Tag Archives: Hobby Lobby

The Real Problem with the Hobby Lobby Decision

There are lots of things one might say about the Supreme Court’s immensely wrongheaded decision allowing closely-held corporations  to deny birth control coverage to female employees in contravention of the corporation’s “sincere religious convictions.”

We could point to the hypocrisy of an owner who buys lots of merchandise from China, with its mandatory abortion/one child policy, but whose religious sensibilities recoil from offering birth control to female employees who want it.

We could note that, thanks to the Administration’s willingness to accommodate religious paternalism, the costs of coverage didn’t even come out of the corporate pocket–the insurers paid it. How does that “burden” the corporation?

We could certainly consider how this decision fits into the broader backlash against equal rights for women that has characterized American politics for the past decade. Reliable birth control gives women control of their lives, and it’s clear that a significant number of men resent anything that promises women personal autonomy.

We could observe, as one of my sons did, that America is devolving into feudalism–that this case is just one in a series of recent policies and judicial decisions favoring the rights of the powerful over the rights of their serfs. And we could couple that observation with growing dismay over the attribution of “personhood” to entirely fictional beings called corporations. Legal constructs created to facilitate economic activity have now been invested with freedom of speech and religion. (Ironically, this case confers religious rights on legal fictions while taking them away from real, human women.)

And we could–and should–point out that the Supreme Court doesn’t really have the final word: we serfs–i.e. consumers– do. Any woman who shops at Hobby Lobby after this is a traitor to her gender. There may not be legal recourse from a Supreme Court decision–at least, not until or unless we get better Justices and this decision is revisited–but we can certainly encourage fair-minded folks to boycott the theocratic corporate “person” called Hobby Lobby.

All of these thoughts–and some not fit to transmit–went through my head when I learned of the decision. But what really struck me was a warning from a 1992 book by Jane Jacobs. The book was Systems of SurvivalA Dialogue on the Moral Foundations of Commerce and Politics. It’s a slim volume, and an easy–and fascinating–read. I recommend it. The basic premise was that once we recognize the universal rules of moral conduct (“don’t steal, don’t lie, etc.) there are two very different moral “systems,” a commercial system and a “guardian” or governmental system, with rules that make sense only within the imperatives of that system.

When you apply the moral rules developed for one system to activities properly within the jurisdiction of the other, you really screw things up.

Corporations are not inherently good or evil; they are simply a useful fiction. A line of cases that invests them with human attributes is worse than perverse; it’s dangerous.

Feudalism was bad enough when the Lord of the Manor was human, and would die.

 

File Under “Be Careful What You Wish For”

All eyes are on the lawsuit Hobby Lobby has pending in the U.S. Supreme Court, and most of the commentary revolves around the question of a corporation’s right to disregard a law of general application if that law offends its “sincerely held” religious sensibilities.

The threshold issue is whether a corporation can have religious sensibilities, sincere or otherwise. And hidden in plain sight in that question is an enormous threat to American business. In short, if Hobby Lobby prevails, it is likely to be at the expense of limited liability–which is the whole purpose of incorporation.

As one amicus brief noted,

The essence of a corporation is its “separateness” from its shareholders. It is a distinct legal entity, with its own rights and obligations, different from the rights and obligations of its shareholders. This Court has repeatedly recognized this separateness.

Shareholders rely on the corporation’s separate existence to shield them from personal liability. When they voluntarily choose to incorporate a business, shareholders cannot then decide to ignore, either directly or indirectly, the distinct legal existence of the corporation when it serves their personal interests.

The brief goes on to point out that it is this very “separateness” between shareholders and the corporation that they own that promotes investment, innovation, job generation, and the orderly conduct of business.

Think about it. How likely would you be to buy stock in a company if you thereby ran the risk of being found personally liable for improper or negligent corporate behavior?

Several commentators have noted that Hobby Lobby is effectively asking for the best of both worlds.  Its owners want to benefit from the protection against personal liability, but they don’t want to recognize that the corporation is an artificial entity not entitled to personal individual rights.

Hobby Lobby and Conestoga argue that they should be exempt from federal law because of the religious values of their controlling shareholders, while seeking to maintain the benefits of corporate separateness for all other purposes. These corporations have benefited from their separateness in countless ways and their shareholders have been insulated from actual and potential corporate liabilities since inception. Yet now they ask this Court to disregard that separateness in connection with a government regulation applicable solely to the corporate entity.

If the Court rules in favor of Hobby Lobby–if it finds that a corporation can assert a religious right to discriminate–it will be the beginning of the end of limited liability and corporate immunity for shareholders.

It’s tempting to say “it would serve them right,” but the truth is, such a result would be a body blow to business and the American economy.

There’s a reason the business community has stayed out of this litigation.

Thus Spake the Profits

We do seem to live in the Age of Hypocrisy.

A Facebook friend posted a comment about Hobby Lobby, the craft store chain headquartered in Oklahoma. Like Chik-fil-A, the chain makes much of its Christian values, closing on Sundays and, most recently, suing the Obama Administration over the mandate to include contraceptive coverage as part of the health insurance offered to employees.

“Next time you hear someone defend Hobby Lobby’s extremist stance on birth control and health insurance law, try this little thought exercise. Go to a Hobby Lobby and make a small inventory of every item they sell that’s made in China. Yes, the same China that has MANDATORY FORCED ABORTIONS. Then ask a salesperson why Hobby Lobby’s commitment to Christianity extends to how their employees live their lives but not to where they get their inventory from.”

Seems like a reasonable question to me.