text:
Some Advice for Liberals....
...from Ross Douthat about religious freedom.
"The entire conflict between religious liberty and cultural liberalism has created an interesting situation in our politics: The political left is expending a remarkable amount of energy trying to fine, vilify and bring to heel organizations — charities, hospitals, schools and mission-infused businesses — whose commitments they might under other circumstances extol.
"So the recent Supreme Court ruling offers a chance, after the hysteria cools and the Taliban hypotheticals grow stale, for liberals to pause and consider the long-term implications of this culture-war campaign." NYTimes Sunday OP-ED
About the Author
Margaret O'Brien Steinfels, a former editor of Commonweal, writes frequently in these pages and blogs at dotCommonweal.
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I'm disgusted with the liberal establishment. They're acting as if the religious freedom clause isn't really real, so the right to free exercise of religion doesn't mean what it says.. But it is quite real (second only to freedom of speech in the Bill Rights). If there is a conflict of rights (in theHobbly Lobby case, the religious right and the equal treatment right) that does not cancel out either one of them. So if steps can be taken to honor both rights, then the steps should be taken.
NOW in particular seems to have turned bossy. It did a lot of good in the past, but it's turned into a real nanny.
Does the fact that Hobby Lobby invests in Viagra make it a liberal's choice? Better paragon, Ross, please. There's a lot of hypocrisy to go around, and perhaps Ann has a point: NOW, the Republican obstruction, Hobby Lobby, and those annoying Viagra spams all make for a good party. Put 'em in a jar, shake 'em up and see what falls out.
Liberal estblishment? What's that?
Hobby Lobby is a "mission-infused businesse"? I guess we'll ignore their investments in contraception and in Chinese made goods.
Liberal religious believers have an authentic investment in defusing the conservative religious hysteria over "threats to religious liberty". Bishop Gene Robinson has an article at The Daily Beast about this ... "Even After Hobby Lobby the Religious Right is Still Terrified" ...
Ann Olivier,
A lot of the cases aren't government versus religion but competing religious claims. Does the employer have a right to set religious standards of employment or do employees have the right to live according to their own religious standards? Does the desire of an employer to not be involved in activities they believe are immoral however remotely trump the right of employees to manage their own health care and the health insurance managed by the company but earned by the employees via their labor? Does the right to not recognize marriages that do not meet one's religious standards create a right to veto the marriages of others?
In these cases, liberals aren't choosing government over religion but the right to live without interference from the religion of others over the right to impose one's religion on others.
TF: What's the liberal establishment? Why not start with the Democratic Party?
Hobby Lobby had objections not to sex and not to contraception per se (and apparently not to Viagra [I may be mistaken but I don't think the Catholic Church objects to Viagra]), but to the morning after pill and devices that they and other think act as abortifacients. Presumably the basic contraceptive pill could be covered by their insurance policies.
Douthat has some reasonable points. Why the defensiveness?
Hobby Lobby's assertion that the morning after pill and Ella caused abortions was false according to medical professionals. That the court took their word over that of the American College of Obstetricians and Gynecologists was bizarre ... http://www.latimes.com/local/abcarian/la-me-ra-craziest-thing-about-hobb...
Bending over backward to honor religious scruples is clearly a very dangerous policy. There is almost no humane and enlightened social or scientific progress against which religious objections cannot be made. The five Catholic men who sided with Hobby Lobby may think that Hobby Lobby's opinion on the four contraceptives is so obvious and objective that their religious opinion commands respect. But they offer no argument for that perception, merely upholding the sincerity of the opinion.
"Douthat has some reasonable points." OK, I'll bite, what are they?
Perhaps a useful place to start would be a definition of "liberal". Bearing in mind the pervasiveness and sheer lunancy of those who with undeniable self-rightousness flood the airways and written publications not with suggestions but statements of "fact" Obama et.al are a reincarnation of facism I more than suggest that is a required starting point. I toss in among that lot of "God fearing" groups those who lack the ability to discern totalitarianism from communism and disagreement from attack. Such persons more in love with the words than humanity the words represent are doomed to see Satan in every argument requiring them to deal with ambiguity, a basic requirement we rightly expect of useful adults.
"....and the Taliban hypotheticals grow stale,..." sheer grandstanding nonsense. If a person wishes to be considered the voice of reason they might do well to write as if they were familar with reason.
An unwillingness to lightly tolerate condescension is hardly a form of defensiveness.
I'm of two minds about the decision to accept Hobby Lobby's claims at face value. On one hand, we should generally avoid making factual determinations about religious beliefs. Putting religious judgements into the hands of judges will inevitably lead to injustices where judges either tell people what their religion really says or that their religion is wrong. On the other hand, the threshold for an unconstitutional violation of one's religious liberty is now so low that judges will need to begin to make these determinations in order for any of our laws to be enforceable.
Unfortunately, in his ruling, Alito endorsed Hobby Lobby's claims, apparently because they were congruent with his own religious sensibilities. Objections that he consider frivilous do not necessarily get the same protection.
What is interesting is weighing religious beliefs against facts. Religious beliefs have some value but they aren't always true in the same way facts are true. It's one thing to allow believers to preach their beliefs, but it's naother to impose those beliefs on people who aren't believers. And this isn't about religion vs the secular state ... there are many religious denominations and groups that disagree with the Hobby Lobby decision ... http://www.huffingtonpost.com/harry-knox/hobby-lobbys-argument-should-al... ... a particular religious belief cannot trump facts in a pluralistic society, only in a theocracy.
"Putting religious judgements into the hands of judges will inevitably lead to injustices where judges either tell people what their religion really says or that their religion is wrong. On the other hand, the threshold for an unconstitutional violation of one's religious liberty is now so low that judges will need to begin to make these determinations in order for any of our laws to be enforceable."
I've forgottent the rather recent Court decision which says that it it the religious group which decides/defines what their beliefs are. The Court not say that those beliefs have to be rational.
This implies that one has a right to crazy beliefs. When crazy/irrational beliefs affect the lives of others, it's a different matter. In the case of Hobby Lobby, however, the decision does not infringe upon the rights of others -- the employees get their contraceptives. For the left establishment to shriek "Violations of my rights to contraception!" is simply hysteria.
"Why th dfensieess?"
hatmakesyou ink t's defeneiveness. I'm a keptic, tha's ll.
And wish somon oul ix you cmmntboxes,
I read Douthat a couple of times, and I am still baffled. What is he trying to say?There are phrases that suggest he is saying something I agree with, and then he's off into the beautiful writing that seems not to say anything at all and that I would be ashamed to be associated with. Where did his Taliban come from?
Specifically on Hobby Lobby, I am reminded of an old New Yorker cartoon I can quote only approximately. But the boss is explaining to an employee, "Smedley & Co. can pay you a decent wage. Smedley & Co. can provide a safe working environment. Smedley & Co. can help you plan for your old age. But Smedley & Co. can not love you."
The Supreme Court seems to disagree.
Douthat makes an argument; that's interesting in itself.
It begins with the claims that liberals critcize and bemoan the lack of ethical behavior in corporations. Citing the Demos article he points to a corporation that meets many of the standards liberals want to see in corporations: wages, pensions, holidays, etc. That corporation is Hobby Lobby. That it objects to certain contraceptives, but not all, has made it a liberal villan.
Douthat goes on: "The political left is expending a remarkable amount of energy trying to fine, vilify and bring to heel organizations — charities, hospitals, schools and mission-infused businesses — whose commitments they might under other circumstances extol."
The NIH Committee that ruled in favor of including the disputed drugs and devices made no independent judgement about the way these worked, or didn't. One member pointed out that there had been no scientific judgement in the ruling. For what it's worth, the government in arguing against Hobby Loybby before the Court agreed that that HL's views were sincere and not being contested. And the Court made no scentific/medical judgement about the drugs/devices themselves.
Frankly I was surprised that the Court found for Hobby Lobby. But it did. My e-mail box is full of hand-wringing from the usual advocacy groups, more liberal establishment, and more illiberal attacks on religion. Douthat's column raised a warning flag about the venom and hysteria among liberals. It's worth thinking about--taliban and all.
Douthat goes on: "The political left is expending a remarkable amount of energy trying to fine, vilify and bring to heel organizations — charities, hospitals, schools and mission-infused businesses — whose commitments they might under other circumstances extol."
Yeah, and that is one of the places where he left me with my mouth open looking at his back as it disappeared into the weeds. The Obama administration is expending a remarkable amount of energy trying to herd cats into a conservative-"invented" semiuniversal health care system that requires putting hospitals, doctors and other health care providers into convenient insurance boxes (while seducing the insurance companies into producing similar boxes). But that is what comes when you eschew a single-payer sistem. Incidentally, Switzerland does it with seemingly a lot less tsouris. So maybe it's just us. Or maybe it's the supposed inventors.
But the political left doesn't have any skin in that game. That's between Obama and the Republicans he hoped would be allies in enacting and enforcing what was their game. The political left is still on the sidelines, unloved, nursing its wounds and starting to think -- in the light of what followed -- about the good points of Richard Nixon's domestic policies. Douthat may be too young to remember that, but it is in books.
Some of my--for what it's worth--thoughts on Douthat's piece:
1) He raises a very good point on the extremely restricted notion of religion that Ginsburg advocated in her dissent and its problems, perhaps even dangers. This is the same view of religion espoused by the ACLU--religion exists to serve its co-religionists only. I was also troubled by this line in Ginsburg's dissent, and it really does require liberals to think through what they mean by "religion" for political purposes. That, however, is about the only good point I really think he makes.
2) The entire opening section on how Hobby Lobby is a good company is an utter red herring and ignores why most liberals are enraged in this case: much less about religion in itself but the fact that a for-profit corporation (whether closely held or not), which exists to shield its owners from otherwise common responsibilities, can still have rights to religious freedom. To not look at this case through the lens of Citizen United is to miss a major part of liberal angst. To give an (extreme? I'm less sure anymore) example, let's say that Hobby Lobby--that corporation liberals should love--sued and somehow won in the Supreme Court another right that hitherto had existed only for real, not fictitious persons: the right to vote. If uproar was created over that, would that therefore mean that liberals were against voting rights? This seems to be what Douthat is saying in this instance: liberals don't like the Hobby Lobby decision, therefore they are anti-religion. I don't buy this. I suspect that if Notre Dame hadn't already been given everything it wanted (except the need to fill out a form) and this case had been decided for religious non-profits instead, many liberals wouldn't have liked it, but there wouldn't have been nearly this outcry either. The for-profit corporate status of the company is essential to understand what's going on, and Douthat utterly elides it by saying, essentially, "But they're a really nice for-profit company!"
3) If liberals have to be cautious about what they claim about religion, so too do conservatives. Personally, I am appalled by Wheaton College, Notre Dame, the US bishops and even the Little Sisters of the Poor on this. And I am appalled because I, too, want to see robust accomodation for religions in US public life. Yet the frivolousness of fighting over having to fill out a form that does nothing else but notify the US government and insurance companies that you fall into exepted categories and will take advantage of that, shows utter disrespect to the seriousness of religious liberty. How can a good-faith secularist, who many be otherwise disposed to robust pluralism and accomodation, look on this kind of frivolity? This Catholic liberal, who was greatly bothered by the original narrow strictures of accomodation to the contraceptive mandate that seemed to follow Ginsburg's defintion of religion (and which was readily changed, and not through the courts, upon objection), is appalled.
Douthat, as usual, is demonstrating that he is really just a bunch of huey - the NYT's house conservative troll. MOS, you should know better than to join in with the mindless right-wing blather about the menacing intentions of the "political left."
Just where are these denizens of the left? I'd like to meet one before I die. There is no "left" anymore- get use to it. You people watch too much FOX No-News. Just like his ideological bedfellows in the Catholic hierarchy, Douthat is running around with his tin foil hat on to deflect all those mind-control death-rays coming from the liberal alien mother ship in stationary orbit.
Ruth Bader Ginsburg is right. Alito has written an opinion of "startling breath" where the unintended consequences of his opinion becomes more obvious each day. Alito, like our American Catholic hierarchs, tries to cloth himself in the 1st Amendment mantle. Any American who reads knows that the our rights embedded in the Constitution are limited rights - not absolute. [Poor dear, Alito didn't hear those kind of things when he was hanging-out at Princeton with his racist and misogynist fellow conservatives.]
Ginsburg understands well the delicate balance of the US Constitution. We also have the 14th Amendment that mandates "due process" and "equal protection under the law" - something that seems to escape the Catholic Five on SCOTUS. Alito and his Catholic buddies on SCOTUS have put us in a mess. But we will work things out in the long run.
All that Alito has done is hand the Democrats the perfect issue to excite their base voters in advance of the mid-term elections - besides, I don't buy the meme that Democrats are in such a pickle because the election fundamentals still favor them. The immigration issue alone is worth a few nails for the Republicans coffin - Latinos are learning how to register and vote.
I would wager that if - admittedly a big IF - a miracle occurs and the Democrats gain control of the Congress, watch for a move to add a couple of seats to SCOTUS in order to make the Five Catholic Supremes a permanent minority. [Can't wait for California's Attorney General Kamala Harris - UC Berkeley's Bolt Law School grad and product of Berkeley High School - to intellectually batter Clarence Thomas repeatedly around the legal head and shoulders.]
I think Hilary just popped a few champagne corks in Chappaqua.
Here is what I take to be the heart of Douthat's argument:
Insist that for legal purposes there's no such thing as a religiously motivated business, and you will get fewer religiously motivated business owners — and more chain stores that happily cover Plan B but pay significantly lower wages. Pressure religious hospitals to perform abortions or sex-reassignment surgery (or some eugenic breakthrough, down the road), and you'll eventually get fewer religious hospitals — and probably less charity care and a more zealous focus on the bottom line. Tell religious charities they have legal rights only insofar as they serve their co-religionists, and you'll see the scope of their endeavors contract.
This is one range of possible outcomes, and with Douthat (and, I think, Margaret), I would mourn it.. Another set of possibilities - and one that, arguably, we see happening with the contraception mandate - is that these religiously motivated organizations, in order to survive, divorce themselves from their religious roots. That is another outcome I'd mourn.
If HHS just broadened Obamacare's religious exemption, the lawsuits from Notre Dame, the Little Sisters et al presumably would go away. The entire Accommodation mess could have been avoided. It's a bit puzzling why the Obama Administration hasn't shown any interest in doing so.
Ms. Steinfels - what Andy said.
Douthat cites some business practices of the Greens that he says are religious based and create the common good - $15 per hour, closed on Sundays, 10% giving. Facts - other businesses also act in this way without the *cultic* behaviors of the Greens e.g. Chick-fil-A; Costco comes to mind immediately.
Lots of research and paper have been spent on looking at the Greens and the points that Douthat states:
- closed on Sunday.........does this really have anything to do with Christian common good? Folks work at all kinds of hours, days, etc. The majority of large corporations do not require their employees to work on *week-ends* - does that make them Christian?
- 10% giving - research who they give to......Gothard, cultic extremes, etc. http://www.motherjones.com/politics/2014/07/hobby-lobby-bill-gothard-institute-basic-life-principles
So, why would *liberals* be defensive about the Greens, SCOTUS decision, and Douthat's take:
- let's start with a basic disconnect....the Greens want an *accomodation* for their religious beliefs (and, of course, their religious belief means denying *religious freedom* to many of their employees (why does there religious freedom trump others' religious freedom? Appears that the accomodation language only works one way)
- their religious freedom (certain contraceptives) rejects scientific understanding, is bad medicine, supports and outdated, narrow interpretation based on their *imagined* biblical principles. In addition, their religious freedom is bad social policy; is a form of what I would call is *social do-nothingism*.
- their religious freedom continues a form of medical insurance that is unbalanced; ignores or rejects what we know today about reproduction; treats women as less than men in terms of choices, costs, control, etc. (a hidden form of misogyny)
Can't wait for the first example of a *corporation* filing to adopt a child or requesting a marriage license? (well, they are a *person*) Talk about a slippery slope - from Citizens United, to Hobby Lobby, and now Wheaton College. You ask - why fear the accomodation approach? Well, Mr. Douthat - on the surface, it does appear that we could just let bygones be bygones....but, predict that this will devolve into all sorts of by religious freedom is more important than your religious freedom e.g. rights of gays (someone will file suit that they have the religious freedom to deny service to gays because homosexuality is not part of their biblical principles; etc., etc.)
We used to try to separate church and state (businesses being a part of state). What Douthat misses is that not-for-profit charities, social agencies, etc. have a mission to serve the needy, injured, poor, etc. (not to enshrine their religious, evangelical, or cultic behaviors and force those on others). This is one step removed from demanding that to receive charity - one must become the religion of the charity.
I did a "close reading" of Douthat's piece and gave up in frustration. I'm usually very open to his ideas, but in this essay, he's essentially ramping up the culture wars rhetoric while cautioning liberals to ramp it down. Ah, well, he's just a boy yet.
Sticking point for me: Douthat's evidence that Hobby Lobby is a "good" company because it pays full-timers $15 an hour to start lacks one vital statistic; what percentage of its workforce is full-time? My cousin is a full-time exec for Walmart and makes a very good living. Because they don't pay the workers in her stores squat.
Ann Olivier,
We have a right to crazy beliefs, but not a right to get our way just because we claim a religious objection. In this case, the nature of why Hobby Lobby finds a particular set of contraceptives to be immoral should be irrelevant. The relevant question is whether requiring coverage of these contraceptives is an unconstitutional burden. I would say no because the insurance, like wages, belongs to the employees. As soon as the money for the insurance leaves the company's accounts, they lose the right to control how it is used. If they believe that they still have a moral responsibility for how the money is used, their options are: 1) attempt to persuade their employees not to use it in ways they object to, 2) structure their business in ways that reduces their perceived culpability even if it increases their costs, and 3) lobby the government to change the law to make the costs of structuring their business are reduced.
"he's essentially ramping up the culture wars rhetoric while cautioning liberals to ramp it down"
Ross Douthat misses a lot in his column. First off, the idea that we should celebrate Hobby Lobby because it is a business with a heart or conscience. Depending on the good intentions of wealthy individuals (oligarchs) is not how most people want to live their lives.
The liberal answer to any employer that fails to pay a living wage is to adjust the minimum wage, not eradicate big box stores in the hope that smaller establishments will quixotically and against their own interests agree to pay higher wages. If MOS and others find the notion of a minimum wage to be a sign of liberal overreaching maybe they should say so. Oops, that's right, I just read in this very space that, rather than being ungodly, it was actually a very Catholic thing to do.
In any event, the decision to pay this or that kind of wage is well within the normal spectrum of business strategy. You start and run the business, these are the kinds of decisions workers expect to encounter. Hobby Lobby may have determined, as other businesses like Ikea and Costco and Nordstroms have, that it makes good business sense to pay workers even more than the law requires.
But to allow wealthy people to "push down" their idiosyncratic or just particular views on totally non-work related issues, is the flip side of this principal. You WORK for a living partly so that you can't be told what to do when the work day is over. And no, I do not see any limiting principle to what the Supreme Court decided, other than their own religious sensibilities. This decision, even worse than Yoder v. Wisconsin, but along the same lines -- merely finds a law inapplicable to objectors that the court (or some of the court) sympathized with.
At least, with Yoder, they were dealing with the views of parents as applied to their children, not business owners trying to limit in whatever way possible the personal choices of their employees. The day I can sue the owners of Hobby Lobby PERSONALLY when I slip and fall in one of their stores is the day that anyone should take seriously the claims of any entity that operates as a "person" only via legal fiction to be "infused" with the religious views of their owners. The parents in Yoder had full responsibility for their child. Hobby Lobby picks and chooses how much it will protect the welfare of their employees. Does this difference really escape you?
And yes, the fight over the form takes a view of women and their bodily functions and reproductive rights that is almost like a form of purdah, a business so dirty and horrifying that even filling out a form to tell your plan administrator that you don't want to offer contraception is an affront to your conscience. This starts to make Christianity and Catholicism look as if they are not much more than a fertility cult.
To not look at this case through the lens of Citizen United is to miss a major part of liberal angst. ...The for-profit corporate status of the company is essential to understand what's going on, and Douthat utterly elides it by saying, essentially, "But they're a really nice for-profit company!"
Andy - I have to say, I'm not following you on this. Why does it matter to a liberal that Hobby Lobby is a for-profit company? Are you saying that if it were a not-for-profit, liberals wouldn't care nearly as much? Why does it matter that Hobby Lobby was organized to make profits for its owners, and what does that have to do with subsidizing contraception for employees?
For those who want a historical rundown on the protection of conscientious objectors to a variety of laws, this is a pretty nice summary, though it does not appear to have been updated beyond 2005 or so.
If sincerely held religious beliefs result in negative consequences to those who do not hold those beliefs, then the common good should trump the ability of these beliefs to be exercised over others.
Sincerely held does not equate with the ability of the minority (or the majority) to hold sway. Slavery and anti-miscegenation laws were undoubtledly the result of sincerely held beliefs, religious or otherwise.
Why does it matter to a liberal that Hobby Lobby is a for-profit company?
I don't speak for all liberals, but the fact that Hobby Lobby is a for-profit company does make a difference to me (though I think the "closely held" nature of the company also makes a difference; I'm still making up my mind ...).
However, the company's reason for existence is to make money by selling craft supplies. It is not a church nor does it perform the charitable functions associated with a religious organization, nor does it qualify for non-profit status, subject to IRS oversight to ensure it fulfills its 501c3 or similar obligations.
Just for fun, I looked up Hobby Lobby's mission statement on its Web site, and I see nothing that would qualify it for religious exemptions. The references to "bliblical principles" is incredibly vague and could cover anything from being closed on Sundays to banning shell-fish at company parties.
At Hobby Lobby, we value our customers and employees and are committed to:
- Honoring the Lord in all we do by operating the company in a manner consistent with biblical principles.
- Offering our customers exceptional selection and value in the crafts and home decor market.
- Serving our employees and their families by establishing a work environment and company policies that build character, strengthen individuals and nurture families.
- Providing a return on the owner's investment, sharing the Lord's blessings with our employees, and investing in our community.
I was thinking some more about Douthat while waiting for the chance to entertain my primary doctor this morning, and I thought this: His major premise is wrong. Liberals I knew never wanted companies to be more moral. They wanted companies to be good neighbors, to respect all of the people we used to call (in Ike's days, since Douthat pretends to remember) stakeholders -- customers, employees, suppliers, neighbors, stockholders. Liberals didn't want companies to gouge customers or decamp leaving a dirty old factory for its neighbors to clean up. And the funny thing is, businesses, by and large, shared that view. But the view was not a moral view. It was a neighborliness view -- its inspiration came from the Kiwanis and the Rotary, not the Bible -- and was enforced among the bad apples by the force of law.
It was later, about the time liberals became irrelevant and unions started being squeezed out, that companies began to claim their responsibilities begin and end with the stockholders and everyone else -- customers, employees, neighbrs, suppliers -- can go to blazes, or Texas whichever they prefer.
That is a straw liberal he is attacking. And his closing wail on behalf of diversity is hogwash.
Basically what Jean said. I also think that the "closely-held" could make a difference, but I'm not sure what the difference is between that and publically traded are in principle. Practically, of course, the odds of a publically traded company having religious views would be slight, because--I guess--all shareholders would have to vote or something. But if they were to do so, I'm not sure what principled difference there would be between that and a closely-held one.
Non-profit, religious groups incorporate in order to further religious ends: caring for the poor and oppressed, feeding the hungry, etc. For-profits incorporate for exactly that reason: to make profits. Now, perhaps there is an argument that making money is a religious task. I would have some rather strong difficulities with such an argument, but either way, I haven't yet heard it. That those profits may be used for good ends is great, but ultimately beside the point. If Hobby Lobby decided to start paying only minimum wage, stop tithing, etc., that would not change their legal status a whit. If a non-profit decided to, for example, stop serving the poor and get into making money for its own sake, that would require a legal change. They are just different types of groups, which is precisely why they are treated differently in the tax code and in corporate law.
There is absolutely no meaningful distinction for a c corporation that transcends tax or corporate laws. A c corporation is still a business corporation, but there is a limit on the number of shareholders (without looking it up, I think the number is 35 but it might have changed). I believe that Congress created it as a category (it's not a creature of most state laws but of taxation) for purposes of taxation. Not being a tax lawyer, I don't remember all the differences, but it has some typical features of partnership taxation but is definitely a business corporation with limited liability for the owners that is the essential hallmark of ALL corporations.
An "s" corporation is not closely held; there is no limit on the number of shareholders.
A publicly traded corporation is listed on an exchange -- anyone can buy shares. That's what it means to be publicly traded.
Every characteristic of these entities is created by state and federal law -- corporate law, tax law, and securities law.
Congress can decide tomorrow to eliminate the category known as a c corporation for federal tax purposes. Then the owners of Hobby Lobby would be faced with whether they should be an LLC or a partnership or just a plain old s corporation.
'If sincerely held religious beliefs result in negative consequences to those who do not hold those beliefs, then the common good should trump the ability ocf these beliefs to be exercised over others."
Jim McC. --
Nobody said otherwise. What the decision assumes is that the common good is best served by 1) providing the contraceptives to the employees and 2) accomodating Hobby Lobby. It avoids an either/or decision by providing a both/and one.
Yes, that business about not filling out a form is nonsense.
Barbara's argument is strong. And let me recommend Justice Sotomayer's dissent concerning Wheaton College's petition for injunctive relief. It does seem that the Roberts Court is drifting into legislating.
Why do our employers have any thing to do with our health care anyway. Single payer is the answer to this and lots of our other health care conundrums.
Thanks for the thoughtful post.
Single payer was the answer. The Republicans said no. The Democrats were afraid it would fail of passage.
Instead, are we likely to see the end to employer-provided health insurance? If so, everyone can go directly to a government web site (Feds or State), sign up, and the insurance companies can provide whatever they'll provide.
Jean and Andy, thanks for responding. Jean, you wrote this:
the company's reason for existence is to make money by selling craft supplies
... and then, to your credit, you searched out the company's mission statement, which had four different bullets, and a number of different ideas within those four bullets. One of the bullets, to be sure, included, "Providing a return on the owner's investment", which I take to be more or less the same as "to make money by selling craft supplies". Yet that same phrase in their mission was balanced by a mission to two other stakeholders: "Sharing the Lord's blessings with our employees", and "investing in our community"
Other key ideas in the company's mission would seeem to include honoring the Lord, pleasing its customers and servinng its employees and their families.
Do we believe Hobbly Lobby's mission statement? Maybe one of the questions on the table is, Do we take the Greens at their word? If you take the cynical point of view that mission statements aren't worth the electricity needed to light up the pixels that display them on a computer screen, I can only say that you wouldn't be the only cynics I've met :-). But if we do take the Greens at their word, that they meant every word of their mission statement - that at the very least their mission statement is their vision for what their company *should* be, and this is what they *try* to accomplish (even when it doesn't succeed), then the mission of their company encompasses a good deal more than simply "to make money by selling crafts".
I commented about this in another recent thread, in a conversation I had with Bernard: people start up companies for all sorts of reasons. Usually, among them is to make money. But there can be other reasons, too. I'm sure Jobs and Wozniak started Apple because they wanted to create cool technology - and, presumably, make a lot of money. The Greens, working from a foundation of (apparently) sincere religious beliefs, proclaim a mission to the world to honor God, serve their employees, delight their customers - and make money.
To cast this in religious terms, the Greens seem to see running this business as their vocation. It wouldn't surprise me in the least to learn that they see themselves as serving God and their fellow humans by running this large and successful company. Some of us are called to teach, some of us are called to be nurses, and some of us are called to run companies. Some people (I've known a number of them) believe that God is calling them to improve the world by running a not-for-profit, charitable endeavor - feeding the hungry, raising money for Multiple Sclerosis research, and so on. And some other people (I've known some of them, too) believe that God is calling them to start and own a business, and that they can make the world a little better that way.
There are all sorts of people who dishonor their vocations, by ignoring their call to do what they should be doing, or (what may be more common) by living out vocations in ways that are unworthy. From what I've seen, the Greens at least seem to take their vocation seriously. I do think the world would be considerably better off if more business owners were like them.
If the Democrats ever get their acts together and regain control of the House and ultimately the Senate, I think single payer will become the law of the land.
What we are seeing now is a good reason FOR that to happen. All of their exceptions for wounded religious sensibilities are the proof that the ACA is nothing more than a horse designed by a committee ... a camel.
Maybe this was necessary to happen for the good to overcome the mistakes of the "wise."
Jim P.: There are many companies who adopt similar mission statements, such as, adhering to ecologically sustainable principles, fair trade, humane employment policies, giving back a share of their revenue to various causes and so on. Tom's, the shoe company, gives a pair of shoes away to various groups for every shoe it sells. Many companies use the pink ribbon symbol so you can know that if you buy a given product, a donation will be made to the SGK Foundation. This is not new, it is not unique, it is not even special. Hobbyists (scrapbooking, quilting, cake decorating) are probably drawn disproportionately from demographic groups that appreciate the appeal to very general (notice they are indeed VERY GENERAL) "biblical principles" the same way Starbuck's customers are drawn from a demographic that appreciates fair trade, and Dannon's customers are drawn to a company that contributes to women's health related charities. For the same reason Avon runs the Avon Foundation, which is the other major breast cancer charity. There are actually now consultants that work with companies to adopt and engage in such mission related marketing -- The makers of Tide, for instance, go around the country after disasters with semis that have mobile washing machine facilities so that people who have been forced to leave their houses have access to clean clothes. See the tie in?
In the law of tax exemption, you must not only have a mission, you must run your enterprise according to specific governance principles. These include no distribution of earnings -- which must be used solely to further your exempt status, and a variety of other principles. Importantly, if you engage in typically profit making activities as part of your enterprise, you will be taxed on the earnings of that activity -- "unrelated business income tax," or UBIT.
The point is, anyone can say anything about their own "mission," in business. It's just a form of marketing, and the notion that it would be given the same deference that we might give to things like an individual's reluctance to work on the sabbath or refusal to shed religious headgear or any number of other things, is kind of crazy. Yes, sorry, it's crazy.
Do we believe Hobbly Lobby's mission statement? Maybe one of the questions on the table is, Do we take the Greens at their word?
I take the Greens at their word. And, if they share their wealth generously with their employees and contribute to their community, more power to them. They will certainly get jewels in their heavenly crowns.
But they are not a charity or a church, however much they might be motivated by sincere religious belief, and my sense is to proceed with extreme caution about "rewarding" Christian ideals with federal regulatory exemptions.
This probably isn't the greatest analogy, and I'm sure Barbara can best articulate why not, but I say a Hail Mary before every class period. I try to treat my students as the children of God that they are. But last time I looked, that didn't give me any special exemptions under the law. Not even if I advertise my piety (such as it is) on my "faculty information" page at the college.
Ooops, I see Barbara got in here before me. Trying to participate in discussions about Great Issues of Our Day at the same time you're supervising your kid's pruning activities in the back yard with the mega loppers ...
The point is that we can't challenge someone's sincerity -- not anyone's -- and it is incredibly problematic to turn federal courts into a forum for determining whether your religious beliefs are genuinely held. Previous Supreme Court precedent understood that. So here are some distinctions worth considering:
1. In the Lee case, the employer objected to Social Security (he was a sole proprietor) on the grounds that the Amish take care of their own. The court refused to infer an exemption that would have the effect of depriving a person's employees from being able to get Social Security benefits (as this person's desired outcome would have). So, the principle is: it's one thing to profess sincere religious beliefs that would penalize yourself financially, but we must be very skeptical where those beliefs would mainly penalize other people, in the Lee case, as in Hobby Lobby, the employees.
2. Maybe I work at XYZ Charity because they hired me, not because I agree with their principles. But the fact that XYZ Charity runs itself scrupulously so that all of its assets, and all of my work related activities, further its mission is what matters. So, the principle is, by judging organizations based on their adherence to tax exemption principles, that is, whether they are truly run to further their mission, we don't have to care about -- much less test -- people's motives, except in very rare circumstances.
No one can actually force HL to further its mission, which means, essentially, that its claims are incredibly cheap. Indeed "nonadherence" in this case is financially beneficial as it would have been for Lee in the Social Security case. The fact that it was a corporation is more than icing on the top, because it really subverts a large part of the jurisprudence on corporations, but this case would be problematic even if the Greens were sole proprietors or a partnership. I hope the next time someone gets injured at Hobby Lobby they sue the Green's personally and use their statements in this case to prove that the company is their alter ego.
The point is, anyone can say anything about their own "mission," in business. It's just a form of marketing
Ok, Barbara, we'll put you down as one of the cynics. But I disagree that a mission is "just marketing" in every case. (Actually, I disagree that marketing is "just marketing", if by that you mean it is all an exercise in BS). In the Greens' case, the very general statement in their mission statement that they are committed to serving the Lord is expressed in some pretty specific biblically-driven policies such as paying fair wages and honoring the sabbath that are contrary to maximizing their profit. The Greens seem to be trying to balance several outcomes.
If Starbucks has figured out a way to profit by targeting consumers who find fair trade worth supporting - then that sounds to me like an admirable business model. If Hobby Lobby is profitable by selling yarn to church ladies, while treating its employees better than most retailers, then I say - hurrah for everyone involved.
Dannon, Starbucks, Tide - these brands are all owned by huge publicly traded corporations. None of those companies, to the best of my knowledge, makes a religious-belief claim, and because they are publicly traded and have diluted ownership, none of them are eligible for special treatment under RFRA. Toms (of which I had never heard before - thanks for bringing it to my attention) seems a lot more like Hobby Lobby. I don't think Toms makes a religious-ownership claim, but it's owner's commitment to shodding the poor seems pretty sincere. The IRS may categorize Hobby Lobby and Toms the same as it categorizes Procter & Gamble and Starbucks for tax purposes, but tax categorization doesn't tell us everything important there is to know about a company. There are some not-for-profits that are also chiselers.
Jim, you avoided the main issue. And that is, you simply cannot know how sincere people are, and the corporate form, and tax exemption all exist for a reason.
This is like the Yoder case, and Justice Douglas' dissent in that case has always struck me as wise: the Court decided as it did because it trusted Amish parents, not because it actually thought that the law in question was overly burdensome. The Move group, for instance, however religiously motivated, would never have received that kind of deference. This puts the USG in the position of deeming some religious beliefs worthy and others not, unless you want to take the position that any religious claim trumps any law.
Jim, sure sounds like Hobby Lobby is a business model that should be promoted. My guess is that it is rewarded (in addition to whatever heavenly treasure the Green's are earning Upstairs) with tax credits for their charitable contributions.
Moreover, I have no beef with capitalistic money-making entities. We all gotta eat, and working for The Man is pretty much the only alternative (unless you ARE The Man) is the only practical alternative in our culture.
However, I'm not comfy with the idea that entities that do not primarily exist to promulgate their faith through mission activities should receive the same exemptions ... even if those corporations are owned by a very small group of like-minded individuals. If Hobby Lobby gets to opt out of providing contraception because the owners believe it's a sin, then why can't Jean's Java Joint opt out of providing maternity coverage for employees who have more than one child because Jean believes overpopulation is a sin?
Jim, you avoided the main issue. And that is, you simply cannot know how sincere people are, and the corporate form, and tax exemption all exist for a reason.
Barbara, so sorry if I seem even thicker than usual, but I really am flummoxed. If I missed the main issue ... it's because I think I'm still missing the main issue. Clearly, a number of folks here think this combination of (in)sincerity, limited liability and tax exemption all add up to something that makes religious freedom for ownership a bridge too far, but for the life of me, I don't see the connections.
JP - try reading this from a former SJ provincial:
Key points:
"......organizations—governments, corporations, etc.—exist as means to the end of human flourishing, without intrinsic value. To ascribe to a corporation the basic rights of a human being, therefore, is not just mistake, but a type of idolatry: putting a fiction of our own making on an equal status with a human being whose end is ordered by God; and then giving that fictional entity the authority to make moral decisions on behalf of natural persons. Though certainly not the intent of the Court, we do well to ask ourselves if the ultimate effect of decisions such as Hobby Lobby and Citizens United is to do more than grant disproportionate rights to the owners of corporations, but also to eradicate the distinction which raises the human person above a merely legal creation."
If Hobby Lobby gets to opt out of providing contraception because the owners believe it's a sin, then why can't Jean's Java Joint opt out of providing maternity coverage for employees who have more than one child because Jean believes overpopulation is a sin?
I guess you could try, if you claimed that your view is religiously grounded. Not that I'm a lawyer, but I believe that the courts would attempt to balance your beliefs against the government's claim that it has a compelling interest in ensuring that employees have decent maternity coverage. My guess is that the government would prevail in that one.
Bill, thanks, that is an interesting article. I have to say, though, that the two cases at hand, the Hobby Lobby case and the Citizens United case, don't seem to illustrate his concern very well. I don't see that anyone has a "natural right" to free birth control that requires that religious liberty be curtailed. Nor do I see that any natural rights are being curtailed by permitting corporations to make political donations.
It might help the author if he understands that ultimately it is not Hobby Lobby's beliefs that are being protected; it is the Greens' beliefs. If the Greens change their beliefs, or if they sell Hobby Lobby to Target Corp, then presumably Hobby Lobby's policies will change to reflect the beliefs and principles of its owners. Thus, Fr. Whitney needs to consider whether the Greens have a natural right to religious liberty that extends into the public marketplace, and whether the government has a compelling reason to override that natural right in order to protect conflicting natural rights.
Jim Pauwels,
How would the Greens' religious liberty be curtailed? A person does not have a natural right to enter into whatever contracts that they wish. The government has the power to regulate our commerce, including employment contracts. A group claiming a religious belief does not take away that power even if the belief is sincerely held.
The proper forum for weighing their claim of religious burden is the political process. This is what the Amish ended up doing with Social Security. The political process has the advantage of allowing for a negotiation where the majority and minority work together to find a way that allows the majority to acheive their goals in a way that minimizing the impact on the minority. It is also better at weighing both the sincerity of the claim and the magnitude of the burden.
Once again, it's necessary to point out that some women take the birth-control pill for reasons other than to avoid pregnancy. When Sandra Fluke testified before Congress, she was not speaking on her own behalf, but rather on behalf of a friend who was taking the pill to stem the growth of an ovarian cyst. The pill was cheaper than surgery to remove the cyst--that is, it was until the pill was no longer covered by the friend's insurance.
Medical decisions should be made solely by patients and their doctors.
Tangent: If you think Hobby Lobby is a rough case, just wait until the recent Louisiana Supreme Court decision hits the media. A Baton Rouge priest has refused to break the seal of Confession about a child who confessed to him. She has spoken out about it, so she has lost her right to confidentiality. Looks like a really messy case. Looks like this one will go to the U.S.Supreme Court too. I just hope the bishops don't go hysterical about it. That never helps.
No doubt we'll have later thread on it.
"It might help the author if he understands that ultimately it is not Hobby Lobby's beliefs that are being protected; it is the Greens' beliefs."
This may in fact be the crux of the issue. I, and many liberals, hope very much that the Greens' beliefs are protected. But Hobby Lobby does not equal the Greens. The only purpose of having a corporation is to protect those who create it from liability. That is to say, the state and society are telling these people that they have certain responsibilities lifted from them. As Barbara pointed out, if I want to sue Hobby Lobby, the Greens' personally are insulated. I can go after the company's coffers, but I can't go after theirs (at least not directly).
What the Greens want is to have it both ways. They want to be exempt from certain responsibilities that all of us, as citizens, have, but they don't want any corresponding rights claims to be abrogated with it. They want to keep all the "good stuff" and be able to hand over some of the "bad." They want to be insulated from lawsuits and prosecution like a corporation, but they want to have other rights that--until last Monday--were for "walking around people" only. It is exactly that the Greens' rights were never at stake in this--the case title had Hobby Lobby in it, not the Greens--but a fictitous person the Greens invented for their own benefit. It is the muddy distinction between the two on matters of the "rights" of the corporation that alarms many. As I said above, I do think there's a difference when these things happen to further a specifically religious goal or build up the common good. All the good intentions and good actions by the Greens--and I do not question their sincerity--do not change the fact that the corporate structure they chose to enter into has one primary legal purpose, which is not a religious one: to make money. For you can rest assured, the distinction between the Greens and Hobby Lobby would be mentioned very quickly by them should someone try to sue them directly, rather than the shield corporation, for something.
If Hobby Lobby went bankrupt the Greens would willingly pay lawyers hundreds of thousands of dollars to avoid having its creditors go after them personally to satisfy its unpaid debts. That's the "benefit" of the corporate form.
This is not an untested area of corporate law. Many people try to pierce the corporate veil, to show that a corporations was not actually separate from the owners who looted it or ran its affairs to the detriment of creditors or other investors. The Greens are now arguing that Hobby Lobby, for this one limited purpose, is their alter ego, while still prsumably claiming full legal protection for their assets. But corporate law does not work that way, and really, other closely held corporations might be as alarmed at the implications of this suit as anyone else is.
Barbara raises another question for me to Jim's point about this being about the Greens' beliefs, not those of Hobby Lobby. I presume that the money to pay for the case came out of Hobby Lobby coffers, not the Greens. If what Jim says is true, this doesn't seem like a correct allocation of funds, unless there is really no corporate veil in the first place.
Interesting survey results from GlassDoor.
Over 300 employees at each company were polled across hundreds of employers in the US on a five point scale - 5 being very satisfied.
Some results:
- Hobby Lobby had a 2.4 average score (below the US average and well below Costco's 4.2)
- Negatives - employ large number of part time workers who are paid much less than the stated $15 an hour minimum
- Poor customer service - it is not a focus
- Employees are not supported in terms of career goals
- Company is not very flexible when family emergencies happen
Couple this with the already stated and linked to research and investigations that underline:
- Hobby Lobby's 401K plan is invested heavily in the very pharma companies that make and sell Ella, IUDs, etc.
- Until 2012 Hobby Lobby covered these very contraceptives
- 10% charitable giving - the information about the millions of charitable giving to Gothard's cultic Life Institute
- Sundays closed......sounds great unless you are a part time worker and lose Sunday as a paid work day and thus have your work hours cut back (wonder if anyone has investigated how many of the part time workers are minimum wage, only job, and living on food stamps/rent subsidies; how many are single moms; etc.)
Question for the legal beagles: Before the decision came down, much was made of the kind of coporate law under which Hobby Lobby was organized: family-owned, closely held, not traded, etc. I detect in the legal comments a sense that that has no bearing on the decision--at least in your opinions. Yes? No? Explain
Bill de Hass, thanks for looking up the info. GlassDoor.com info has to be taken with a grain of salt; often it's the folks with axes to grind who post over there. But I remain concerned about companies that claim to provide good wages and benefits for their full-time employees, who represent a very small percentage of their total workforce and then screw part-time workers.
Margaret: Here is a reasonable explanation of some of the issues. http://online.wsj.com/articles/hobby-lobby-ruling-begs-question-what-doe...
However, it's important to understand that "closely held" is an IRS designation; most corporations that claim it are regular business corporations under state law -- as are non-closely held corporations. In deciding this case, it's like the Supreme Court forgot everything they learned in business associations class during law school.
My biggest issue is, as I read the decision, there is nothing in principle that holds these kinds of findings to a closely-held corporation. In this case, Hobby Lobby is one, and thus it applies to these. Yet why it should be limited to these only is not discussed in the decision. And since this Court seems to enjoy expanding the rights of corporations, there is no reason why I believe that it would stay so limited, other than the practical matter of figuring out how larger corporations could even make the claim in the first place. Yet, if they could figure out a way, nothing about the current Court majority makes me think that the distinction between closely-held and not would hold for long.
I'm not quite sure why people want to take away the Greens right to run their business in what they believe is a moral manner simply because it is incorporated. Yes, that limits their personal liability should the company fail, but it protects any number of other activities that they might be involved with as well. For example, if they owned two unincorporated businesses, the failure of one could drag down the other as well, affecting all the stakeholders in the second company as well. But would you please explain why the Greens cannot bring their religious interests into the marketplace? If I'm not mistaken, there are any number of encyclicals which require just that. Do these only apply to sole proprieters, partners, employees and customers but not corporate shareholders?
Bruce, they should not apply there either, but it is particularly crazy to apply them to corporations, because it is simply bedrock law that a corporation IS NOT THE SAME THING as its owners. A "share" is a unit of business held by a person; it is not the shareholder itself or herself. It's separate, distinct. That's why people invest in corporations, to create something that is not them so that when it fails they don't lose their own personal assets, savings, house, retirement plan, etc. To pick and choose when you are the corporation brings a level of unpredictability into this equation that business owners normally hate. It can be used against them as well as by them.
So while the Greens, as owners can control the business, the business itself is distinct from the Greens in terms of its own status as a legal entity that has to comply with laws. Controlling something isn't the same thing as being something.
Andy and Barbara, thanks - I think I understand the argument now: if the Greens can create this separate corporate construct to shield them from liability, then shouldn't the same construct create a degree of separation between their personal religious beliefs and the corporation's employee benefits? Did I state that correctly?
By the same token, I suppose we could ask, should the same corporate construct prevent an owner from extracting profits (dividends) that were earned, not by the owners, but by the corporation?
Yes, you stated it correctly. The corporation does get the earnings. Closely held corporations are different from other business corporations in that the earnings are attributed to the owners, whose tax liability includes the earnings they take from the corporation. They are business corporations just like others, but their tax status has some features of partnership taxation. Please don't make me pass an exam on this. The point is, "closely held" is mostly a tax status, with other features of corporate law being the same.
How would the Greens' religious liberty be curtailed? A person does not have a natural right to enter into whatever contracts that they wish. The government has the power to regulate our commerce, including employment contracts. A group claiming a religious belief does not take away that power even if the belief is sincerely held. The proper forum for weighing their claim of religious burden is the political process.
Ryan - the Greens' religious liberty was curtailed precisely as they described it. And apparently the Supreme Court agreed.
In a sense, their claims were weighed already via the political process when RFRA was passed and signed into law. Then, under Obamacare (also passed and signed into law), the executive branch issued regulations that seemed to conflict with the Greens' rights preserved under RFRA. The Court sided with the Greens.
Jim P. I was hoping that by now you would see that the Greens' religious liberty is not involved at all. The Supreme Court was ruling on Hobby Lobby's religious liberty. (At least the majority was; the dissenters may have been making you error.) If the Greens had their stock in General Motors, instead of Hobby Lobby, they would be denied their religious rights -- in your construct -- just as all stockholders in non-closely held corporations are.
The court pitted the religious liberty of a closely held corporation against the civil rights of its employees to get what the employees consider health care coverage in the same way that most Americans are going to get it. The court found in favor of the corporation. Some of us liberals and non-liberals find that jaw-dropping. But we have been getting over it since we found out that corporations have voting rights that we natural human beings don't share.
Look, the main problem here is the inability to understand one thing, and that is, a corporation is a creature of statutes. It's not a person and so it should not have personal rights. The Supreme Court actually got this right in a case involving an assertion by a large corporation that it had a right of privacy under FOIA, distinct from proprietary trade secrets. Congress (or states) could extinguish the existence of all corporations tomorrow if they felt like it. The owners of those entities might have some rights but the entities themselves?
The harder cases are agglomerations (associations) of people into entities that are a reflection of their own religious identity, and the way we know that is that they are not run for the profit of their "owners." We might be able to live under a different construction but that's the one we have created for ourselves, until this decision.
An article by Posner in Slate makes the case well. I agree with the author that Alito, no question, has a stronger argument than Ginsberg.
Justice Ruth Bader Ginsburg, writing in dissent, says that corporations don't "exercise" religion. Alito makes the better argument. Once Ginsburg says that "the exercise of religion is characteristic of natural persons, not artificial legal entities," she gives away the game. A church is an artificial legal entity.
Isn't he correct. Theological glosses aside, isn't that exactly what a church is? An artifical legal entity?
Second, does the feds' contraception mandate substantially burden Hobby Lobby? This is the most important part of the case. Alito interprets RFRA to impose what lawyers call "strict scrutiny," meaning that a statute or regulation survives RFRA only if the government can show that its interest is "compelling" and the statute or regulation "is the least restrictive means of furthering that compelling governmental interest." Lawyers know that strict scrutiny tolls the bell of doom for the government. Hardly anything survives strict scrutiny. Once Alito takes this step, the outcome is predictable. He doesn't even consider whether the interest in ensuring insurance coverage of the four contraceptives is compelling because there are obviously alternatives that would not burden Hobby Lobby.
And he is correct on that point as well. Obviously the government could have come up with alternatives. Funding it directly through taxation is an obvious one. How is it the court's problem that congress cannot agree? They agreed 97-3 on the RFRA. So, live with it!
Tom - if the Greens' religious principles aren't transferrable to the corporation in some way, shape or form, then I'm flummoxed again. To say that a corporation has principles apart from its directors or owners is like saying that a tin can has principles.
Barbara, I get that Hobby Lobby is not a person, and that the Greens and Hobby Lobby are two different legal entities.
But, just playing Devil's Advocate here, doesn't the fact that such a thing as a "closely held company" was invented in the first place speak to the notion that some owners are less extricably linked to the companies than others?
And isn't that the thinking in the majority opinion: Force Hobby Lobby to pay for contraception and you're essentially making the Greens, who control all the company's assets, pay for it. It's their company, ergo their money, not the money of thousands of stockholders and board members?
I understand the distinction between the Greens being forced to pay for contraception insurance out of their own salaries from the business vs. the business being liable, as a non-religious entity, for following federal mandates. But when the Greens own the whole she-bang, it's harder to say that the money doesn't come out of their pockets directly.
I guess the other side of the coin is that once the business exists, it doesn't matter if only one person takes money out of the business or several thousand do--if you're not affiliated with the mission of a religious organization, you have to follow the rules as they stand.
My understanding of that case is that the girl testified that she had gone to confession and that the church was saying that she had to keep the contents of her confession confidential. I think that this is incorrect. She is quite free ot disclose when and where she confessed.
the Church filed its motion in limine, seeking to prevent the plaintiffs from "mentioning, referencing, and/or introducing evidence at trial of any confessions that may or may not have taken place" between plaintiffs' minor child and the priest, while the priest was acting in his official capacity as a Diocesan priest and hearing confession from his parishioner. The trial court denied the motion, finding the testimony of the minor child regarding the confession was relevant and, certainly, as the holder of the privilege, she was entitled to waive it and testify. However, the trial court "did recognize the conundrum with which [the priest] is presented, and I know his solution to that is going to be that he is not going to say anything about any confession."
It sounds like he gave her some pretty poor advice (according to her testimony). This speaks, again, of the need for good, solid, pastoral training for priests...ugh....But the court is not suggesting that the priest break the seal. I think the finding is correct.
Look, the main problem here is the inability to understand one thing, and that is, a corporation is a creature of statutes. It's not a person and so it should not have personal rights.
Unfortunately, your view is not the law. Under the US Code, corporations are considered persons when that word is used in a law, as are a number of other legal entities. If the legislature wants to refer to human beings, then the term is a "natural person". So your argument is not with the adjucation of the law but with its legislative construction.
Jean, the problem I have is that "closely held' is a category created by Congress solely to ameliorate the tax burdens of the corporate form for businesses that would probably have been run more on the principles of partnership than of corporations, but want the limited liability (and some other advantages) of corporate form. So Congress created a mechanism to give these kinds of businesses that elect the status tax advantages (there are some disadvantages as well). There is, literally, no other distinction between this kind of business form and other corporations. None.
To the point being made above regarding Judge Posner, I don't believe that Congress is required to give a church that has employers an exemption. If Congress chooses to do that, for prudential reasons (not to put organizations on the spot) then I certainly don't think that, having given such an exemption, anyone who feels the same way as the church has a right to the same exemption, and certainly not for the corporation that they happen to own a majority of the shares in, and certainly not in areas where they are given substantial tax advantages, when they provide benefits according ot minimum standards. They want the tax advantages and the protection from liability but they want to take them on terms not available to the general public, and to the detriment of the people who were intended to be benefited by the provision of those tax advantages to begin with (their employees). And oh by the way, they save a pile of money for themselves, so that they can make even bigger investments in the pharmaceutical company that manufactures the IUD, no doubt.
The Greens had no objections to any form of contraception before the ACA was passed.
I guess the other side of the coin is that once the business exists, it doesn't matter if only one person takes money out of the business or several thousand do--if you're not affiliated with the mission of a religious organization, you have to follow the rules as they stand.
I think this argument misses the point that religious rights are among those considered unalienable. Even the Catholic Church recognizes that people have religious freedom as an unalienable right. As a result, the holder cannot give it away, nor can anyone (including a government) licitly take it away, either freely or by coercion.
Also, no institution can operate for long without the cash coming in exceeding the cash going out. Non-profit or charity doesnt imply that its revenues dont exceed expenses, but rather that the government has decided to tax the organization in a different manner. The reason for that tax treatment may be religious, but in many cases its not. So profit/non-profit doesnt capture any information about the religious principles which underly the operation of the business.
Bruce, they should not apply there either...
Barbara, This just creates a huge area of people's lives where they are free of any moral obligation: Its the corporation, I was just doing what it told me. While the corporate veil might be acceptable for the disposition of assets and liabilities, I dont think it works for moral claims.
Bruce, even non-profit corporations run as tax exempt entities have to obey the law unless someone gives it an exemption. Congress gives religious organizations exemptions from certain kinds of laws, like the ministerial exception under Title VII, to avoid excessive entanglement in religion, which would be a real constitutional problem. But the further you get away from laws that affect "how the church governs itself as a church" and start looking at the various ways in which the church structures activities that are run as businesses, like hospitals, the constitutional rationale for such exemptions becomes tenuous, and there is an argument that in some cases the "exemption" starts to look like a problem under the establishment clause. In any event, there is no rationale related to "excessive entanglement" when you aren't even dealing with an organization that is a church, like Hobby Lobby.
At the risk of enormous thread drift here....
Even the Catholic Church recognizes that people have religious freedom as an unalienable right
The Declaration on Religious Freedom (Dignitatis Humanae) certainly stated that, however, that was a departure (pace Ratzinger/Benedict XVI's hermeneutic of continuity) from traditional teaching.
Religious freedom, in turn, which men demand as necessary to fulfill their duty to worship God, has to do with immunity from coercion in civil society. Therefore it leaves untouched traditional Catholic doctrine on the moral duty of men and societies toward the true religion and toward the one Church of Christ.
"...if the Greens' religious principles aren't transferrable to the corporation in some way, shape or form, then I'm flummoxed again. To say that a corporation has principles apart from its directors or owners is like saying that a tin can has principle."
Jim, I don't want you to be flummoxed. I just want you to recognize that the case was "Burwell v. Hobby Lobby," not "Burwell v. the Greens." As I tried to point out, the Greens have absolutely no religious liberty rights they can assert on the basis of their ownership shares in any corporation but Hobby Lobby -- or Dell, if they should choose to buy out the principle owners of that. If the Greens took their Hobby Lobby investment to General Motors, their religious liberty rights based on investment would become exactly none.
The right resides in the corporation, not the persons. That is the court's position. If I were to buy out the Greens (so they could put their money in GM), I would personally gain no religious rights and the Greens would lose no religious rights. Those rights would remain with Hobby Lobby.
Maybe that wasn't clear enough. Let me try it this way. If the Greens were to shift their investment to GM, they would no longer have the religiuous right to decide thay what the FDA says is a contraceptive is, in fact, an abortifacient. And they would no longer have the religious right to tell their employees to buy their own pills. You and I, Jim, have religious rights now, but we do not have those religious rights. Those rights can be exercised only by closely held corporations. All persons are equal, but corporate persons are more equal than others.
I don't know how a tin can would get principles, but if Justice Alito and four peers find that tin cans have them, I guess that would settle it, whether or not you or I can understand how.
even non-profit corporations run as tax exempt entities have to obey the law unless someone gives it an exemption
Barbara, Thats the whole point. The RFRA did give the Greens and Hobby Lobby an exception. And Congress explicity considered whether it applied to corporations. See here
And to bring things back to the original point, I think that is what Ross Douthat is trying to say. Liberals (his term) like the way these people generally act but abhor giving an exception to the sacroscant contraception regulation (actually 4 allegedy abortifacient drugs). Be careful what you ask for because there maybe alot of unforseen negative ramifications.
Let me try it this way. If the Greens were to shift their investment to GM, they would no longer have the religiuous right to decide thay what the FDA says is a contraceptive is, in fact, an abortifacient.
Right. I think. Sorry - I can't tell if we're having a dispute about this or not. If the Greens buy a piddly $10 million or so in GM stock, then their personal religious views regarding morning-after pills is not transferrable to GM nor the benefits it offers its employees. On the other hand, if the Greens buy the whole dang company, lock, stock and barrel, then suddenly GM is "closely held" and presto! their views are transferrable to the company and its benefits packages. Whether or not we agree that this is consistent and fair, it is, as of last week, how the world works, at least in the US.
Someone mentioned that this could become an expansive right - expanding from "closely held" to other types of for-profit corporations. Thus, Carl Icahn goes out and buys 20% of GM's stock, which may be enough de facto for him to take control of the board of directors, which in turn gives him control over executive appointments and, if he is hands-on, its corporate policies. Then, all the tens of thousands of GM employees could be subject to the religious whims, if any, of Carl Icahn.
Bruce, until this week, the law never recognized a for-profit corporation as a religious institution.
The Greens can bring their religious beliefs into the marketplace. What I object to is the demand that their religious beliefs have the final say in how the marketplace operates.
Jim Pauwels,
I have difficulty imagining governing under the constraint of having to satisfy strict scrutiny the moment anyone raises a religious objection.
A corporation is a type of legal person. That is what allows it to own property and sign contracts on its own rather than just as an extension of its owners. However, that doesn't mean that it has the full range of rights that a human has.
George D,
Doesn't that analysis skip over the question of whether it is a substantial burden?
Addressed by Alito on p. 31 - 35 (too long to cut and paste)
I agree with your point about rights versus prudence. I believe Congress could have required even churches to include coverage of birth control in their insurance. The decision provide an accomodation was prudential and political.
The right to religious liberty isn't unlimited. People are free to believe whatever they want and for the most part practice as they wish, but they aren't free to exempt themselves from taxes, laws, and regulations by asserting a religious belief.
George D,
My question was actually addressed in the following section (whether the remoteness of the objectionable aspect makes it legally not a burden).
After reading that section, I assert that paying taxes that go to paying Alito's salary is a substantial religious burden for me. I challenge the government to demonstrate that the current system is the least restricted means and narrowly tailored to acheive a compelling government interest.
By all means:
"Whenever any form of government becomes destructive of these ends [i.e., securing inherent and inalienable rights, with powers derived from the consent of the governed], it is the right of the people to alter or abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness."
That's a quote from Jefferson. Of course, when I said in another thread that I am loyal to the people of Canada and not its institutions, I was informed that whatever my view, this was not Catholic.
And, I think the tea party, libertarian folks have adopted him, so I guess the Commonwealers will have to get in line!
Whatever you think of Mike Church's politics, a pretty creative guy eh!
I refuse to adopt a slaveowner as a symbol of liberty.
Bruce, until this week, the law never recognized a for-profit corporation as a religious institution.
Perhaps that formal recognition hadn't been tendered until last week, but there can be no doubt that in fact many firms operated from religious tenets. Essentially, the Court last week simply confirmed the rights of owners to do something that presumably has already been done for hundreds of years.
No, Jim it's not a "right." It was an interpretation of a statute, and it is a statutory privilege, not a constitutional right. If you did not understand that previously.
People are free to believe whatever they want and for the most part practice as they wish, but they aren't free to exempt themselves from taxes, laws, and regulations by asserting a religious belief.
You are correct, they cannot exempt themselves. But they can go to court and assert that Congress did not have the right to make the law in question because under the Constitution Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...
In this case, Hobby Lobby and the Greens availed themselves of the right to have the dispute adjudicated by the courts. The court didnt need to reach the Constitution because the Congress had enacted a law, the RFRA, which provided the answer. But religious freedom is clearly a right and we dont know how the case would have been decided absent the RFRA. Hobby Lobby might still have won.
Further, from what I have read, had the contraceptive provision been included in the actual Obamacare legislation, the law likely would have never been approved by Congress. Lets remember that the contraceptive provisions are a regulation developed by HHS.
You might find this interesting
It would be quite natural for those influenced by Judaism or Catholicism to reject the idea that religious people cannot come together and form a public businesses with a corporate religious identity. It would be difficult for these traditions to imagine a religious identity could be anything but corporate, just as it would be difficult for both traditions to check their faith at the door of their offices and in effect admit that this public activity operates by a different set of rules. It would be an admission that they serve two masters.
The full article is here
Thanks Bruce. An interesting analysis. But I think Camosy's laying responsibility for the critiques of the Court decision at the feet of Protestants is an over-generalization, maybe a gross generalization.
Camosy: "This view may resonate with many Catholics and Jews, but as the colleague who wrote me suggests, this isn't exactly the understanding of religion espoused by a significant number of individual- and privacy-centered US Protestants. And it is this view of religion that has been running the show for multiple generations when it comes to our culture's dominant understanding of religious freedom."
Aren't the Greens Protestants? Multiple generations? What? Going back to the Mayflower? U.S. secular culture may have its roots in certain Protestant ideas, but secular America seems to be full of Catholics and Jews who are "individual- and privacy-centered." Many of them have commented on this post! Whatever else secular America may be, it seems to be quite ecumenical.
Bruce, thanks for the link to that Charles Camosy piece - it's very strong.
Barbara, Tom, Andy - Camosy makes a salient point: if corporations represent a degree of separation between a corporation's owners and the liability that the corporation incurs, and that degree of separation should also (in your view) insulate employees from the owners' religious beliefs, then does not that degree of separation also insulate owners from any obligation to pay the corporation's employees a just wage?
Or, if you insist that the barrier between the owners and the corporation is insuperable, then let me pose it this way: if a corporation is not able to possess any religiously-founded principles, then it seems to follow that the corporation is also not able to possess any moral obligation to pay its employees a just wage. Either a corporation has moral rights and obligations, or it doesn't. Does a corporation have a moral dimension or not?
I wouldn't say that the corporate veil "insulate[s] employees from the owners' religious beliefs." I have no problem with Hobby Lobby being closed on Sunday, paying a "just wage" (though 31,000 dollars a year, at least in some areas--Boston comes to mind--is iffy on that score, especially if one is trying to raise a family. But we'll leave that aside). The issue is about religious EXEMPTION and accomodation from generally applicable laws. The Greens can set corporate policies within the law as they see fit, as can any other company--basing them on religious, philosophical, economic, or whatever other principles they see fit. That they use religious and moral principles in that is laudable. The question, though, is how much should they be accomodated when these principles come up against generally applicable laws, and why? As Cathleen Kaveny points out in a link that Camosy provides to Commonweal (and I think that his argument would be stronger had he engaged with some of these concrete concerns: his argument remains too abstract, to my mind, for a conversation about concrete decisions about law), Alito has greatly expanded the scope of RFRA, without discussing the principles of application. This is going to cause years of litigation and, frankly, legal chaos on these matters.
Honestly, I think what this whole conversation boils down to is, if we grant that religious accomodations to broadly applicable laws can and should be given, and I do, where are the lines? I have said that there is a distinction between a not-for-profit corporation whose primary activity is furthering specifically religious ends (and I construe these broadly: hunger, poverty, war, etc.). I argue that for-profit corporations have their primary purpose as making money, and that within that there are many laudable ways that religious and moral claims matter, but that for purposes of accomodation, going to for-profit and simply not-for-profit is a bridge too far for religious exemptions. You disagree. But where is the line to be drawn? Closely-held? If so, what is the difference in principle between this and larger for-profits (Alito doesn't do anything but assert this, but certainly doesn't argue it). Where does accomodation stop being about ensuring the rights of some, and becoming impinging on the rights of others?
Not sure I agree entirely with Camosy's reading of the Catholic tradition (especially since the middle ages and Aquinas).
Implicit in these rules is a sense that a "secular" discourse, evacuated of all explicitly faith-based content, is somehow more objective, more rational, more convincing. It is therefore more appropriate for the public sphere. Explicitly faith-based approaches are not appropriate for serious academic institutions and for evaluation of federal laws by serious Supreme Court justices because such approaches are beholden to faith based first principles.
In many, many instances related to social justice, the Catholic church drew on the natural law tradition. Not that natural law is completely convincing, however, the overarching point is that many points of goodness and virtue are accessible by natural reason and do not require supernatural revelation. It goes back to the entire nature/grace distinction and how grace builds on nature. It seems to me that it is more important than ever to articulate religious faith in a natural context. For the vast majority of issues, this suffices.
I argue that for-profit corporations have their primary purpose as making money,
Andy, The government defines which corporations are operating for-profit or non-profit under the tax laws. The definition has nothing to do with religion and is likely only loosely-related to 'good works' (Think of the brouhaha about campaign expenditures by 501(c)4 non-profits). That effectively means the government is defining who gets religious freedom. Under that construct, no one can claim their rights are being infringed, so effectively they have no rights.
Profit/non-profit is not synonymous with not-religious/religious. The world is messier than that.
The Greens chose a means of incorporation in which they decided to go as for-profit. There's a very good reason for this...........they are for-profit and aim to make money. But, for the sake of argument, let's say that I grant your point. You disagree about where I think the line of accomodation should be drawn. Fair enough. Where would you draw it? Should it be drawn at all?
Jim, just trying to understand your conservative position better:
You favor Hobby Lobby's exemption, correct?
Would you favor it if the company were not committed to its stated Christian principles? If it were not a closely held company? Is there some criteria of worthiness at work here that you're seeing that I don't? Or are you operating from a generally laissez faire idea that the government has no right to impose Obamacare demands on any company?
One thing I would point out to my liberal brethren is this: Hobby Lobby's exemption from the contraceptive portion of Obamacare may save jobs and health care insurance for its employees. Why? Because companies that do NOT want to have to comply with Obamacare for whatever reason are busily replacing full-timers with part-timers whom they do not have to cover with health insurance.
You can say that this is the fault of companies who are greedy and don't want to pay decent benefits ... and you'd be right. But it's also a flaw in Obamacare that this loophole exists.
Companies that replace full-timers with part-timers leave part-timers to buy through the exchange, and they do, but they're more likely to have to be subsidized by the public. Obamacare gets the blame for this from conservatives, not the companies who shed full-time positions. They're just being smart and maximizing revenues.
But I think the Hobby Lobby decision points out that support for Obamacare is so weak that companies know how to work the system to get what they want, whether it's morally laudable (prevent abortions by not covering them) or not.
Well, considering the nearly universal support for contraceptives in our society, I'm not sure a line really needs to be drawn. It seems to me that the Administration could have gotten virtually the same result if it said, "if you provide prescription contraceptive coverage it must be provided at no cost-sharing to the insured". Almost every employer would have complied because they believe contraceptives are a good and valuable employee benefit and providing them might actually lower their health insurance cost. Only those who strenously object and are willing to undergo the social opprobrium from employees and others would drop the coverage. Consider this:
According to the IMS Institute for Healthcare Informatics, though the proportion of Americans with no cost-sharing for contraceptives rose in 2013 to 50 percent from 20 percent, prescriptions written for contraceptive medications increased only 4.6 percent.
It seems to me that the administration picked a issue which would upset a small minority and used that group as a foil to generate support from the much larger group who are largely unaffected by the no cost contraceptives.
That said, I dont see the profit/non-profit line as providing any useful information about the religiousity of the underlying entities. Requiring a zero level of profitability for them to demonstrate their devotion to their faith is a bar to high, IMHO, particularly since, as Catholics, we believe that lay people are supposed to evangelize their workplaces.
What will happen when some closely-held company owners claim "I'm not religious but spiritual ... or moral ... or ethical ... or ....."
Will their claims for exemption be given equal weight?
How about the "nones" who, nonetheless, believe that their non-religious status has equal weight in their lives as do the religious beliefs of Duck River Baptists?
Hi, Jean, let me preface my answers by noting that I'm still thinking about many of these issues, and this has been a thought-provoking exchange for me.
I do support the Hobby Lobby decision, as I believe that people, including business owners, have religious liberty rights that should be respected. If there are broader implications to the ruling, I don't claim to know what they are.
I'd like to think that I'd side with the Greens if they were Orthodox Jews or Sunni Muslims or Buddhists.
Overall, I agree with the US bishops' concerns about religious liberty, even if I don't sign on enthusiastically to all of the tactics of their ad hoc committee.
Whether the distinction between closely held and widely held companies has some validity or utility when it comes to religious liberty is something I'm still thinking about. For now, I'm willing to see how it works out. I do believe that every corporation (and every other social structure, whether it be a family, a church or a Dungeons and Dragons group) has a moral dimension, and that this morality is greatly influenced by and enforced by senior management (either the owners themselves or their proxies who have been hired as executives). I don't find it problematic or threatening per se that some of those moral dimensions may have a religious foundation.
I think Obamacare has significant flaws, but I'd rather see people get medical care than not, and it could be much worse. The combination of the President's executive order and this Supreme Court decision seem to address a couple of the major concerns about Obamacare. I don't like and have never liked the contraception mandate, for reasons that probably are beyond the scope of this topic.
Health benefits, like paid time off, pension and 401k contributions, and other employee benefits are always touted as part of the employee's total compensation package. They are paid in cash and non-cash benefits. You perform the work assigned and in the manner expected by the employer and, in turn, they give you what they promised.
They don't and can't tell you how to spend your cash compensation. They don't and can't tell you where and how you spend your vacation time. They provide a range of 401k options, but can't tell you that you can invest in some but not the others. They don't and can't tell you how you will spend your pension earnings, the cost of which has been shared by employer and employee.
They can't decide or not decide to pay overtime according to state or federal statutes. They can't ignore OSHA laws. They can't discriminate in hiring based on gender, race, religion or marital status.
There are many restraints that laws impose that may conflict one's sincerely held beliefs about many things. There is a cost to taking advantage of the various tax, depreciation and other benefits that come with being incorporated under federal and state laws.
Why should employers be allowed to tell you how to use health benefits, the cost of which are usually (union shops not withstanding) paid by both employer and employee? Why should they be allowed to restrict some benefits to females when comparable benefits (vasectomies, Viagra, etc.) are offered to males?
Let me recharacterize your arguments.
1) Your employer decides your cash compensation; you can chose to accept it or not.
2) Your employer decides the parameters of your 401K; you can chose to participate or not
3) Your employer outlines your healthcare benefits; you can chose to participate or not. (That is how it still remains, by the way)
4) Your employer pays you not to show up at work for some period of time; you can do whatever you want during that time.
Yes, there are many government imposed constraints - minimum wage, OSHA, environmental, discrimination - but those are not at issue here. Some employers have expressed a conflict with their religious beliefs for the contraception mandate and they have the right under the law to challenge that mandate. And the Supreme Court agreed.
Within very limited parameters, employers define your job and your compensation and your benefits. You either accept them or move on. So what exactly is your argument?
Jim P., I find the legal definition of a "closely held" corporation of some help in sorting out my thoughts. According to the IRS, 50 percent of a company's stock has to be owned by five or fewer individuals. So some organizations are more "closely" held than others. Hobby Lobby is a family owned biz. But there are others in which, say five Mormons or Catholics or Jehovah's Witnesses or Hassidim have the power to impose rules or ask for exemptions on behalf of themselves when their views may not reflect the values of all.
So I'm not sure that using the definition of a closely held corporation to draw lines about religious freedom works for me. I think that was one of Barbara's earlier points, but it's taken me over 100 posts to get it.
Here is an interesting article about corporations, profit, and their corporate charters.
It relates directly to Ross's Op/Ed
The author makes his point well! It also means that we are free to place value and character judgements on corporations and the executives of those corporations need to discuss the moral implications of their practices. Frakking is a perfect example. Companies who practice frakking have a moral imperative to discuss the implication of their practices on the environment and cannot simply say it creates jobs and improves the economy.
Another thing that bothers me is that forcing somebody to buy health insurance that includes coverage of objectionable things wouldn't be a religious burden but forcing the coverage that someone is buying on behalf of another to cover objectionable things is a burden. There is a difference in that they cannot control whether their employee chooses to use the coverage for objectionable things, but the other side of this is that giving the employer a right to object gives them the right to make decisions about how their employees are able to use their insurance.
MOS, I'll try again. Please define "liberal". You and the all-knowing Douthart use the word more than a little disparagingly. Would be useful to know what you dislike.
Myself, I am quite comfortable believing you will soon enough your words rambling around in the same age-old quaqmire in which one finds "religion".
As for your remark "Douthat's column raised a warning flag about the venom and hysteria among liberals. It's worth thinking about--taliban and all." well, perhaps you've heard of the those pillars of reason Louie Gohmert, Ted Cruz and his ever so pleasant Dad, and Jim "Bob" DeMint to name a few. Two are active members of the most powerful legislative body in the known galaxy and the third, after understandably finding Christ in the art of market research, heads one of the most powerful "conservative" talking tanks in the nation. I will never be convinced not responding vehemently to such utter distortion of reality emanating from individuals claiming to be a voice of reason a useful tact.
BTW, did you notice how convincingly the Supremes stuck to their Hobby Lobby decision reasoning in their decision in the Wheaton College case? No wait, I'm mistaken. In point of fact they contradicted themselves. Goodness, I guess philosophy can be like that.
I take it were back to July [email protected]:47 & @10:49. Was that your question: "What is the liberal establishment?" Are you Todd Flowerday?
Why not start with the Democratic party as the liberal establishment? I am a Democrat (a dissatisfied one), that's how I vote, and I contribute to selected Democratic candidates. We could go on to include non-profits in the sexual reproduction advocacy business, Emily's List, the ACLU, the DNC to which I do not knowingly contribute. So am I a liberal? I am not a political conservative. Douthat's point: Liberals probably agree with 75 percent or maybe 80, of what religious and religious non-profit groups teach (such as good works, just wages, the option for the poor, and care of the vulnerable). Why do liberals insist then on making "reproductive rights," and all that they include under that rubric, the litmus test for their definition of religious freedom?
Well, Margaret, it's been two days ... I guess you stumped the class with that one :-)
It's hard to stick it out through three pages of comments!
Also, factor in that the sex abuse crisis is like cat nip for Catholics.
The fact that the SCOTUS has held that the RFRA applies to for profit corporations is the CENTRAL issue in this case. All other are insignificant.
Churches and non-profits have certain exemptions from laws that violate their beliefs. For example: Churches can descriminate on the basis of sex (women preists), religion (members of other faiths) sexual orientation. They are also exempt from paying taxes and may be exempt from certain other laws (contraception mandate etc.) Once you broaden religious exemptions to for profit corporations (90% of corp. are closely held) we are well on way to any business claiming a religious exemption from any law they don't like. Ginzburg warned about "blood transfusion mandate" exemptions and Scientologist "mental health mandate" exemptions. The "right" of as corporation to descriminate against gay people will be litigated soon enough. Alito has brushed these concerns aside by implying that he won't go there but the only way he can decline to give exemptions in those areas is by finding that those religious beliefs are less important than Hobby Lobby's in this case. Do you really think it is a good idea for the courts to decide which religious beliefs are important enough, and which are not, to get a special religious exemption?
Posner is wrong. True, a church is an" artificial entity" that recieves certain exemptions from the law. So is the Flynt's "HUSTLER Corp.". Following your logic, since a church gets tax exempt status, shouldn't Hustler also? Because some get something doesn't mean that everyone should get everything.