06 Jul

In Hobby Lobby, folks at the top get to exercise their religious freedom for everybody else

In a ringing decision last week – or at least as ringing as a 5-4 decision could be – the U.S. Supreme Court declared that “closely-held” corporations had religious rights, even if you hardly ever saw the corporation in church. Such corporations could, ruled the court, excuse themselves from the obligations of the Affordable Care Act to cover certain birth control procedures that interfered with the corporation’s deepest beliefs.

Corporations, declared the lord chancellor of Great Britain in the 18th century, have neither bodies to be kicked nor souls to be damned, but the Supreme Court has perceived a corporate soul. Judging by the treatment of banks after the collapse of 2008, the body to be kicked is still elusive.

The decision, initially described as limited, soon appeared expansive enough to spread into multiple other legal areas and other places, including Oregon, where it surfaced the next day. Like a number of court rulings, the decision seems likely to have started more arguments than it settled.

“Today the nation’s highest court has re-affirmed the vital importance of religious liberty as one of our country’s founding principles. The Court’s decision is a victory, not just for our family business, but for all who seek to live out their faith,” declared Barbara Green, a co-founder of Hobby Lobby, a chain of arts and crafts stores.

But if it was an endorsement of the Green family’s religious liberty, it didn’t say much for the religious liberty of their 13,000 employees. They apparently have the right to live out their employers’ faith.

If there’s a precedent here, it may be the Peace of Augsburg, the 1555 sorting out of Reformation Germany that decided that the religion of the prince – Catholic or Lutheran – would be the religion of his state. Ordaining that the people on top can make the religious decisions for everybody has a certain surface clarity.

In the initial Hobby Lobby ruling, issued last Monday, Justice Samuel Alito insisted that the court focused only on particular contraceptive approaches to which the Greens objected, considering them to be early-stage abortions. But by Tuesday, the court had ordered rehearings of three other cases where businesses had religious objections to paying for any contraceptive coverage for employees.

And there’s no reason to think the principle of business religious exemption is limited to health care. As Jeff Mapes reported in The Oregonian last week, the attorney for Gresham’s Sweet Cakes by Melissa, under investigation by the state of Oregon for refusing to bake a cake for a same-sex wedding, notified the state that he would be citing the Hobby Lobby decision in his defense.

And although Oregon labor commissioner Brad Avakian said he didn’t see the decision challenging the state’s laws against discrimination against gays, it’s not hard to see that it could. By the end of last week, a group of religious leaders requested a broad religious exemption to a planned Obama executive order banning discrimination against gays by federal contractors.

After the Hobby Lobby decision, said Michael Wear, who organized the letter, “the administration does have a decision to make whether they want to recalibrate their approach to some of these issues.”

Although the request was for an exemption just for religious groups, the Supreme Court has now seen no difference between specifically denominational groups and “closely-held” businesses with religious owners.

Although lots of other people see a difference.

“Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community,” wrote Justice Ruth Bader Ginsburg in dissent. “…The court, I fear, has ventured into a minefield.”

The minefield leads directly toward us.

“I believe religious claimants now have a strong argument to raise that there is a federal constitutional basis” for breaking through state laws, Steven Green, professor of law and director of the Center for Religion, Law and Democracy at Willamette University, told the Statesman Journal. “It’s almost kind of a back door way of this applying to places like Oregon.”

The discovery of a religious route around the law for “closely-held” private businesses has implications beyond any particular means of contraception, beyond all contraception, and possibly beyond anti-gay discrimination laws. It’s likely to be coming soon to a court, and to a locally valued principle, near you.

And even the Peace of Augsburg, enforcing the religious choices of the man on top, didn’t really fix things.

It was followed by the Thirty Years War.

NOTE: This commentary appeared in The Oregonian, July 6, 2014.

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