Hobby Lobby and the New 'Alienable' Rights

The owners of this Christian company object to contraception. But it's their assets, not their beliefs, that will make their case so persuasive to this Supreme Court.

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My money’s on Hobby Lobby—not because it’s a corporation, not because it’s Christian, but because its owners are rich.

The specific issue in Sebelius v. Hobby Lobby Stores is whether a for-profit corporation may refuse to comply with mandatory employee insurance coverage provisions of the Affordable Care Act, on the grounds that its employees may use their insurance for purposes the company’s owners find distasteful on religious grounds.

Hobby Lobby, a chain of craft stores, and Mardel, a chain of Christian supply stores, are owned by the Green family of Oklahoma. The Greens are conservative Christians who object to any form of contraception that can prevent a fertilized egg from implanting in a woman’s uterus. The Act requires that employee insurance policies cover all forms of FDA-approved contraception.  This requirement, the company argues, is a “substantial burden” on its corporate right to “the free exercise of religion,” and thus violates the federal Religious Freedom Restoration Act.

Hobby Lobby and Mardel are not “religious corporations”—that is, tax-exempt bodies set up for religious purposes, like the Mormon Church or the Watchtower Bible & Tract Society. If they were, they would already be covered by a partial exemption that permits religious employers to comply with the law while not directly subsidizing contraceptive care. The family shareholders want good old-fashioned profit; they also want to conduct their business according to their own principles. As well they might, as long as they comply with the law.

The ACA’s requirement that the companies provide a full palette of insurance benefits is simply a general regulation of economic activity. And, operating under the old paradigm, I would find it handily constitutional. I don’t say that because I scorn the Green family’s faith. I have no doubt their concerns are genuine and heartfelt. But those concerns are not the only interests at stake.

To begin with, there is, of course, the federal government’s power over commerce, guaranteed in sweeping terms by Article I, § 8 cl. 3.  That’s a central part of the constitutional design, and allowing people to opt out of it for religious reasons can make congressional programs like the ACA unworkable. (The Supreme Court recognized as much in cases that refused to allow an Amish farmer and a Native American family a free-exercise right to opt out of Social Security.)

Congressional power by itself might not be enough to overcome the Greens’ scruples. But let’s factor in something else: the religious, and economic, rights of their employees. Those ought to count too.

The coverage provisions of the ACA were enacted specifically to protect employees by making sure they receive full health-care insurance coverage.  Many of those employees do not share Hobby Lobby’s religious beliefs. Some may have medical need of these drugs, and may have no religious objection to using contraception. In fact, for some of them, the use of contraception may itself be a question of “free exercise”—of giving practical expression in daily living to their religious beliefs. I know many people of faith who consider a woman’s reproductive rights to have spiritual significance. For those reasons, denying employees coverage is a burden on them; that burden should be weighed against the burden on the Greens.

But I have little confidence that it will be. To understand why, let’s look back at a case argued in November—Unite Here Local 355 v. MulhallThis case was pushed hard by anti-union and libertarian groups, excited by the chance to gut statutory protections of union organizing that have been in place since the 1930s.

Unite Here concerned a union that wanted to conduct an organizing drive. Before it began, it reached an agreement with the management: The union would not picket or call for boycotts, and it would actively support a referendum that the company supported. The management would not actively try to discourage employees from signing up as members and would provide information like the names and addresses of employees. It’s a fairly common arrangement in labor relations—one of the purposes of federal labor law is to prevent the disruption and hard feelings that come from bitter organizing disputes, wildcat strikes, secondary boycotts, and so on.

But in the new language of rights, the agreement here was a “bribe” to the  union, forbidden by federal statutes that bar businesses from giving unions any “thing of value.” The theory behind these laws is that corrupt unions might extort money payments from management to pull back on organizing drives.  But this Court has a more sweeping view of “thing of value”—an agreement to cooperate, the justices seemed to think, was itself a payment. “But can we talk just about property just for a minute, just in the abstract?” Justice Anthony Kennedy asked the union’s lawyer. “Isn't it true that what you have might become property when you trade it?”

The question exemplified the Court majority’s dessicated, brain-in-a-bottle approach to practical questions. In the abstract, anything you have—whether a new Gran Torino, or a right under a statute or the Constitution—is property.  And if you reach an agreement with someone else (for example, not to criticize him or her publicly), some green-eye-shade Gradgrind in accounting can slap a dollar value on it.

In the vulgar economics that dominates most legal discourse, that means the thumb goes to the productive, the rich, the “job creators.” As Justice Antonin Scalia explained in his Citizens United concurrence, “to exclude or impede corporate speech is to muzzle the principal agents of the modern free economy. We should celebrate rather than condemn the addition of this speech to the public debate.” At oral argument in that case, Justice Anthony Kennedy suggested that corporate speech was in a certain way more important than individual speech, citing “the phenomenon of television ads where we get information about scientific discovery and environment and transportation issues from corporations who, after all, have patents because they know something.”

They run things; they know more than we do; we need to hear their instructions.

In case after case, the Supreme Court, and some of the lower courts, have looked at speech cases solely from the point of view of the asset holder. Arizona’s public-finance system, the majority held, had to go because it “imposes a substantial burden on the speech of privately financed candidates and independent expenditure groups.” That “burden” was the prospect that publicly financed candidates might be able to answer privately financed advertisements: “an advertisement supporting the election of a candidate that goes without a response is often more effective than an advertisement that is directly controverted.”

There are two candidates—and two sets of speech rights—in that hypothetical. The Court did not undervalue the publicly financed candidate’s rights. It did not value them at all.

In R.J. Reynolds Tobacco Co. v. Food and Drug Administration, the D.C. Circuit found that graphic warning labels on cigarettes were “ideological” burdens on the free speech rights of the tobacco giant. These warnings were designed to protect consumers—many of them children—from the most important single cause of preventable death in the country, and perhaps the world. But to the panel majority, those health interests literally do not exist:  “We are skeptical that the government can assert a substantial interest in discouraging consumers from purchasing a lawful product, even one that  has been conclusively linked to adverse health consequences.”

At the outset of the American experiment, speech was an aspect of civic personhood. Free exercise—what Madison called “the rights of conscience”—belonged to the spirit.  They were “inalienable rights.” The phrase has an antique sound; we live today in what philosopher Michael Sandel called “the era of market triumphalism,” the universe of Gradgrind.  Something that can’t be “alienated”—sold or given away—can’t be monetized, and has no value in the new world of markets.

By the rights-are-assets logic, then, government should entrust their employees’ reproductive and religious rights to the Greens, who have demonstrated they will use them for maximum return.  The employees have no right to complain; they sold their rights on the free market.