For any American ostriches with their heads in the sand or non-US readers who thought it was just a strip from Ripley’s Believe it Or Not!, this is the recent ruling that says a corporation owned by religious believers has the right to opt out of providing otherwise mandatory contraceptive services to its employees under their healthcare plans if it offends the owners’ sensibilities.
It has always been surprising how many Americans imbue the Supreme Court with some objective detached legal wisdom, as it has always interpreted laws in a highly partisan way. In its glory days, at the time of the Dred Scott case, the Supreme Court invoked ‘state’s rights’ to protect the rights of citizens from slave states to retrieve their property, even in states that did not recognize that people could be property.
In the Hobby Lobby case, the Supreme Court follows the famous Citizens United case in endowing corporations with powers, souls and consciences. I can hardly count the ways this ruling offends common sense. The justices seem to have a very circumscribed view of religion, somewhat contiguous with the Vatican (before the current pope, at least). First, the same court ruled some years ago that using peyote in American Indian religious ceremonies was still illegal, and somehow I can’t see the learned justices even considering the documented use of big spliffs in Rastafarian liturgy.
So would a sincere religious belief in the virtues of slavery – as espoused by almost all churches in the South before 1860, and a few even since – allow companies to enslave the sons of Ham? (This is, of course, hypothetical – it is much cheaper to employ them on Federal minimum wage.)
I foresee an almost endless line of petitioners for religious exemptions: Christian Scientists who own companies will want exemptions from providing surgery in employee healthcare plans; Jehovah’s Witnesses will want to exclude blood transfusion services. Shakers and similar sects eschew procreation – will they be allowed to avoid providing pregnancy services and maternity leave for their fecund employees? The courts have previously frowned on Quakers and other pacifist sects objecting to paying taxes to support military spending – will those same sects now be allowed to refuse legal leave to military reservists if it offends their sensibilities?
There are also interesting business implications. To begin with, once the Green family incorporated its Hobby Lobby business, it became a separate person, surely? But if the personhood of the owners is coterminous with that of the company, what happens to limited liability? If the company goes bust, doesn’t it follow that if the owners and the company are one and the same thing that those owners should accept the moral hazard of the financial – or indeed criminal – charges against the company?
When a company breaks the law, it cannot be imprisoned, executed or otherwise returned to the path of righteousness. Its owners and managers can practice corporate mayhem and escape unscathed. If the Green family and Hobby Lobby are coterminous in conscience, should they not be coterminous in consequences? If the company does wrong, shouldn’t the full force of the law come down on the owners – who cannot draw any distinction between themselves and the company when it suits?
There is more than a moral hazard here. As Forbes enterprisingly discovered, most of its pension plan is invested in companies making precisely the same type of products it refuses to allow its health plans to buy. Should the Green family be sued for its failure to maximize returns by discouraging employees from using products that would enhance the company’s pension funds? Why not?