Tuesday, July 1, 2014

Corporations are people too, my friends!

Each summer, the Supreme Court tends to have one major case where people just lose their minds about the decision.  Today, the Court announced its decision in Burwell v. Hobby Lobby Stores, Inc. (2014).  Their decision was a strange one for a number of reasons.  It has a little something for everyone in this drama:  religious freedom, corporate rights, Obamacare, and a clash between liberals and conservatives.  Add the fact that the Court's decision was 5-4, and we have ourselves a fun controversy.

The problem resulted over the requirement under the Affordable Care Act (ACA) that businesses provide health insurance to employees.  Businesses obviously were uncomfortable with the idea of being required to provide insurance to its employees (although many large corporations already did). 

The Department of Health and Human Services (HHS) created a policy that required that health insurance packages include coverage for the 20 different forms of contraception approved by the Food & Drug Administration (FDA).  Religious institutions were extremely upset with this, as they believed it conflicted with their particular religious beliefs.  As a result, the HHS created an exemption to their policy, allowing religiously based non-profit groups to not provide health coverage for contraceptives.  Problem solved, right?  Or not.

Hobby Lobby, a well-known arts and crafts store, also wanted an exemption from the HHS policy.  The founder/owner of Hobby Lobby, David Green, holds strong Christian beliefs and did not want his company to be forced to provide health coverage for four specific types of contraceptives.  Like churches, and non-profit faith groups, he believed this to be in direct conflict with his religious beliefs.  However, the HHS would not provide the exemption because Hobby Lobby is a for-profit company. 

Hobby Lobby filed suit in federal court, claiming that the HHS denying the exemption was a violation of both the Religious Freedom and Restoration Act of 1993 (RFRA) and a violation of the First Amendment's Exercise Clause.  According to the RFRA, the "Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability."  Most folks are probably familiar with the First Amendment's portion on religion, which reads, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ..."

So, Hobby Lobby presented an interesting question:  did the HHS violate the First Amendment and the RFRA by denying the exemption? 

According to the Court, yes the HHS did violate federal law and the Constitution.  Justice Samuel Alito wrote the Opinion of the Court, stating, "closely held corporations" cannot be required to provide health insurance coverage for contraceptives they find to be objectionable under religious pretenses. 

This ruling presents a dangerous trend that I find discomforting -- that corporations are being treated like individual citizens with constitutional rights.  However, Alito's opinion presents a powerful argument.  And though I may disagree with the principles of the Court's decision, their opinion does follow the letter of the law. 

One of the biggest objections to this decision will be the wording of the RFRA.  Since it reads that the government shall not substantially burden a person's exercise of religion, critics would say that a corporation is not a person.  And normally, I'd agree, however Congress does not.  According the Dictionary Act, any time a federal law uses the word 'person', it "... include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals."1  Alito rightly points this out, so yes, corporations really are people in this instance.  Also, according to the HHS, Hobby Lobby would accrue a fine of over $1.3 million per day they did not comply with the mandate.  That would definitely constitute a substantial burden upon freedom of religion.

The Opinion of the Court also recognized that the federal government had already crafted out an exemption for non-profit religious groups, thus the Court questioned why that same exemption could not be made available to for-profit companies.  According to the current HHS guidelines, the women working for religious non-profit groups can still have access to the forms of contraception they desire with no cost to them or the company.  Alito rightly asserted that the HHS policy could be extended to for-profit corporations and the entire issue would be solved.  

The four dissenting justices and the HHS did raise a compelling point though.  How can a corporation actually exercise religion?  Hobby Lobby, as a company, cannot attend church, pray, or participate in any other sacrament.  This issue is rendered moot, however, because the HHS conceded that a non-profit corporation can be a "person" within the meaning of RFRA. Because of this, the Court reasoned there's no argument about a for-profit company falling under that same protection of the RFRA as a non-profit.

Additionally, the HHS argued that a for-profit corporation could not enjoy the protections of religious freedom because the primary objective of those groups is to make money.  While that it is true, businesses also engage in charitable efforts outside of its objective of profit.  Thus, if a company can pursue charitable objectives in humanitarian causes, then it stands to reason that same company can pursue religious objectives as well.

The Supreme Court made the correct decision by the letter of the law.  Their job is to interpret the Constitution and subsequent laws, not to decide a controversy based on opinion.  If critics of this decision are unhappy about the result, the remedy they seek isn't to be found in the judicial branch, but in the legislative or the executive.  If so compelled, Congress should consider redefining what the term 'person' means under the Dictionary Act.  The President of the United States could also direct the HHS Secretary to craft a new policy with respect to enforcing the ACA.  If voters are uncomfortable with the actions or inaction of these two branches, then they have the ability to respond via the ballot box.

However, Americans ought to be very uncomfortable with the outcome of this case for several reasons. 

First, the fact that "closely held corporations" can be construed to have rights under the Constitution in the same manner as an individual is disturbing.  The definition of such a corporation, by the federal government, is a business that "Has more than 50% of the value of its outstanding stock owned (directly or indirectly) by 5 or fewer individuals at any time during the last half of the tax year; and is not a personal service corporation."2  By that definition, more than three-quarters of businesses in the United States are closely held and could opt out of laws based on religious objections.  Ironically, the companies who do opt out of coverage for contraceptives end up creating another problem.  The women who still wish to have contraceptives end up receiving that coverage via the taxpayer. 

Furthermore, conservatives who are lauding this decision as a triumph of freedom might want to take a step back to think about this one.  Conservatives have long held in interpreting the Constitution in a fashion that sticks to the original intent of the Framers.  I imagine it would be terribly difficult to demonstrate the Framers had corporations in mind when developing the Bill of Rights.  As the great Chief Justice John Marshall once noted, a corporation is "an artificial being,invisible, intangible, and existing only in contemplation of law."

We should also give serious consideration and weight to the strongly worded dissenting opinion of Justice Ruth Bader Ginsburg, which was joined by both of the other two women currently on the Court.  The fact that contraception is an issue that almost exclusively pertains to women, it would be wise to consider what they have to say.

Ginsburg's dissent also brings up a very significant point about weighing the religious freedom of Hobby Lobby and other corporations like it against the vast numbers of people who work for those companies.  She wrote,
"The exemption sought by Hobby Lobby and Conestoga would override significant interests of the corporations’ employees and covered dependents. It would deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage that the ACA would otherwise secure."3
In other words, Justice Ginsburg believes the needs of the many outweigh the needs of the few.  Justice Alito and the majority seemed to overlook the rights of the individuals who make up that company, which should not be neglected.

The point must also be made that the RFRA (and the Court's interpretation of the Free Exercise Clause) allow for the government to intervene in religious practice when the interference is in furtherance of a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest. 

The simpler version of that is, a) the government must have a good reason for blocking religious practice, and b) whatever they do to block a religious practice must be the least restrictive way of blocking it.  For instance, the Court has ruled that some religious exercises cannot be "opted out" of -- such as human sacrifice, polygamy, or drug usage.  The interpretation of these two criteria when applied to the Hobby Lobby case seems murky, at best.

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