband, she would have access to it.)

Further, not only would she have access to these medicines and devices, but Hobby Lobby would fund them. That’s right: while White House press secretary Josh Earnest claims that it “jeopardizes the health of women,” Hobby Lobby’s health plan pays for 16 different kinds of contraceptives for its female employees!

Keep reading this post . . .

Tags: Hobby Lobby

Krauthammer’s Take: The Case Against Hobby Lobby Is What You Get with Big Government


The case in which the Supreme Court voted 5–4 in favor of Hobby Lobby arose partly because of the expansion of the modern welfare state, Charles Krauthammer observed Monday on Fox.

The entitlement state depends upon the government to determine who gets health care and what sort of health care they receive, he explained. The government “defined [preventative care provided by Obamacare] arbitrarily as being contraception, as if a pregnancy is a disease to be prevented,” he said.

His main takeaway from the Hobby Lobby case was the expansion of the state, regardless of intentions,  will “inevitably” impinge on religious practice.

Tags: Hobby Lobby

RFRA Worked the Way It Was Supposed To in Hobby Lobby


Today an important religious- liberty law did what it was supposed to do. In Burwell v. Hobby Lobby, the Religious Freedom Restoration Act (RFRA) provided the Supreme Court with a mechanism for weighing competing claims in our pluralistic society. The Court determined that we can, in fact, balance seemingly conflicting interests without throwing out religious liberty.

Under Obamacare, the Department of Health and Human Services deemed it a critical public-policy goal to ensure all women have access to contraception at no cost to them. It pursued that objective by mandating that many employers provide employee heath insurance covering all 20 FDA-approved contraceptive drugs and devices, including four that have the potential to end unborn human life.

The Evangelical Green family of Hobby Lobby and the Mennonite Hahn family of Conestoga Wood Specialties could not provide coverage of these latter four without violating their religious beliefs concerning the sanctity of human life.

In today’s 5–4 decision, the Supreme Court rejected the Obama administration’s argument that forcing these family-owned businesses to provide coverage for potentially life-ending drugs and devices was the least restrictive means to achieve its policy goal.

Women’s access to affordable birth control was not in question in this case. Hyperbolic claims to the contrary notwithstanding, women still have access to the whole range of contraception. What was at stake was the right of Americans to run a family business consistent with their faith. The Court made clear that the administration’s policy goal could be pursued without burdening religious freedom.

Today’s ruling is certainly a victory for religious freedom. In other conflicts, the government may sometimes be able to show it has a compelling reason for burdening religious freedom (to protect public safety, for instance). But RFRA sets a very high bar for the government to meet to do so. This careful balancing test has served us well for more than 20 years since RFRA’s enactment. And it will continue to provide us a commonsense way of weighing compelling state interests with the fundamental right to religious freedom.

One of the many problems with Obamacare is its increased centralization of decision-making about what insurance plans must include, what employers must provide, and what individuals must purchase. Policy should not coerce family business owners and or individuals to violate their religious beliefs. Health-care policy should allow individuals and families to make different decisions about the coverage of controversial drugs, devices, and procedures.

The Constitution and RFRA supply effective tools for protecting religious liberty, even in a culture with deep disagreements on issues such as abortion. You don’t have to agree with the Hahn and Green families’ decision to support their freedom to make that decision. Today the Court affirmed that perspective, leading Alliance Defending Freedom attorney Matt Bowman to call Hobby Lobby an “inclusive decision” that advances everyone’s freedom. 

Tags: Hobby Lobby


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