Hobby Lobby and religious oppression in the workplace

     (Andre’ P. Kissel/AP Photo)

    (Andre’ P. Kissel/AP Photo)

    Since when do corporations have religious beliefs, dictated from the top down? Since never.

    Corporate law, as long interpreted by the courts, has always been very clear: Incorporated businesses are not theocracies. The major shareholders can’t religiously oppress their workers. They can’t cherry-pick the secular workplace requirements they wish to obey, and thumb their noses at the requirements they deem to be morally unacceptable.

    But, as evidenced in oral arguments yesterday, the five Republican appointees on the U.S. Supreme Court seem poised to carve out a huge God exemption for corporations led by religion devotees. Such a ruling, probably in June, would be an historic break with tradition, law, and judicial precedent – wait, aren’t those justices supposed to be conservative? – but so it goes. And conservatives who hate Obamacare surely won’t complain about the tyranny of “activist judges.” Not this time.

    We’re talking here about the Hobby Lobby case – Hobby Lobby is the Oklahoma-based arts and crafts corporation; its co-plaintiff, Conestoga Wood Specialities, is a Pennsylvania-based cabinet-making corporation – and they’re upset about one particular Obamacare requirement. Under the law, moneymaking (for-profit) corporations have to provide employe health care that covers all forms of contraception. However, Hobby Lobby and Conestoga don’t want to obey. The folks at the top of their corporate pyramids are conservative Christians who say that full compliance violates their religious freedom. Hence, their court challenge.

    But, by legal definition and tradition, corporations are secular beasts governed by secular law. No precedent allows owners and major shareholders to impose their religious views on the workers. Indeed, if Hobby Lobby and Conestoga are permitted to do so in this case, it would be tantamount to religious oppression. Hobby Lobby has 13,000 full-time employes; many are secular women who have every right to receive the same contraceptive health care options as other secular women in the workplace.

    The problem is, Hobby Lobby wants it both ways. It wants to enjoy all the traditional secular perks of incorporation (tax breaks, shareholder protection from tort and contract liability), while reserving the right to defy the secular requirements it doesn’t like. As 44 corporate and criminal law professors pointed out in an amicus brief to the high court, Hobby Lobby’s stance “is contrary to corporate law.” Under longstanding American rules, the professors wrote, “the corporate entity is distinct in its legal interests and existence from those who contribute capital to it.”

    And as the Supreme Court itself ruled 108 years ago, in Hale v. Henkel, “The corporation is a creature of the state. It is presumed to be incorporated for the benefit of the public.” Not a single word about it being a theocratic entity for the religious benefit of its top officers.

    Granted, a federal religious freedom law, enacted in 1993, is designed to shield devout individuals from government overreach. But that law has never applied to corporations. Put simply: Once you’re in the commercial sector, with a secular workforce, you can’t discriminate against your secular workers in the name of “religious freedom.”

    If the five current Republican appointees were really strict constructionists who respected precedent – the kind of judges that conservatives say they want – then this case would be a slam dunk. Hobby Lobby would be told to obey the law, like any other corporation, and offer the full range of contraceptive options to its workers. But the vibes yesterday seemed to tilt toward Hobby Lobby (big surprise).

    For a brief moment there, the most powerful person in America, swing-voter Anthony Kennedy, seemed to side with tradition and precedent. He did suggest that a ruling in favor of Hobby Lobby would be tatamount to “allowing the employer to put the employee in a disadvantageous position. The employee may not agree with these religious beliefs of the employer. (Do) the religious beliefs just trump?” But Kennedy ultimately seemed swayed by Hobby Lobby’s grievance. He’s a longtime abortion foe, and Hobby Lobby doesn’t want to cover the contraceptive options that it equates with abortion (IUDs, for example).

    So, naturally, the court’s three women justices had to point out the obvious: If Hobby Lobby is allowed to breach corporate law and pick and choose its terms of compliance in accordance with the religious views of its leaders, where does it all end? Wouldn’t such a ruling grease the slippery slope? For instance, what’s to prevent the homophobic major shareholder of a corporation from decreeing, in the name of “religious freedom,” that there shalt not be coverage for AIDS treatment?

    As Justice Sonia Sotomayor asked Hobby Lobby’s lawyer, “Is your claim limited to sensitive materials like contraceptives, or does it include items like blood transfusions, vaccines? For some religions, products made of pork? Is any claim under your theory that has a religious basis, could an employer preclude those items as well?” Justice Elena Kagan chimed in, “There are many people who have religious objections to vaccinations. So suppose an employer refuses to fund or wants not to fund vaccinations for her employes – what happens then?…One religious group (atop a corporate pyramid) could opt out of this, and another religious group could opt out of that.”

    Exactly.

    At one point Sotomayor mused, “How does a corporation excercise religion?” The answer is, it doesn’t – at least until June, when the five Republican appointees will likely breach precedent and create a whole new entity, the theocratic corporation. Pray they don’t open the floodgates.

    Follow me on Twitter, @dickpolman1

     

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