Answers to All Your Hobby Lobby Questions
People on the Internet seem to have a lot of thoughts and questions about Hobby Lobby. Here are some answers, to the best of my ability.
1) What can stop a company from arguing that it is against the owner's sincere religious beliefs to pay workers a minimum wage?
The Religious Freedom Restoration Act is not a blank check to religious groups to do what they want. The law says that the religious belief must be sincerely held, and also that the government can burden the exercise of that belief if it has a compelling state interest that cannot easily be achieved in any other way. That's why no one has successfully started the Church of Not Paying Any Taxes, though people have been trying that dodge for years.
2) How can we tell if a belief is sincere?
Hobby Lobby closes its stores on Sundays and otherwise demonstrates a pretty deep commitment to fairly stringent Christian values, of which opposition to abortifacients is often a part. There will always be some gray area, of course, that allows people to claim special treatment for spurious beliefs, but the government has done a fair job over the decades of sorting out genuine beliefs from obvious attempts to dodge the law. Hobby Lobby seems to fall pretty squarely within the "sincere belief" camp.
3) But Hobby Lobby buys stuff from China, which has a horrible one-child policy that forces abortions!
We're in pretty complex moral territory here, but everyone -- EVERYONE -- is at least remotely commercially associated with something they find appalling. Almost no one extrapolates out their moral beliefs to the most stringent possible application, else those of us who believe that charity is a moral obligation would be forced to sell everything we own until we were as poor as the poorest peasant.
Hobby Lobby seems to be drawing a line at "after I give cash money to another adult human, I'm not responsible for what happens with the money," which is a reasonable line that many people draw, lest they have to spend all their time investigating the morals and habits of their lawn-care professionals. They may also think -- probably correctly -- that buying stuff from China has no impact on the number of abortions, except possibly to drive them down as the country gets richer. At any rate, no, you have not discovered some enticing "gotcha" that means Hobby Lobby is a big, fat, insincere hypocrite.
4) But Hobby Lobby invests in companies that make birth control! They don't have a problem with IUDs when they can turn a profit, apparently!
I don't blame you for saying this, because everyone else who read that somewhat overwrought Mother Jones article seems to have gotten the same impression. However.
What Hobby Lobby does is outsource its 401(k) to a company that provides mutual funds; those mutual funds invest in companies that make birth control. There are all manner of reasonable distinctions here. First, Hobby Lobby is self-insured, so they are actually paying for the objectionable birth control. They are not, on the other hand, running a mutual-fund company, because that is illegal unless you are registered to do so with the government.
Hobby Lobby may think that once it has passed off the cash to the employee, it's none of the company's business what the employee buys with it (that seems to be company policy on the disputed birth control). It may also think that the fact that this is done through an intermediary makes it different. Or it could take the stance -- common among evangelicals -- that because the stock does not actually promote the production of the birth control in question (money paid for stock goes to the owner of the stock, not the company), it does not have the same moral obligations as it does when it is a customer of those same companies. Those are three separate reasonable distinctions it could be making, or it could be making a different distinction that I don't know about. Or Hobby Lobby simply may not have realized what investments the proffered mutual funds were in; do you know what’s in your Vanguard S&P 500 Index Fund? I don’t exactly, and I spend most of my day writing about business and public policy.
At any rate, given all those possible legitimate reasons to make the distinction Hobby Lobby has made, the Mother Jones complaint is pretty weak tea.
5) But Hobby Lobby used to cover birth control before this lawsuit!
It says it didn't realize it covered IUDs. That's quite possible; the list of covered benefits in these plans is now veeeeeerrrrry long.
6) Can the Catholic Church now hire undocumented immigrants because it believes in amnesty?
No, because see above: Religious freedom gets balanced against the government's interest in secure borders. The church is very likely to lose if it tries this, which it won't.
7) Why does the Supreme Court think corporations are people? Isn't that obviously ridiculous?
The Supreme Court does not think that corporations are people in the sense that you mean -- the Supreme Court will not be ruling that Wendy's has a Title IX right to play college sports. But we extend corporations many of the rights that people get because otherwise the results would be horrifying: The government would have the right to shut down the presses at the New York Times; search Google's servers without a warrant whenever they liked; tell churches (usually organized as corporations) what they could believe; deny nonprofits the right to organize protests; and otherwise abridge fundamental human rights.
In this case, the ruling is that closely held corporations (companies where five or fewer people own more than half the stock) are in some sense an extension of their owners, and therefore enjoy the same rights as sole proprietors and partnerships to exercise their beliefs.
8) What if I declared that it was my religious belief to discriminate against gays?
Actually, that's legal in many places, no matter what your religious beliefs. But if you live in one of the places where it's illegal, you're likely to lose that challenge, because again, the government has a compelling interest in preventing discrimination, and anti-discrimination rules are probably the least restrictive way of achieving that end.
9) Why is it any of my employer's business what birth control I use?
It's not, but once you make them pay for it, you make them a party to the transaction. You can't, on the one hand, mandate that someone pay for something, and on the other argue that it is a matter of supreme indifference to them.
Hobby Lobby self-insures, so there's no question that the company itself would be paying for contraception, which it says it finds morally abhorrent. That puts them in RFRA territory. If you endorse universalizing your own beliefs -- for example, “Brendan Eich should be fired because he spent his own money on opposing gay marriage” or “Women have a right to the fullest contraceptive access” -- then it shouldn’t surprise you that other people might not be content to privately not use abortifacients while buying insurance for its employees who pay for same.
10) What if your employer decided it didn't want you spending your salary on IUDs because they're paying for it?
Why does so much of this argument end up in ludicrous hypotheticals? First, no employer that we know of does this; second, they couldn't do this, because of health-care privacy laws; and third, if they tried to argue from RFRA, the Supreme Court would not side with them, because again, the liberty promised under RFRA is balanced against other interests, not absolutes. RFRA has been around for 20 years, and we haven't legalized, say, pedophilia.
11) What if Hobby Lobby is wrong about the science?
Yes, I, too, have read the fact sheet everyone just googled up from the Princeton women’s health service. People saying Hobby Lobby Doesn’t Understand the Science are overstating things a bit -- a lot of the disagreement hinges around when a pregnancy begins (when an egg is fertilized, or when it implants in the uterus). If you think that life begins at fertilization, then you will be more worried about certain forms of birth control (IUDs, especially) than people who believe it begins later.
Another version of this argument says that because IUDs mostly seem to prevent ovulation or kill sperm, Hobby Lobby has nothing to worry about. But if you think that destroying a fertilized egg is morally equivalent to murder, arguing that this only occasionally happens may not be very satisfying. A lot of the fact sheets circulating seem to me -- with the caveat that I Am Not a Scientist -- to be somewhat overstating their case in the somewhat understandable urge to deny ammunition to the other side. “We don’t know whether emergency contraception prevents implantation” turns, after several iterations, into “emergency contraception does not prevent implantation,” and, similarly, “IUDs prevent conception” turns into “IUDs do not destroy fertilized eggs,” even though that’s at best hotly contested. IUDs can be used as emergency contraception quite a bit after an accident or a rape, which seems to point to something beyond a sperm-killing or ovulation-preventing effect.
You can argue that there’s a gray area, and Hobby Lobby might be wrong on this point. On the other hand, you can also see why, if there’s a gray area about whether you’re killing a baby, you might want to err on the side of not killing a baby. (For the record, I’m neither endorsing nor opposing their beliefs about conception, just trying to see it from their viewpoint.)
From the point of view of the law, however, this is an interesting but irrelevant sideshow: What matters is their belief. We don’t require courts to stage an elaborate inquiry into whether American Indian beliefs about what happens when they ingest peyote are accurate; we say that as long as they sincerely believe that this is central to their religious practice, they are entitled to deference from the law.
12) What if my employer says it has a sincere religious belief in human sacrifice -- can he kill me?
Yes. If your employer has a deeply held religious belief in human sacrifice, they can strap you in a cage, reach into your chest with their bare hands to pull out your still-beating heart, then drop the cage into a fiery pit. It’s a tough break, but from time to time, the Tree of Liberty must be watered with the blood of patriots. Sorry about that.
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