The Hobby Lobby case; not so nutty, actually

[nosborne48]

The Hobby Lobby case really bothers me as a lawyer and (I hope) thoughtful human being.

Some background: http://www.salon.com/2014/03/24/right_w ... hypocrisy/

My usual news sources tend Left and secular and paint Hobby Lobby as making war on women by denying them access to birth control. The implication is "barefoot and pregnant".

The Right Wing loudmouths call the lawsuit an attack on the free exercise of religion and all that. See the link above.

In fact, and as usual, the truth is more nuanced and more troubling. Hobby Lobby is not, as far as I can tell, unwilling to fund contraception in its true form. It's the "morning after" type of treatment the owners of the corporation object to.

I don't think there's much real debate about contraception in the U.S. anymore outside the Conference of Catholic Bishops and a few Neanderthals. But this thing looks more like abortion than birth control and there IS a significant social debate going on right now about abortion. It's not trivial on either side.

I hope that calm will prevail and that our Supreme Court will examine the issue with the care and sensitivity it deserves.

[Rich Douglas]

If an organization wants to be a religion, fine. Organize as one. Enjoy your First Amendment shield.

If it wants to be a business, fine. Then organize as one. But act as one. That includes treating people equally under the law. And if you don't want the responsibility of following the law, don't be a business.

These kinds of things come in three stages. First, the oppressors enjoy their advantage and shape society accordingly. Next, as those oppressive laws get overturned, the former oppressors demand exemption from the change, hoping to carve out an exception. (Think restricted country clubs, diner counters, Jim Crow laws, etc.) Finally, the change is accepted almost universally, with a few hold-outs. (I'm looking at you former Confederate states.)

Birth control and reproductive rights are the norm. The faction against them have fought and lost. So now they nip at the heels of the law, hoping to chip away enough room to exempt themselves. This is Hobby Lobby's stance. As for abortion, I guess the first stage of the fight isn't quite over since the exceptions being carved out have had an effect on the availability of the procedure. We'll see over time.

[nosborne48]

Well, I don't disagree with any of that. My concern, though, is that either the Supreme Court will decide strictly on the basis of Hobby Lobby being a corporation and therefore not allowed to have moral views, a two edged thing in this era of corporate non-responsibility, or will carve out the exception you describe.

[SteveFoerster]

Birth control and reproductive rights are the norm. The faction against them have fought and lost.

On birth control I agree there's a broad consensus, even among many American Catholics, but on abortion I don't think there's one at all, particularly in later terms.

[Rich Douglas]

I'm going to express this in moral terms instead of legal ones, but I think it should apply legally.

I don't think employers should get to pick and choose which individual procedures are or are not covered by health plans. Health decisions should be between patients and their providers and, because we have a stupid health care system in this country, the insurer. I feel when employers get involved it is an invasion of privacy.

This is actually a good thing, though. It represents a step forward in society regarding change. First, people resistant to change fight the change. When they lose, they fight for exceptions to it (like this case). Finally, those get put away and we move forward as a changed society. We've seen it in civil rights; now we're seeing with reproductive rights. So keep on fighting. Win a few battles, even. But you cannot stem the tide of change.

[levicoff]

In 1989, a federal district court in Arkansas enjoined a group of devout Christian women from going into a school in Gravette and reading Bible stories to the children (attendance was voluntary). Needless to say, a couple of parents sued and, since there was obviously an establishment of religion taking place at the school, they won.

The school district was represented by John Eidsmoe, an eminent legal scholar and then a professor at the Coburn School of Law at Oral Roberts University (the school that ultimately relocated to Pat Robertson’s Regent University). Following the lower court decision, John filed a writ of cert. with the U.S. Supreme Court, which, naturally, declined the case.

One day I said to John, “You know, you’re bound to lose this case. Why pursue it?”

John, who is among my favorite professors of all time, a man so conservative he would make Falwell look liberal, replied, “Why do you think we’ll lose?” (I used to love it when he would pull a pop quiz on me.)

Fortunately, I knew the answer – the Supreme Court ruled many years ago in Zorach v. Clauson (1952) that kids could be released from school early to attend religion classes held elsewhere. However, in the earlier McCollum v. Board of Education (1948) they held that such classes could not take place in the schools.

John smiled and said, “You’re right.”

“So,” I continued, “why do you do it?”

“To let them know we’re there.”

(I posed a similar question to Igal Roodenko, as liberal as John was conservative, several years earlier. Igal, who served 18 months in jail as a conscientious objector in WWII, was protesting at the site of a soon-to-open nuclear power plant, and I was covering their rally for a radio program at the time. “You know this plant will open,” I said. “Why continue the protest?” Igal replied, “To let them know we’re there.” I guess some philosophical ideas transcend ideology.)

My take of the current case? Since corporations are not human, and since Hobby Lobby is not what the law calls a pervasively sectarian institution (being a commercial enterprise, despite the beliefs of its founder), I would make an early prediction that they will lose the case, and that billionaire owner David Green knows that.

So why, we might ask, is he pursuing a case he’s likely to lose?

Well, if you were to ask that question and if he were to respond honestly, I tend to think he might say, “To let them know we’re there.”

Incidental note: In the Chattanooga area, there is a fairly large national trucking company called Covenant Transportation (presumably named after the nearby Covenant College). On the back of every one of their trailers is a large sign that says, “It is not a choice, it is a child.” Yet, while I don’t know if they have ever tried to limit their health care benefits for drivers and other employees, I’m sure that they have a load of drivers that holds a pro-choice position on abortion. (Unlike Hobby Lobby, a privately held firm, Covenant is traded on the NASDAQ.) So why do they still bother with such blatantly evangelistic prolife signs? You guessed it – to let people know they’re there.

Another incidental note: Several years ago I interviewed Tony Campolo, a Baptist minister and now-retired sociology professor from Eastern University who was well known as a spiritual advisor to then-President Bill Clinton. Although an evangelical who was popular with so-called Jesus festivals, Campolo is pro-choice. Discussing the topic of single-issue voting during the first Reagan campaign, he said, “While I don’t agree with [right-to-lifers], I can understand the notion that this single issue is so important to them that they are willing to put every other issue on the back burner.” One may assume that the issue of abortifacient contraception is so important to David Green of Hobby Lobby that he’s willing to magnify it into what may (or may not) be a losing battle. As for me, I’m willing to just sit back and watch the entertainment.
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I’m doing some classes this week, so I’m too lazy to look up the McCollum v. Board and Zorach v. Clauson case references (they’re easily searchable). The Gravette case, Doe v. Human, can be found at 725 F.Supp 1499 (W.D. Ark. 1989). And there’s a fascinating bio of Igal Roodenko on Wikipedia. Enjoy your homework.

[nosborne48]

Dr. L's post demonstrates the kind of attitude I hope the Supreme Court takes.

Abortion is not like most other Right vs. Left issues. For one thing, it is a deeply moral issue on both sides and just a bit of reflection by either group would convince them that the other side's concerns are just as deeply felt as their own.

Unfortunately, neither side seems willing to engage in that reflection. For each group the issue is one of literal life and death. You can't compromise on life and death.

I don't know what the Court will do. I hope they don't punt but I think they might. Dr. L. has done his homework. And it would be the easy way out.

Maybe the ONLY way out?