The Case Against Hobby Lobby, by the Man Who Won Citizens United

Ted Olson often receives credit/blame for helping to create corporate personhood, but he's not so sure about the recent Supreme Court decision.
Reuters

It's easy to draw a straight line between the Supreme Court's 2010 decision in Citizens United and its decision this week in Hobby Lobby. After all, both decisions were decided by a 5-4 margin; both were victories for conservatives; and both expanded the concept of corporate personhood.

But what if that connection isn't as strong as it appears on first look? One person who is skeptical is the lawyer who successfully argued on behalf of Citizens United, Ted Olson. During an appearance Wednesday at the Aspen Ideas Festival, which is hosted by The Atlantic and the Aspen Institute, he raised some questions about the Hobby Lobby decision. 

"This case is rather interesting because it talks about whether or not corporations can have religious views," Olson said. "I’m sort of sympathetic to [Justice Ruth Bader Ginsburg's] dissent in this case."

Olson is widely considered one of the best conservative lawyers in the country, but his views aren't uniformly right of center. He's a conservative hero for his work on Citizens United and Bush v. Gore and served as solicitor general under President George W. Bush, but he has also won liberal praise for fighting for same-sex marriage.

Among the major questions Olson posed:

  • "What in the world is a 'closely held corporation'"? The decision applies only to such companies, but deciding who gets covered could be a legal mess. Olson agreed with fellow panelist and Georgetown law professor Neal Katyal, who called the decision "a full-employment act for lawyers."
  • How far could the legal ramifications extend? While the case involved only contraceptive coverage, Olson imagined suits by "closely held" corporations led by people with religious views opposed to a variety of practices. What about vaccines? Could the views of Christian Scientists, who reject many forms of medicine, lead to companies owned by Christian Scientists refusing to offer insurance? Sherrilyn Ifill of the NAACP Legal Defense Fund wondered whether a Christian corporation could refuse to extend health benefits to an employee's gay partner, or to an employee's child who had come out as gay.

These are different questions from the ones in Citizens United, Olson noted. (In that case, a small company wanted to air a politically charged documentary.) And he noted that Citizens United was hardly the first to establish that corporations do hold some rights. "Notwithstanding the New York Times editorials on Citizens United," Olson quipped, the newspaper was the plaintiff in one of the foundational cases for corporate rights—the landmark press-freedom decision New York Times v. Sullivan.

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David A. Graham is a senior associate editor at The Atlantic, where he oversees the Politics Channel. He previously reported for Newsweek, The Wall Street Journal, and The National.

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