One of the frustrating things about the reactions to the Hobby Lobby ruling—mostly from progressives, if only because people naturally to respond in much greater detail to decisions they disagree with—is that there’s an interesting debate to be had about the case, but we’re mostly not having it. Most of the critiques I’ve seen of the ruling involve fervently advanced arguments that are simply not relevant to the decision, along with a smattering that are relevant but not very good. This is not entirely the fault of the critics: Of the five “myths” about the Hobby Lobby case that Irin Carmon seeks to debunk over at MSNBC, only number 4 is really germane to the core logic of the ruling, but she’s responding to things various conservatives nevertheless keep asserting. So, if only in the interest of pushing the public debate into a place I find more interesting and fruitful, I’d like to help the critics out and sketch what I think a better argument against the Hobby Lobby ruling would look like… in the next post.
But first, to lay some groundwork, it’s important to be clear on the basis of the ruling so we can sort out the irrelevant arguments and dispose of the weak ones. There are really three central elements on which the decision rests:
• A “closely held” for-profit corporation like Hobby Lobby is a “person,” as that term is used in the Religious Freedom Restoration Act, whose “religious practice” can be burdened by government
• The requirement that a business providing health coverage for employees must provide via that coverage no-copay access to 20 forms of contraception “significantly burdens” the company’s religious practice, and
• Given the availability of “less restrictive means” of achieving the government’s aim of enabling widespread access to contraception, the government must accommodate Hobby Lobby by exempting the company from the mandate and pursuing those means.
The relevant-but-not-very-good arguments are mostly about the first two holdings, and consist to a depressing extent of derpy one-liners to the effect that corporations aren’t literally persons, can’t go to heaven, don’t get circumcised, and so on. As Matt Yglesias explains at Vox, Supreme Court justices actually understand this well enough. But the legal fiction of corporate personhood is not some perverse metaphysical confusion invented for the purposes of the Citizens United decision; it’s a longstanding legal principle courts have long taken for granted as a means of protecting the rights of individuals acting collectively through a particular legal form. The better and slightly more subtle version of the argument offered by Jacob Levy (and closer to that made by the dissenting justices) is really about the second prong: Even if corporations are “persons” under RFRA, the corporation as such doesn’t have religious “beliefs” or “practices” that can be burdened, in the same way that a corporation can engage in “speech” distinguishable from the speech of any individual member. Holding otherwise requires effectively “piercing the corporate veil” to equate its interests with those of a small number of owners—which is exactly what those owners don’t want courts to do when (say) making liability judgments.
That’s a better argument, but decisive point here, I think, is the one the majority makes: There is no serious disagreement that non-profit corporations—like churches, charities, and hospitals—are “persons” with “practices” that can be burdened as those terms are used in RFRA. Once you make the routine assumption that “persons” in a statute includes corporate persons absent some clear signal to the contrary, as basically all the litigants and justices do with respect to non-profits, there’s just nothing in RFRA to support a distinction between corporate persons based on their tax status. Whatever it might mean for a church or a school as a legal entity (as opposed to the people who run it) to have a “religious practice,” everyone’s taking as given that some do, and “not disbursing revenues as dividends” doesn’t seem like it can be the critical feature that makes this possible. This isn’t a deep question of fundamental constitutional rights, but one of statutory construction: Congress clearly could have written a distinction based on tax status into the statute, but they didn’t, so the court assumes that “person” means what it means in every other statute that doesn’t explicitly limit that term to natural persons. Also, as a not-strictly-legal point, Milton Friedman’s incorrect view that profit is the only legitimate aim of a for-profit corporation is not one you usually see progressives embracing quite so vigorously. When a company declares a commitment to values of social justice or ecological sustainability, nobody complains that this is nonsense, and really it’s just the owners and executives who “care” about or “hold” these values in a literal sense. Or at any rate, nobody who’s at all sympathetic toward those values.
Then there are the irrelevant arguments, which are of varying quality. Some focus on the scientific falsity of Hobby Lobby’s view that some types of covered birth control are abortifacents, which seems like the equivalent of quibbling with the evolutionary plausibility of the X-Men’s superpowers. It’s true, but it misses the point. In general, religious views are scientifically a lot of nonsense, and allowing any kind of religious exemption or accommodation is going to entail deferring to personal objections that, by ordinary standards of rational empirical inquiry, are pure gibberish. There is no scientific reason to think that a consecrated host is literally transmuted into the body of Christ, or that the camera used to take a photo for a government ID will steal the subject’s elan vital, or that humans were created by a supernatural intelligence. If the law accommodates people with these beliefs where feasible, it is not because any of them are remotely scientifically respectable, but because we try to avoid compelling people to directly violate their profound convictions any more than necessary, even when the convictions are stupid, and because we don’t really want government in the business of determining which are the stupid convictions.
Finally, there are arguments having to do with the importance of widespread access to contraception. The sillier ones equate an employer’s failure to directly supply that good with control over people’s bodies and sex lives, which is odd, because nobody thinks anything similar is true about the billions of people around the world who are also failing to buy coverage for specific Americans. The better ones go into all the reasons access to contraception is a great social good there are many reasons for government to promote, which I tend to agree with.
But at least for the purposes of its ruling in Hobby Lobby, the Court also agrees, assuming (though it does not hold) that facilitating access to contraception is a compelling state interest, potentially weighty enough to justify burdening religious practice. And so, as I argued earlier this week, really the decision comes down to this assertion by Justice Alito:
The effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero. Under that accommodation, these women would still be entitled to all FDA-approved contraceptives without cost sharing.
If Alito is right, and the Department of Health and Human Services can simply extend the exemption it already offered religious non-profits to companies like Hobby Lobby while guaranteeing the same contraceptive coverage for its employees, then you can’t oppose the exemption on the grounds that it restricts people’s ability to get healthcare or interferes with their sexual autonomy or anything like that. If Alito is right, all that’s really left is the idea that we should shit on stupid religious people as a purely symbolic gesture. Which is all well and good for private individuals, but not a great argument for state compulsion.
If Alito is not right, on the other hand, things look very different. Because having assumed that enabling access to birth control is a compelling state interest, the Court has to balance the coverage mandate’s burden on religious practice against the cost of achieving the state’s compelling aims by alternative, “less restrictive” means. If, as Alito seems to assume, those costs are trivial (or even nonexistent), then the case is a no-brainer and the ruling correct. But the ruling leans pretty heavily on that assumption. If it could be shown to be wrong, then whether or not we think the ultimate result the Court reached is correct, we’d have a pretty good argument that Alito’s argument to that result is inadequate. I’ll sketch what that better argument might look like in the next post.