When I hear somebody use the expression I’ve taken for a title, I think one of two things. Either some monstrous evil is about to be justified by appeal to the sacredness of profit, or it’s time to hold on to your wallet. I should likely leave this topic alone, since I’ve been trying not to write about political firecrackers. But there are so many things wrong with the SCOTUS Hobby Lobby decision that one hesitates to try to list them. Still, among the concatenation of fact, falsehood, and argument swirling around the decision’s aftermath a few things seem to me to be of particular importance.
It’s been known for some time that Hobby Lobby’s owners are connected with right-wing organizations whose goal is to push “a Christian agenda into American law,” as Eli Clifton has reported in Salon. Time has reported this week that the Green Family (Owners of Hobby Lobby) were recruited to act as poster children for this particular lawsuit against a portion of the Affordable Care Act. They had a family prayer meeting about the matter before they decided to act, but in the final analysis they signed their company up to front for a political action that originated with The Becket Fund for Religious Liberty.
The Becket Fund is a right-wing Washington law firm that specializes in “religious freedom” cases. To be fair, Becket has defended persons and organizations of a variety of faiths. On the other hand, the Fund has made significant recent contributions to the current trend that interprets religious freedom as a Christian license to discriminate against individuals and has been allied with others, including Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, about which I’ve written earlier, the recently enacted Arizona SB 1062 that would have provided religious exceptions to protections in federal public accommodations law and specifically permitted discrimination on the basis of sexual orientation, vetoed by Governor Jan Brewer, and now in Burwell v. Hobby Lobby.
It appears as well that the Green family’s participation in this present case was not the sincere religious matter it has been portrayed to be by media and by the Supreme Court. The Greens are heavily invested through their pension fund in pharmaceutical companies that manufacture IUDs and the specific birth control medications to which the Greens affected to object as well as drugs used to induce abortions. The story was first reported by Molly Redden in Mother Jones and has been confirmed by Rick Ungar in a piece published today in Forbes, and elsewhere.
The Greens have a perfect right to invest pension funds in whatever way they choose, as long as their investments meet their fiduciary obligations. But they do not have a right, it seems to me, to support the manufacture of the very devices and medications to which they claim a religious objection that qualifies them for an exemption from the Affordable Care Act’s employer mandate. Conservatives have rushed to defend the Greens, claiming among other things that they were not responsible for these investments, didn’t know about them, and didn’t profit from them. Ungar pretty much demolishes those arguments and sums up as follows:
You simply can’t say that you will give your all in defense of your closely held beliefs when it suits you while seeking to make money in violation of those beliefs. You also cannot pretend you were simply negligent in learning what investments you hold if you are going to hold yourself out as an example of righteousness.
These observations underscore the extent to which this lawsuit is a move in the political chess game that is being played out over the Affordable Care Act. Justice Alito admitted in his majority opinion that the SCOTUS doctrine that corporatiions are people is a fiction, but claimed it is a useful fiction designed to protect the people who own corporations from harm.
[T]he purpose of extending rights to corporations is to protect the rights of people associated with the corporation, including shareholders, officers, and employees. Protecting the free-exercise rights of closely held corporations thus protects the religious liberty of the humans who own and control them.
Whether Justice Alito was aware that he had contradicted himself here in including employees in one sentence among those protected by the “familiar legal fiction” of corporation=person and excluding them in the next I cannot judge. But the contradiction makes clear the perversity of the fiction.
There is a second perverse fiction involved in Burwell v. Hobby Lobby, and that is the fiction of sincerely held religious beliefs. The Greens’ beliefs as described in Burwell v. Hobby Lobby are at the very least problematic scientifically, but now it turns out that their sincerity is open to question as well. Women, it is claimed, may not use certain contraceptives with the Greens’ support, but it is perfectly all right for the Greens to profit from the manufacture of these same contraceptives.
To be sure, the court more or less invited the President and Congress to extend the arrangement devised for non-profits who claim a religious exception to for-profit corporations such as Hobby Lobby. I suspect that this will be done, and that the cost of covering Hobby Lobby employees for the contraceptives to which Hobby Lobby objects will ultimately be passed on to you and me. And perhaps this means can be extended to the many other corporations now in queue for the religious exception. I will be glad to pay it, but this eventuality merely invites the religious right to espouse another putatively righteous cause.
It’s tempting to dismiss this entire matter as just another example of the contemporary practice of religion as identity politics, though I have no dog in that hunt. But now that this deplorable Supreme Court decision has entered the realm of precedent it is being interpreted with some justice, as in Justice Ginsburg’s dissent but also on the right, as opening the door to all sorts of new exceptions to established law on the basis of religious scruple, which need not have a grounding in fact and may, perhaps, even be feigned. As Justice Ginsburg has wisely pointed out, the court has “ventured into a minefield,” exposing itself to the necessity of deciding perhaps thousands of supposed “religious freedom” cases ad hoc.