The United States Supreme Court on Tuesday will hear oral arguments in Sebelius v. Hobby Lobby Inc., and what's at stake should probably scare you -- whether or not you use birth control.
Hobby Lobby, a for-profit corporation owned by a family of devout Christians, sued the Department of Health and Human Services in September 2012 contending that the contraception mandate of the Affordable Care Act was an unconstitutional violation of its sincerely held religious beliefs. Notice here my use of "its." No one is contesting that Hobby Lobby founder and CEO David Green and his family are sincere in their religious beliefs (much as many people may disagree with them); the family has demonstrated its faith by closing stores on Sundays, piping in religious music for shoppers to listen to while purchasing macramé supplies and working to build a "Museum of the Bible" in the nation's capital.
But the Greens are not on the hook to provide their 13,000 full-time employees with contraceptive coverage -- their privately held corporation is. Because that's what it means to be incorporated. So the question here is whether the company itself can have sincerely held religious beliefs, and -- if the court is willing to recognize corporate religion -- whether the contraception mandate places an "undue burden" on those beliefs.
While there are outcomes in which the justices may be able to avoid the question of corporate religion (possible punts here and here), that doesn't change the core argument the plaintiffs (and co-plaintiff Conestoga Wood Specialties Corp.) are advancing in the case: that corporations are people of faith and effectively indistinct from corporate owners and executives. In 2010, the justices granted corporations the same free speech rights as individuals; Hobby Lobby is hoping they will do the same with the free exercise of religion. The case is basically Citizens United -- under God.
Four things to know as the case heads to the high court:
1. Hobby Lobby built its case on an extreme interpretation of medically refuted pseudo-science.
Here's the thing about the Hobby Lobby challenge to the contraception mandate: The company was already doing 80 percent of what's legally required before it sued the government in 2012.
Hobby Lobby already covered 16 of the 20 methods of contraception mandated under the Affordable Care Act, but it didn't cover Plan B One-Step, Ella (another brand of emergency contraception) and two forms of intrauterine devices. This is because the owners of Hobby Lobby have incorrectly labeled these methods of birth control and emergency contraception as "abortifacients," a claim popular among anti-choice ideologues but refuted by scientific evidence and major reproductive health associations.
“These medications are there to prevent or delay ovulation,” Dr. Petra Casey, an obstetrician-gynecologist at the Mayo Clinic, told the New York Times in a piece on the science behind emergency contraception. “They don’t act after fertilization.” As the Times noted, there is no credible evidence to support the claim that emergency contraception like Plan B and ella prevent fertilized eggs from implanting in the womb. Instead, the pills delay ovulation and hormonal IUDs thicken cervical mucus to prevent sperm from reaching the egg, meaning that fertilization never even occurs. When used as a form of emergency contraception, the copper IUD can interrupt implantation, but this still does not mean a pregnancy has occurred.
There are actual abortion-inducing pills on the market (they are incredibly safe and widely used) -- emergency contraception is not one of them.
Hobby Lobby is hoping the Supreme Court will swallow pseudo-science as medical fact, which, put politely, requires some serious chutzpah.
2. The Religious Freedom Restoration Act was created to protect the little guy -- not corporations.
Hobby Lobby has grounded its claim in protections it believes it's entitled to under the Religious Freedom Restoration Act (RFRA), a law passed in 1993 to protect individuals from having their private rights trampled by the government.
A court decision in support of this claim -- holding that corporations can have sincerely held religious beliefs -- would be a major break with centuries of legal history, and a particularly egregious distortion of RFRA.
Congress passed RFRA in response to a 1990 Supreme Court decision that allowed the state of Oregon to deny unemployment benefits to two Native American men who were fired for using peyote -- which was illegal in the state at that time -- as part of a religious ceremony. The majority opinion in that case was written by Antonin Scalia, who argued that, "To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself."
The decision held that a person’s religious beliefs are not sufficient grounds to break laws that are considered "neutral" or generally applicable, but Congress passed RFRA after many religious groups raised concerns that the ruling would infringe on the rights of individuals who belong to minority religion groups. It was supposed to be a safeguard against big entities (the government, for example) stomping all over the rights of individuals. Hobby Lobby is invoking it to do quite the opposite.
Seeing the law invoked as a blunt instrument against employees' rights is a shocking development to many in Congress who backed the bill. "It was never intended as a sword as opposed to a shield,” Democratic Rep. Jerry Nadler, D-N.Y., one of the House architects of RFRA, told Irin Carmon and Adam Serwer at MSNBC. “Once you went into the commercial sector, you couldn’t claim a religious liberty to discriminate against somebody. That never came up. It was completely obvious we weren’t talking about that.”
3. The business community isn't rooting for Hobby Lobby to win this one.
If the Supreme Court sides with Hobby Lobby and agrees that corporations are people with religious convictions, the ruling would basically destroy what's known as the corporate veil (which means to treat a corporation as a distinct entity from its owners or shareholders) -- a precedent that would have far-ranging consequences.
Which may explain why corporate America has been unusually quiet about the case. As David H. Gans recently noted at Slate, "Not one Fortune 500 company filed a brief in the case. Apart from a few isolated briefs from companies just like Hobby Lobby and Conestoga Wood, the U.S. business community offered no support for the claim that secular, for-profit corporations are persons that can exercise religion."
The Chamber of Commerce and other groups -- which were falling over themselves to file amicus briefs in support of Citizens United -- likely recognize that a ruling for the corporate right to the free exercise of religion would cause complete chaos, both in terms of corporate governance and market stability. By treating corporations as the same thing as their owners, a ruling in support of Hobby Lobby wouldn't just pierce the corporate veil, it would effectively shred it and light it on fire.
Which is basically what a group of corporate and criminal law scholars had to say about the issue in a brief filed in opposition to Hobby Lobby:
The essence of a corporation is its “separateness” from its shareholders. It is a distinct legal entity, with its own rights and obligations, different from the rights and obligations of its shareholders. This Court has repeatedly recognized this separateness.
Shareholders rely on the corporation’s separate existence to shield them from personal liability. When they voluntarily choose to incorporate a business, shareholders cannot then decide to ignore, either directly or indirectly, the distinct legal existence of the corporation when it serves their personal interests.
The separateness between shareholders and the corporation that they own (or, in this case, own and control) is essential to promote investment, innovation, job generation, and the orderly conduct of business. This Court should not adopt a standard that chips away at, creates idiosyncratic exceptions to, or calls into question this legal separateness.
In the same brief, these experts note how Hobby Lobby is effectively asking to have it both ways -- protection from liability and an à la carte menu of individual rights:
Hobby Lobby and Conestoga argue that they should be exempt from federal law because of the religious values of their controlling shareholders, while seeking to maintain the benefits of corporate separateness for all other purposes. These corporations have benefited from their separateness in countless ways and their shareholders have been insulated from actual and potential corporate liabilities since inception. Yet now they ask this Court to disregard that separateness in connection with a government regulation applicable solely to the corporate entity. Hobby Lobby and Conestoga want to argue, in effect, that the corporate veil is only a one-way street: its shareholders can get protection from tort or contract liability by standing behind the veil, but the corporation can ask a court to disregard the corporate veil on this occasion. Hobby Lobby and Conestoga cannot have it both ways.
4. Corporate religion will be really bad news for basically everyone who isn't a business owner with a self-interested ax to grind.
Sincere as the Greens may be in their Christian faith, the case they've built reeks of political opportunism and the troubling trend of claiming "religious liberty" as a justification to make plain old discrimination the law of the land.
As noted above, the company was already complying with most of what's required by the mandate, and the parts of the law that the Green family doesn't like are based on total pseudo-science (which has even been rejected by other anti-choice Christians). And Hobby Lobby doesn't even have the support of the business community -- which is usually pretty reliable about coming out on the wrong side of things -- on this one. So what gives?
As Ian Millhiser at ThinkProgress recently wrote, the Hobby Lobby case -- if successfully argued -- would effectively make the kind of discrimination conservative lawmakers in Arizona tried to pass with SB 1062 the law. Only a much harder to undo law imposed by justices without term limits and who no one elected.
"Denying birth control to your workers because of your own religious objections to it superimposes your own personal beliefs about conscience and faith onto your employees. So does refusing to serve a gay person due to a religious objection to their sexual orientation," noted Millhiser. "If the Supreme Court winds up holding that one person’s faith can impose itself on another, which is exactly what the plaintiffs in Hobby Lobby and Conestoga Wood want them to do, then all the nightmare scenarios" -- rampant anti-LGBTQ discrimination among them -- "imagined in the debate over the Arizona bill could become very real."
In fact, such a ruling could provide cover for almost any kind of law corporations don't want to comply with -- as long as it's cloaked in the language of sincerely held beliefs.