Hallowed Be Thy Firm

Protesters gathered outside the Supreme Court on Monday morning.

Protesters gathered outside the Supreme Court on Monday morning. (Photo Credit: Pablo Martinez Monsivais)

Conservatives are thrilled with the latest Supreme Court decision. They shouldn’t be.

Can corporations have religious beliefs? The U.S. Supreme Court believes they can, ruling Monday that crafts retailer Hobby Lobby could not be forced to provide contraceptive insurance coverage for its employees. The decision was the latest in a long line of partisan 5-4 opinions from a court which already boasts the highest percentage of such rulings in Supreme Court history.

At issue was a provision of the Affordable Care Act — the 2010 law better known as “Obamacare” — that required employers to pay for a suite of reproductive insurance measures including birth control. Religious groups immediately rose in opposition, claiming that the mandate violated their First Amendment rights. Republican candidates for president agreed, blasting the Obama Administration for its “attack” on religious liberty.

In response, the White House approved a compromise measure excepting explicitly religious institutions like churches from the contraceptive mandate. The clergy backed down, but religious business-owners believed that their corporations deserved the same regulatory exception. Hobby Lobby CEO David Green was one of them, filing suit in September 2012. The retailer claimed victory in three of five federal appeals courts before the Obama Administration appealed to the Supreme Court.

You can read the full text of the majority opinion here, but it holds few surprises. The five-member conservative majority has fielded the same arguments defending corporate personhood since before Citizens United, appropriating additional rights once reserved for individuals with each new decision. Burwell v. Hobby Lobby continued the trend, granting corporations religious protections similar to those of human citizens.

According to the decision penned by Justice Samuel Alito, the federal government cannot order closely-held corporations with religious objections to provide contraceptives to their employees. For reference, “closely-held corporations” are defined by the Internal Revenue Service as those where more than 50% of outstanding stock are owned by five or fewer individuals. That includes roughly 90% of American businesses, but only half of American workers. Many more work for government or larger corporations still bound by the contraceptive mandate.

Any gaps in contraceptive insurance coverage created by the decision will likely be closed without issue — Alito himself suggested that the federal government could simply provide those services to affected individuals directly. It should also be noted that Hobby Lobby only targets four specific types of contraceptives, leaving even those employers with religious objections on the hook for the other sixteen FDA-approved varieties.

The ease with which five men dismissed the medical concerns of millions was troubling, but the more worrying precedent involves their willingness to acknowledge the religious beliefs of non-living entities. Corporations cannot think, feel, or believe. They are legal constructs, not human beings. Whether or not a business is “religious” depends entirely on whether or not its owners are. Never mind that these particular owners have for years invested in the very contraceptives they oppose.

Were an atheist to purchase Hobby Lobby tomorrow and change its insurance policies, the religious beliefs identified by Alito and his colleagues would disappear. Hobby Lobby would still be the same legal entity with the same revenue, property, and employees, but it would have no religious affiliation. There is a fundamental difference between a for-profit corporation with religious owners and an explicitly religious institution like the Catholic Church.

Religious conservatives celebrated the decision as a victory for religious freedom, but they should consider its broader implications. The Supreme Court ruled against a mandate concerning four contraceptives that one business believed equal to abortion, but drew an important distinction between them and other modern medical procedures.

Why did the Court refuse protection for businesses owned by Scientologists who oppose vaccination, Jehovah’s Witnesses who ban blood transfusions, or Jews and Hindus who disapprove of medications coated in gelatin derived from certain animals? Why did they only go far enough to codify the interests of mainstream American Christians, specifically Catholics — although the vast majority of them use birth control themselves — and fundamentalist sects?

Imagine the uproar had the same case been brought by fundamentalist Muslims who forced their employees to cover their faces in the workplace, refused equal pay for women, or denied them insurance coverage for opposite-sex physicians. It is difficult to imagine their claims of religious freedom finding any traction at the Supreme Court, but the door has been opened. Other businesses will surely plead their cases regardless of creed, and American conservatives may not be cheering for long.

Ours is a nation of equality before the law regardless of faith. Those who hid behind biblical racism were forced to accept emancipation and desegregation. Those who used religion to deny their daughters an education were made to change. Those religious men who would now deny their neighbors the right to marry are only the latest in a trend as old as America itself.  The secular good has always trumped antiquated dogma.

They may be legal “persons,” but corporations are not individuals and and should not be treated as flesh and blood American citizens. The Roberts Court will probably limit its rulings to Christians, but the funny thing about precedent is that it outlives those that set it. You would think five lawyers would better appreciate the law of unintended consequences.


From the dissent of Justice Ruth Bader Ginsburg: “Approving some religious claims while deeming others unworthy of accommodation could be perceived as favoring one religion over another, the very risk the Establishment Clause was designed to preclude. The court, I fear, has ventured into a minefield.”


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