Corporate contraception: the religious freedom of Hobby Lobby

bcbHow much discrimination, in the name of exercising one’s religious freedom, is acceptable?

Hobby Lobby, an Oklahoma-based arts and crafts supply store with 500+ establishments across the US, along with its sister company, a Christian book store chain, are seeking exemption from the birth control requirement of the Affordable Care Act. On June 27, a judge suspended fines of up to $1.3 million while the case is being pursued:

“The 10th U.S. Circuit Court of Appeals had said Thursday the companies were likely to prevail, comparing the companies to a kosher butcher unwilling to adopt non-kosher practices as part of a government order.”

A kosher butcher? I wonder what kind of health care he provides to his employees? Because that’s really the issue. More on that later.

Hobby Lobby, Inc. is owned by the David Green and his family (worth about $4.5 billion) and has been a privately held corporation for its 40 year life. The company’s Web site proclaims, “The foundation of our business has been, and will continue to be strong values, and honoring the Lord in a manner consistent with Biblical principles.” Like Chick-Fil-A, Hobby Lobby is closed on Sunday. The Greens donate tens of millions of dollars a year to evangelical causes. A major recipient has been Oral Roberts University, which has been given over $110 million since 2007.

But the Green’s enterprises—Hobby Lobby, Christian bookstores, religious movie production companies, and an advertising agency, among others—are not churches or religious non-profits, they are privately held corporations. If the family chooses to donate a significant portion of their wealth to religious causes, that’s their choice.

But in this case, the Greens want the option to extend their religious practices into their business by denying their employees insurance coverage for certain forms of birth control on religious grounds. The objectionable methods prevent a fertilized egg from being implanted in the uterus, and, since the Greens believe that life begins at conception, preventing the egg from taking root is tantamount to abortion. So far, there is not an exception in Affordable Care Act implementation to contraception coverage for secular employers.

The Obama administration and Health and Human Services have been working ways to provide even employees of churches and other religious institutions with separate optional coverage through insurance companies for contraception. Some religious institutions, most notably religiously-affiliated schools, have tried to restrict or influence the behaviour of employees by having them classified as “ministers” and therefore subject to all of the organizations’ precepts. Others simply issue a blanket statement requiring all employees to adhere to institutional teachings. So far, there don’t seem to be any cases of women fired for using artificial birth control, probably because of medical confidentiality requirements. But there are cases of women being terminated for getting pregnant.

Interestingly, over 2/3 of sexually active Catholic women use artificial birth control, despite the Church’s ban. This is a similar figure to that for the female population at large. One could assume that Hobby Lobby’s workforce is probably reflective of that norm.

On Hobby Lobby’s Web site, in the Career section, it asks, “Why Hobby Lobby?” It offers these answers:

  • Benefits
  • Advancement Possibilities
  • Employee Discount
  • Community Involvement
  • Stores Closed on Sunday

Note that it does not say “Christian working environment,” “Faith-based employer,” or use other language that would imply a religious litmus test. It’s not clear when, in the hiring process, a potential employee would be informed about the need to adhere to the Green’s beliefs regarding contraception. Yes, Christian language is used on the site and is apparently prominent in the Hobby Lobby stores, but that is a reflection of the owner’s beliefs, not a requirement for its employee’s beliefs. Why? That would be illegal.

Relating this back to the kosher butcher case, there are a number of differences. A kosher butcher shop exists to meet the dietary needs of observant Jews. To be kosher, the butcher shop needs to conduct the processing of meat in specific ways and provide for the appropriate certifications of the products. Not all of the employees have to keep kosher. A shop could even be owned by a non-Jew. What’s more, kosher, is in its essence a product specification that exists for the requirements of the consumer. Without those requirements, there would be no demand to supply, despite the desire of the business owner.

Hobby Lobby does not exist to serve primarily a religious function, except maybe in the minds of its owners. There is no product specification that comes from consumers for a faith-based arts and crafts store. It sells more than religious goods and many goods that have no religious purpose. Its locations are diverse and seem to be selected for their profitability, rather than the orthodoxy of the customer base.

The Greens, and their chief ally in their lawsuit, the Becket Fund (a non-profit that pursues cases of religious discrimination ) state:

“The Green family respects the religious convictions of all Americans, including those who do not agree with them. All they are asking is for the government to give them the same respect by not forcing them to violate their religious beliefs.”

The grounds for their lawsuit is that the Affordable Care Act violates the Religious Freedom Restoration Act of 1993. Originally passed to protect Native American sacred sites and practices, it requires that governments A) refrain from limiting a person’s religious freedom, unless they have a compelling societal reason for doing so and B) select the least intrusive method to achieve their goal, if they need to restrict a person’s religious freedom. The Green contend that the Affordable Care Act both limits religious freedom and is overly intrusive.

Now that would be true if we were talking about the federal government limiting members of the Green family in their religious beliefs or practices. But that’s not the situation. In this case it’s the ability of the Green’s family-owned corporation to act on the religious beliefs of its owners. A business incorporates to establish a protective wall between itself and its owners. The Green family wants to keep that wall in place, but create a conduit through it for their religious beliefs.

The problem with opening a religious conduit for corporations to act on their owner’s beliefs is where does that right end? Can a florist refuse to sell flowers to an existing customer when the customer marries his same-sex partner? Could an employer who opposes homosexuality or Islam, refuse to hire Muslims or gays?

Can they refuse to serve an African-American Muslim lesbian at the lunch counter?

Of course the another tack does not increase the porous nature of the corporate wall—it builds on recent case law, namely Citizens United. There is the possibility that the courts or government agencies will expand the definition of corporate personhood to allow for corporations to have not only free speech, but also freedom of religion.

Which raises the interesting question, if corporations are people, what religion should they choose?

Yes, Americans have religious freedom—both in terms of their belief and practice, or lack thereof, and from having religion forced upon them.

Yes, Americans can take their labor elsewhere if they find working conditions untenable.

But allowing secular corporations to cross those lines and impose faith-based dictates sets a bad precedent that has to be stopped.

6 replies »

  1. This is a great, great post. My head is reeling. I don’t see an easy answer to this one.

  2. It started off pretty straight-forward and just kept growing on me. In this case, technical difficulties were acting like yeast.