This is a guest post written by Andrew Seidel. He is a staff attorney at the Freedom From Religion Foundation.
The Supreme Court’s era-defining decision in Burwell v. Hobby Lobby has alarmed many of us, but not enough. Some think this decision won’t affect them or that the reaction is overblown.
There are many, many problems with the majority opinion in Hobby Lobby. Other than the most obvious problem, that corporations are not people capable of forming religious beliefs, five jump out. These problems concern every American — not just atheists, not just non-Christians, and not just women.
The majority opinion’s terrifying legal rewrite offers one glimmer of hope: The problems are solvable. Congress need only repeal the Religious Freedom Restoration Act (RFRA).
As an initial matter, we can ignore the Court’s claim that the Hobby Lobby decision is limited. The five-member all-Catholic majority stated — without reason — that the decision only applied to the birth control mandate and only to closely held corporations. Simply stating that the decision is limited, without providing any logical rationale for doing so, is legally meaningless. Any lower court that looks at the opinion must look for logical reasoning — which does not exist. There are at least 100 cases in the federal courts regarding the birth control mandate, many not involving closely held corporations. Some of those cases challenge all birth control, not just four specific methods — and they’re probably going to win (see Problem #2). Other cases argue that religion can justify discrimination. And since the decision came down, new cases have been filed.
The Supreme Court left the door slightly ajar. But the evangelicals are already kicking the door wide open. If you think this is hyperbole, you’re not paying attention to what has happened since the June 30 decision. This opinion will effect you. Maybe not today, maybe not tomorrow, but soon.
Unless Congress repeals RFRA.
Nearly 150 years ago, the Supreme Court asked if a citizen could avoid complying with laws “because of his religious belief?” The resounding answer was No. This would make “religious belief superior to the law of the land, and in effect… permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.” In short, to allow religion to trump the civil law was to invite anarchy.
In a country where freedom of religion has let every citizen define religion as he or she sees fit, the consequences of elevating personal beliefs above the law are staggering. 150 years ago this was unthinkable: “Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice?” Now, the law bows to sincerely held religious beliefs.
What constitutes your “sincerely held religious belief?” Pretty much anything. Justice Alito pointed out that “no one has disputed the sincerity of [the company owners’] religious beliefs.” A belief’s sincerity or religiosity can be challenged, but seldom is (except in the case of prisoners) and rarely is that challenge sustained. This is why Hobby Lobby’s transparent hypocrisy — providing the same contraception coverage at issue in the lawsuit but dropping the coverage to file the suit — while interesting to those of us with a conscience, was legally irrelevant.
Technically, RFRA requires any burden on a sincerely held religious belief be “substantial.” How substantial? Not very, it turns out. Justice Alito claimed that Hobby Lobby would have to pay millions, but one week later his brethren provisionally ruled that Wheaton College’s religious objection to filling out a two-page form was worthy of an emergency injunction. Even if this rapid expansion of “substantial” as a limiting term had not happened on the heels of Hobby Lobby, the decision itself is expansive. Here’s the causal chain that the Court accepted as a substantial burden on Hobby Lobby’s religion:
- A believes that Drug X violates A’s religion
- A owns a distinct legal entity, Company H
- Company H buys a health insurance plan for its employees, as required
- H employs Person B
- Dr. C, B’s doctor, recommends and prescribes X for B
- B personally chooses to take X
- The insurance plan pays for X
- Therefore, A’s religion is violated
One would think an employee exercising private choice in consultation with her doctor would sever the chain. After all, even though nearly all voucher funding goes to religious schools, the Supreme Court has upheld school vouchers because they permit “individuals to exercise genuine choice among options public and private, secular and religious. The program is therefore a program of true private choice.” How duplicitous. For this court, the private choice of parents to send their children to parochial schools with public money cuts off any constitutional problems with public money going to a church. But the private choice of a woman in consultation with her doctor and funded by insurance is insufficient to block Hobby Lobby’s pious displeasure.
The Court’s hypocrisy here is on par with Hobby Lobby’s. For if the Greens (who own the company) sincerely cared about their Christian duty, they would not be operating a for-profit enterprise. (Matthew 19:21)
This may be the most frightening aspect of the Court’s decision:
The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients. If the owners comply with the HHS mandate, they believe they will be facilitating abortions…
Did you catch it? “[A]ccording to their religious beliefs the four contraceptive methods at issue are abortifacients…”
This should terrify you.
The Supreme Court elevated an unsupported, unscientific religious belief to an unassailable perch, while totally ignoring the evidence-based, scientific, medical fact that the drugs at issue were not abortifacients. This is actually the culmination of religious cases. Courts have always held that they cannot question the “truth of a [religious] belief” only that it is “truly held.” But now, RFRA, as interpreted in Hobby Lobby, elevates fundamentally wrong beliefs over the rights of other citizens. Ignorance can now be imposed on others.
An abortifacient is a drug that will essentially cause a miscarriage. Physicians for Reproductive Health, the American College of Obstetricians and Gynecologists, the Association of Reproductive Health Professionals, the American Society for Reproductive Medicine, the Society for Adolescent Health and Medicine, the American Medical Women’s Association, the National Association of Nurse Practitioners in Women’s Health, the Association of Forensic Nurses and other groups all signed on to a brief addressing one question: Are the drugs Hobby Lobby objects to, in fact, abortifacients?
The resounding answer was no: “The scientific evidence confirms that the FDA-approved forms of emergency contraception are not abortifacients.”
The doctors and scientists spoke… and the Catholic men on the High Court ignored them. Reality is irrelevant. The central “question that RFRA presents,” according to Justice Alito, is “whether the mandate imposes a substantial burden on the objecting parties’ ability to conduct business in accordance with their religious beliefs.” (Emphasis in original opinion.)
Some companies are challenging all contraceptives covered. The pill, condoms, IUDs — all of these in some way prevent pregnancy. And if, as Catholics do, you believe as the gents of Monty Python so memorably phrased it, that “every sperm is sacred, every sperm is great” and that “if a sperm is wasted, God gets quite irate,” that belief now trumps scientific fact.
There is no end to this shocking disregard for reality. If Ford sincerely believes, for instance, that combustion engines do not pollute or produce carbon dioxide, despite the overwhelming scientific evidence to the contrary, will the court accept their objection to obeying the Clean Air Act?
But it turns out there’s an even bigger problem for environmentalists.
If you’re on the board of the Sierra Club, Natural Resources Defense Council, World Wildlife Fund, Earthjustice, or any other excellent environmental non-profits, Hobby Lobby should terrify you.
Hobby Lobby allows companies to claim a religious belief and thereby exempt themselves from regulation. How long will it take oil companies to realize that, simply by claiming to adhere to this or that myth with a modicum of sincerity, they will no longer have to comply with environmental regulation? The EPA’s regulation of greenhouse gases has been the subject of costly litigation for more than a decade. Now, these companies need only convert to a religious belief that undercuts the regulation. (Even if you think this decision will stay limited to closely held corporations, realize that’s nearly 90% of American businesses.)
Think this is unlikely? Evangelical Christians are notoriously immune to science, reason, facts, and data relating to global climate change. Rep. John Shimkus (R-IL) infamously said that global climate change might be happening, but we don’t need to worry about it because God promised Noah he wouldn’t flood the earth again.
Still think this scenario is farfetched? You might want to read the “Evangelical Declaration on Global Warming.” It states four beliefs and four denials of belief, including “We deny that carbon dioxide… is a pollutant.” How hard would it be for a company to adopt this religious declaration as a sincere religious belief? They’ve been making that argument for years.
Think of the newly-created incentive. Now, companies can avoid regulation simply by converting to or adopting — sincerely, of course — a new religion. This lowers the company’s bottom line and allows them to charge a lower price — they can out-compete their competitors. To stay competitive, every company must exempt themselves from the regulation.
Shimkus’ comments seem to provide fodder for undermining all environmental regulation in the name of God: “The earth will end only when God declares it’s time to be over. Man will not destroy this earth.” But this should not be considered as only affecting environmentalists. This decision allows any company to avoid any law on the basis of religion.
Want to test your drugs on animals? Convert to Christianity, for God gave man “dominion over the fish of the sea, and over the fowl of the air, and over the cattle, and over all the earth, and over every creeping thing that creepeth upon the earth” (Genesis 1:26).
Want to keep women out of management positions? Convert to Christianity, for God permits no woman to “teach or… assume authority over a man; she must be quiet” (1 Timothy 2:12).
Want to avoid FDA food regulations? Convert to Christianity or Judaism, which are full of absurd dietary restrictions and which worship a God who forces the disobedient to “eat the flesh of your sons and the flesh of your daughters” (Leviticus 26:29).
Racism, sexism, and homophobia all have biblical and religious support for any company to avoid complying with all that burdensome equality legislation.
Hobby Lobby fired the starting pistol. The race to the bottom has begun.
Much like the metaphorical wall that separates government and religion, there is a wall that separates corporations from their owners. And much like Thomas Jefferson‘s wall of separation, the corporate veil, as it is known, has suffered under the Supreme Court. These barriers are not being dismantled or torn as some commentators believe. The reality is more sinister; they are being turned into one-way streets, into valves that let religion radiate out, but exclude the government and law.
Jefferson’s wall has been perverted to allow religion in our government — “In God We Trust,” government prayer, faith based initiatives, the National Day of Prayer, etc. — under the guise of “ceremonial deism” or craven doctrine of legal standing. But the wall still keeps government out of religion, an imbalance that RFRA will only exacerbate.
Hobby Lobby has similarly perverted the corporate veil, which legally separates the corporation (a legal construct) from the individuals (flesh and blood people) who own it. If you sell widgets that poison children, you are personally liable for their deaths. If, on the other hand, you incorporate and your company sells widgets that poison children, the company is liable. If the company goes into debt, you are not personally liable for it.
Enter Hobby Lobby. Now, the veil keeps legal liability, debts, lawsuits, and the like away from the owners, but the owners’ religion flows through the shroud. Thus, the Greens and other owners sit within a fort that protects them from legal liability, but from which they can barrage their hapless employees with religious dogma.
Why didn’t the Supreme Court know about the corporate veil, you might wonder. They did. As FFRF argued in its Hobby Lobby amicus brief for the repeal of RFRA, another amicus brief from dozens of corporate and criminal law professors argued that Hobby Lobby’s argument would eviscerate the corporate veil:
Hobby Lobby and Conestoga each asserts that the religious values of its present controlling shareholders should pass through to the corporation itself. This Court should reject any such “values pass-through” concept. To do otherwise would run contrary to established principles of corporate law.
… 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.
Plain, simple, well written, and delivered with the gravitas of the nation’s top corporate law experts. But, like the facts presented by medical scientists, it was ignored by the Supreme Court. The majority never even mentions the corporate veil or attempts to refute this cold logic.
This was a victory for religious freedom! A win for religious liberty! the Religious Right crowed. Nothing could be further from the truth.
The Hobby Lobby decision is not about religious liberty, it is about redefining liberty. The Religious Right has sought this redefinition for some time. In the 1980s Bob Jones University lost its tax-exempt status due to racial discrimination. It sued the IRS and, as prominent legal scholar Paul Finkelman has written, “at the time, [the case] was perceived as a religious liberty lawsuit.” Its bigotry was religiously-motivated, so many Christians thought it an issue of religious liberty.
Former Mississippi senator, governor, and Klan member Theodore Bilbo thought that interracial marriage, “miscengenation and amalgamation are sins of man in direct defiance to the will of God.” His book, gruesomely subtitled “Separation or Mongrelization,” was published back in 1946. For Bilbo, the right to use his religion to discriminate was “a battle for constitutional liberty.”
My friend and colleague at Americans United for Separation of Church and State, Rob Boston, has written an excellent book on this very topic, with the much better subtitle “Why Religious Freedom Doesn’t Give You the Right to Tell Other People What to Do.” Boston puts this attempt to destroy the meaning of words to rest and I highly recommend his book:
Religious Right leaders and their followers often claim that they are being persecuted in the United States. They should watch their words carefully. Their claims are offensive; they don’t know the first thing about persecution.
… In some countries, people can be imprisoned, beaten, or even killed because of what they believe. Certain religious groups are illegal and denied the right to meet. This is real persecution. By contrast, being offended because a clerk in a discount store said “Happy Holidays” instead of “Merry Christmas” pales…
Far from being persecuted, houses of worship and the religious denominations that sponsor them enjoy great liberty in America. Their activities are subjected to very little government regulation. They are often exempt from laws that other groups must follow.
The religious attempt to redefine words is reminiscent of totalitarianism’s devastating effect on language. George Orwell recognized this in his masterpiece 1984: “[I]f thought corrupts language, language can also corrupt thought.” Syme, the character that edits the Newspeak Dictionary, dreamily opines, “It’s a beautiful thing, the destruction of words.”
When James Madison wrote in Federalist, no. 63 that “liberty may be endangered by the abuses of liberty, as well as by the abuses of power…” he was discussing the Senate. But the striking phrase is apt here. The redefinition of “religious liberty” from a protection of one’s cherished belief, into a weapon for imposing that belief on others is both an “abuse of liberty” and an abuse of the English language.
There is one slender positive in all this — the Hobby Lobby decision did not interpret the Constitution. The decision is based on RFRA, a statute. Repeal RFRA and the decision vanishes. Repeal RFRA and we get another chance to argue this on constitutional grounds. Even this Supreme Court might be convinced to decide a Hobby Lobby-like case brought under the Constitution differently. Both Justices Scalia and Kennedy, who were in the uniformly male, Catholic majority in Hobby Lobby, decided in a 1990 case, Employment Division v. Smith, against elevating religious beliefs over the Constitution. Scalia wrote the opinion. If we repeal RFRA — and there are many good reasons for doing so beyond this recent debacle — our Constitution ought to correct these problems.