The Agenda

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. 

Reihan Salam is executive editor of National Review and a National Review Institute policy fellow.

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