The Case of Hobby Lobby and the Illiberal Liberals?

Note: This post will make a lot more sense if you read or have read its immediate predecessor, explaining and critiquing the Supreme Court's decision in Burwell v. Hobby Lobby, Inc. I'm sorry, I just can't go through all that again. I owe you a cat video, ok?

Both Julian Sanchez in a post at Cato at Liberty and, albeit now in a much moderated way from his initial response, Andrew Sullivan are suggesting that liberals reactions to Hobby Lobby, are being alarmist and illiberal.

I'll take Sullivan's most recent formulation, because it's frankly very much better than either his early efforts or Sanchez's rather snide little piece (which, among other flaws, assumes that Justice Alito's majority opinion is correct in assuming that there is an easy, available workaround for the Government in just extending the same exemption it provided religious establishments and faith-based non-profits; this may not be the case, and it assumes that the Court won't declare even the minimal involvement of requesting the exemption to be violative or RFRA, a position I wouldn't bet on. Really, I wouldn't).

So, after several go-rounds with his readers, Sullivan writes:

The first is on the question of religious freedom. And I agree with my reader on the core point. I do not believe that even a closely held religiously informed for-profit corporation has a soul. In fact, the desire for profit is a very strange thing for a religious organization to be involved in at all. Whatever the heretical claims of the Prosperity Gospel, there is no serious Christian defense of making money as your primary purpose – and a for-profit company is, by definition, primarily about making money. I think that automatically excludes it from the religious principle. You pick either God or Mammon. Ayn Rand, for the umpteenth time, is an enemy of Christianity, not an ally.

My own view of a religious organization is one primarily devoted to religious ritual and service. Some non-profit charities would be included, but no for-profit companies would. In other words, just to be clear, I would have voted for the minority if I were a Supreme Court Justice on those grounds alone. Norm Ornstein has a great post on this principle and I share almost all his conclusions.

Equally, I think it’s fair to say that the sincerity of the religious motives behind Hobby Lobby is a little dodgy. They provided – voluntarily – the very allegedly abortifacient contraceptives in their own health insurance coverage before the ACA came into effect. How does that square with their claim to be stricken by their conscience on the question now that Obamacare is mandating it? Hobby Lobby also has investments in companies that make contraceptives. Again, their squeamishness now reeks of opportunistic politics, not sincerely held religious conviction.

I’m also struck, as I wrote yesterday, about the very Catholic-centric view of religion this ruling implies.

One wonders, as Ginsburg wrote in her dissent, if the Justices would apply these sentiments to non-Christian religions. I noted the burqa ban in France as a distant analogy, but Steve Coll goes one further and imagines a fanatical Muslim corporation asking for the equivalent rights, as in, say, exemptions from vaccines. And here is where Alito is at his weakest. His only proactive response to this is to assume that there will not be “a flood of religious objections regarding a wide variety of medical procedures and drugs, such as vaccinations and blood transfusions.” As Coll, rather drily observes: “Why not?” The religious convictions of many Muslims go far deeper than most evangelical Protestants and devout Catholics.

But here’s where I stick with my point about perspective. In the last few years, America has crossed the Rubicon of universal health insurance. In that new law, contraception coverage was, for the first time, mandated for anyone with health insurance. That strikes me as a huge gain – not just for those women who could not afford insurance before but for those women with insurance, where contraceptive coverage could be at the whim of employers. And when government mandates something, it will get always get some petitions for exemptions. We’ll see in due course – and the Dish will keep close tabs on – how big a loophole it turns out to be. But if the administration can deploy the fix used for religious organizations proper – getting insurance companies to provide the contraception and then get re-imbursed by the government (see here for the difficulties involved), then we could easily have a win-win. Everyone gets guaranteed contraception coverage and a few religious closely-held corporations can keep their hands “clean”.

And let me suggest something else about toleration of these religiously-based companies. It will hurt them in the long run. What Hobby Lobby has now announced to the world is that women who use contraception shouldn’t work there if they don’t want to live in a hostile environment, and no one should buy goods there if they object to their policy targeting women’s healthcare – and women’s alone – for discrimination. A company that behaves this way is a company that will lose customers and potential employees. The positive way to respond to this is to stop shopping there and to seek employment elsewhere. You can even boycott if you wish. Since the vast majority of women, including overwhelming majorities of Catholic women, don’t agree with the ludicrous case against contraception, it seems to me that this kind of policy will not be in the interests of any company trying to make a profit. That’s how a free society works.

***
But in a free society, religious fanatics and bigots have rights as well. I would not have given Hobby Lobby what SCOTUS just did, but I sympathize with the principle involved, and prefer a limited government in a free society over a powerful government in a more just one. And a free society must mean religious freedom sometimes in contravention of established norms. That’s what freedom requires. And we are a stronger country for it.

Now, on the whole I like Sullivan--he's a conservative, but tries hard to be honest and fair, and changes his mind when confronted with evidence.

But this post, especially the last paragraph, exemplifies why, every so often, he can have me rolling my eyes in frustration.

He starts off well--he gets that the for-profit corporation has no soul, that the decision has the potential to radically de-stabilize settled areas of law, and that liberals are reasonably skeptical about the court's touting it as a "narrow" decision, or, for that matter, applying it even-handedly. But then he expresses "sympathy for the principle involved" and "prefer[s] a limited government in a free society over a powerful government in a more just one. And a free society must mean religious freedom sometimes in contravention of established norms. That’s what freedom requires. And we are a stronger country for it."

This statement on Sullivan's part is predicated on an erroneous assumption that many libertarians (Sanchez included) makes: assuming that the values of religious toleration are furthered even when they apply to for-profit corporate entities. They ignore the fact that a corporation is a creation of the law, and that it, by dint of the privileges and powers vested in it by the state, has power on a scale almost never in the hands of any but the most wealthy individuals. And indeed, Hobby Lobby boasts "575 stores across the nation that average 55,000 square feet and offer more than 67,000 crafting and home decor products. Hobby Lobby is listed as a major private corporation in Forbes and Fortunes list of America's largest private companies, and our company carries no long-term debt."

The ability of the corporation to grow, to take risks, is materially enhanced by its corporate status. An accident in a store, for example, does not imperil the personal assets and home of the company's founders. And a corporation of its size is not, shall we say, in an equal bargaining position with its workers. Sullivan's blithe advice-don't work there, don't shop there--does not take into account our sluggish job market, the pressures on women who need work, and lack the resources Hobby Lobby can bring to the fight (and in fact, to be fair, Hobby Lobby appears to be an above average employer for retail). The great libertarian error, in my opinion, is the assumption--counter-factual in retail employment--that we all live in a world where jobs are plentiful, and bargaining power is equal. Also, by the way, customer bargaining power is likewise diffuse and complex.

Chief Justice John Marshall, in 1819, explained in Dartmouth College v. Woodward:

A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it either expressly or as incidental to its very existence. These are such as are supposed best calculated to effect the object for which it was created. Among the most important are immortality, and, if the expression may be allowed, individuality -- properties by which a perpetual succession of many persons are considered as the same, and may act as a single individual. They enable a corporation to manage its own affairs and to hold property without the perplexing intricacies, the hazardous and endless necessity, of perpetual conveyances for the purpose of transmitting it from hand to hand. It is chiefly for the purpose of clothing bodies of men, in succession, with these qualities and capacities that corporations were invented, and are in use.

Hobby Lobby is not a religious corporation, but a for-profit one. When it is permitted to be at once separate from its owners in all other matters and yet presumed to hold their religious views, and to be afforded exemptions based thereon, the results enhance not the liberty of the citizenry at large, but of those who are already in positions of power over employees at nearly 600 stores.