Hobby Lobby is a privately-held corporation owned by David Green, who founded it in 1972 and operates it according to biblical principles. He attends the Council Road Baptist Church in Bethany, Oklahoma. The Southern Baptist Church opposes abortion, stating that “all human life is a sacred gift from our sovereign God and therefore … all abortions, except in those very rare cases where the life of the mother is clearly in danger, are wrong.” Green opposes the rule in the ACA mandating that companies providing insurance provide contraception coverage which includes 4 (of 20) contraceptives, including “the Plan B morning-after pill, an emergency contraceptive called Ella, and two different kinds of intrauterine devices (IUDs) that may sometimes work by preventing a fertilized egg from implanting into the uterus.”
U.S. Appeals courts have split on whether to exempt for-profit companies from being required to provide contraception when they hold it would violate their first amendment rights of religious freedom, the Denver-based 10th Circuit Court of Appeals siding with Hobby Lobby, and the Philadelphia-based Third Circuit ruling against it. The Supreme Court has agreed to take up the case.
The progressive argument against allowing an exclusion for Hobby Lobby is that a corporation does not have the right to impose its religious principles on its employees. This was voiced by Judy Waxman, vice president of health and reproductive rights at the National Women’s Law Center. “Should the court decide that this service is something bosses can decide for their employees, what else can bosses decide? Can they decide they don’t want to cover vaccines or HIV medications? Can they say, ‘I don’t believe in these kinds of wage and hour rules?’ To say, ‘Yes, a corporation can impose its religion on employees’ — that can have very far-reaching implications.”
The Third Circuit’s argument was that the corporation does not have such rights. As the majority remarked, “We do not see how a for-profit, ‘artificial being, invisible, intangible, and existing only in contemplation of law,’ that was created to make money could exercise such an inherently ‘human’ right.”
The conservative argument is that the corporation is an extension of its owners, and that they have a first amendment right of freedom of religion which the government cannot violate. The Tenth Circuit ruled, “The First Amendment logic of Citizens United v. Federal Election Commission, where the Supreme Court has recognized a First Amendment right of for-profit corporations to express themselves for political purposes, applies [here]. We see no reason the Supreme Court would recognize constitutional protection for a corporation’s political expression but not for its religious expression.”
The case is really about two things, right and reign. While it is framed as a case of religious freedom, this case is generally about whether one is pro-life, or pro-choice. (Imagine if a company fired an employee for expressing homophobic and racist ideas, and see how sides would change–but more on that below.) But it is also about reign, who gets to have rights. For this we should return to George Lakoff, and his view that conservatives hold a strict father model, and progressives a nurturant parent model of society. By extension to the world of work, in the conservative, strict father model the employer has authority and requires obedience from his employees, in return for which they get a pay check. In this view, it’s easy to support the religious freedom of the employer in a case like that of David Green and Hobby Lobby. If we extend the nurturant parent view to work, on the other hand, the work is the object of value which the employee offers to the employer in exchange for pay. In this view, it is much easier to think that it is the employees who are losing their freedom of religion to the rights of their employer.
Does the employer get to impose his religious, or other, views on his employees?
While it’s a bit of a force fit to discuss the recent Duck Dynasty dustup in conjunction with the Hobby Lobby case, there are some issues which link them.
In an interview with GQ, Phil Robertson, Duck Dynasty patriarch, made comments which have caused some controversy, including:
“Start with homosexual behavior and just morph out from there. Bestiality, sleeping around with this woman and that woman and that woman and those men.”
He went on to extol how good things were for black people in the pre-entitlement, pre-welfare, pre-civil-rights era:
“I never, with my eyes, saw the mistreatment of any black person. Not once. Where we lived was all farmers. The blacks worked for the farmers. I hoed cotton with them. I’m with the blacks, because we’re white trash. We’re going across the field…. They’re singing and happy. I never heard one of them, one black person, say, ‘I tell you what: These doggone white people’—not a word!… Pre-entitlement, pre-welfare, you say: Were they happy? They were godly; they were happy; no one was singing the blues.”
To his supporters, regarding his comments on homosexuality, he was expounding truths, supported by the Bible. When A&E placed him on hiatus, conservatives rallied. To Bobby Jindal, it was about a corporation taking away an individual’s freedoms, “But I also acknowledge that this is a free country and everyone is entitled to express their views. In fact, I remember when TV networks believed in the First Amendment.” Sarah Palin chimed in, “Free speech is an endangered species. Those ‘intolerants’ hatin’ and taking on the Duck Dynasty patriarch for voicing his personal opinion are taking on all of us.”
More interestingly was some of the commentary from progressives. Think Progress’ Zack Ford wrote, “A&E, as a company, enjoys constitutional protections as well, and is under no obligation to provide a platform for messages it disagrees with.”
As in the Hobby Lobby case, the issue is not about an abstract principle like freedom of speech or religion, but about whether or not we agree with the words or actions of the individuals involved. Corporations do not have the constitutional protection to refuse to provide contraceptives to their employees, but they do have the constitutional protection to fire an employee whose views differ from their own. Or is it the other way around?
As I mentioned, it is a bit of a force-fit to discuss the two cases together. Had Hobby Lobby fired a woman for promoting publicly the morning-after pill, as A&E had fired an employee for espousing anti-gay views, there would be a better match. But the point remains, to what degree should corporations be able to control the activities of their employees.
Robert George is a conservative Christian thinker who has written on natural law. He also chimed in on the Hobby Lobby issue with an article in the Wausa Daily Herald. It is the notion of natural law which makes these cases interesting. While we claim to be arguing about legalistic issues, we are really arguing about what kind of society we want.
A simplistic view of natural law is that what is right is already present out there, and that our task is to discover it, and lead our lives according to it. In Catholic theology, God gave us reason so that we could understand natural law. Early Protestants were leery of reason, and are more likely to seek the tenets of natural law in authority. We see this when individuals or groups bolster their case by referring to authoritative texts, particularly the Bible or America’s founding documents, the Declaration of Independence and the Constitution. Defenders of both the Hobby Lobby stance, and the Duck Dynasty stance, have done this.
Progressives also reference natural law. America’s founding documents include the statement, “We hold these truths to be self-evident, that all men are created equal,” which is a statement that our individual liberty is not something we made up, but that is God-given. Progressives on the contrarian side of the Hobby Lobby and Duck Dynasty issues have referred to this to support the right to same-sex marriage, and to making decisions about one’s own body.
However, democracy is also based on the notion that the people get to decide for themselves how to structure their government, their society, and their lives. Not so much simply majority rules, but nonetheless a reference to the choice of people today. We may not have had gay marriage as recently as even 10 years ago, but we have decided, in 17 states so far, for marriage equality. Abortion may have been against the law several decades back, but we chose to allow it under certain circumstances.
Still, even our reference to something akin to natural law when addressing issues like these seems secondary and a bit too abstract. We already know what we believe, then we find justifications and principles to support it. If we are pro-life, in the Hobby Lobby case we side with freedom of the corporate owner to run his company in accordance with his beliefs. If as in the Duck Dynasty case we believe that gay rights should be suppressed, then we disapprove of the company acting in accordance with its beliefs. And vice-versa.