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Hobby Lobby case could cause huge legal, social disruption: Tim Rutten

Sebelius v. Hobby Lobby, which was argued before the U.S. Supreme Court this week, is the year’s most closely watched legal case for good reason. If, as now seems likely, the justices hold that the for-profit company enjoys the same rights to religious freedom as an individual American, it’s hard to foresee just how widely the legal and social disruption may extend.

Essentially, the facts of the case are these: Hobby Lobby, an extremely lucrative chain of arts and crafts supply stores, is privately held by the Green family, whose devout Christianity obviously informs their business practices. By all accounts, the stores are good places to work — all 13,000 employees receive more than the legal minimum wage and enjoy full benefits, including generous health insurance. All the branches close on Sunday and begin staff meetings with Bible readings.

According to Hobby Lobby’s billionaire founder, David Green, these same beliefs make it objectionable to comply with the Affordable Care Act’s requirement that employee health insurance plans cover contraception. Hobby Lobby doesn’t object to all contraception, just to Plan B, Ella and IUDs, which it claims are abortifacients, a belief that is not shared by most medical professionals or even many religiously conservative bioethicists. Moreover, employers can opt out of the Affordable Care Act, but those who do must pay additional taxes to cover their employees’ purchase of coverage through one of the insurance exchanges.

“By being required to make a choice between sacrificing our faith or paying millions of dollars in fines, we essentially must choose which poison pill to swallow,” David Green said when his company filed suit. “We simply cannot abandon our religious beliefs to comply with this mandate.” Though the sincerity of the Greens’ religious convictions seems clear, it is curious that the health plan they’ve offered their workers up until now covers both Plan B and Ella. Maybe they never noticed — or, perhaps, like the legal organizations pressing their claim, what they’re really interested in is gutting the Affordable Care Act, a goal that has become the dark grail of right-wing politics.

If the company prevails, hollowing out health care reform will be just the beginning of the unpredictable disruption in a wide swath of American life: More than a century of settled corporate case law will be up for reconsideration, including those that now protect CEOs and directors from most lawsuits, and hundreds of federal laws and regulations suddenly will be open to religious challenge. During the unusually vigorous 90-minute oral argument before the court this week, it appeared that none of this daunts the conservative bloc, which appears ready to find for Hobby Lobby. Even Justice Anthony Kennedy, nowadays the “swing vote” in so many of the most closely contested cases, appeared to be leaning in the company’s direction.

Given the majority’s ruling in the Citizens United case, which essentially demolished federal regulation of campaign spending, it’s hard to see how the justices could not favor the plaintiff’s claim. After all, in Citizens United, the majority reached a conclusion that no court since the industrialization of America began had reached — that corporations enjoy the same First Amendment protection of free speech that individuals have. If the “speech” of for-profit businesses is protected by the First Amendment, then surely they must be able to hold similarly protected rights to religious practice.

It’s worth noting Citizens United’s impact on our politics. As a result of that novel — indeed, radical — decision, big money now enjoys a dominant role in politics unseen since the gilded age and the transparent subterfuge of so-called “independent expenditure committees” and 501c(3) organizations has injected a breathtakingly unapologetic hypocrisy into our electoral campaigns. That corrosive disruption, however, pales before what may occur in the wake of Hobby Lobby.

No American court under any circumstance ever has held that corporations enjoy religious rights under the First Amendment — and with good reason. First there’s the logical problem: How does a corporation pray or perform purely religious duties? Many believers are bound to be deeply offended by the notion that such a thing is conceivable. This week, Mother Jones magazine quoted the prominent Mormon legal scholar Fredrick Gedicks as saying he is affronted by “the notion that selling glue and crepe paper is equivalent to his religious practice. ‘I’m a religious person, and I think my tradition is a little different from an arts and crafts store,’ ” he told a forum sponsored by the American Constitution Society.

Some conservative commentators have tried to get around such objections to Hobby Lobby’s argument by contending that the company’s suit relies not on the First Amendment, but on the Religious Freedom and Restoration Act of 1993, which was jointly sponsored by Sens. Ted Kennedy and Orin Hatch and signed into law by President Bill Clinton. In fact, its genesis is instructive in this instance, though probably not in the way conservatives now contend. In 1990, the Supreme Court heard the case of two men who were denied unemployment benefits after the state of Oregon fired them from a drug rehabilitation program for using peyote. The men were members of the Native American Church in which peyote plays a sacramental role. In their case, Employment Division v. Smith, the court ruled that laws of “general application” are not subject to claims of religious exemption.

Writing for the majority, Justice Antonin Scalia — who now appears ready to rule for Hobby Lobby — said, “The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind — ranging from compulsory military service to the payment of taxes to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races.”

Three years later, concerned that the court had drawn too restrictive a standard, Congress passed the Religious Freedom and Restoration Act, which said courts should consider whether a plaintiff’s beliefs are sincere and whether complying with a law or regulation would impose an “undue burden” on the believer. The sophistry here is that you can’t assert a claim under the Freedom and Restoration Act unless it’s protected under the First Amendment, which means Hobby Lobby’s case is, at base, a First Amendment one.

Scalia’s alarm as expressed in the Smith case remains compelling. Consider the situation in California, where our diverse population encompasses every form of religious belief from the most traditional to the most novel and woolly headed. Here’s a simple example: Tens of thousands of Californians believe in biblical inerrancy, so let’s assume that one of them has a business and asserts that they sincerely believe that First Timothy’s admonition that women should not be given “authority” over men must be taken literally. Would they then be free to deny women promotion to supervisorial jobs?

You can see where this inevitably will end up, and all we can hope is that even this court will be loath to take us there — but don’t count on it.

Tim Rutten is a columnist for the Los Angeles News Group. ruttencolumn@gmail.com.

About the Author

Tim Rutten

Tim Rutten is a columnist for the Los Angeles News Group. Reach the author at ruttencolumn@gmail.com .