Conestoga Wood Specialties v. Sebelius

Hobby Lobby: 'Closely Held' Does Not Mean 'Mom and Pop'

In the Supreme Court’s decision in Hobby Lobby, the Court held for the first time ever that a for-profit corporation counts as a “person” under the Religious Freedom Restoration Act and that a “closely held” corporation basically shares the religious exercise rights of its owners.  This leads American law into a treacherous minefield, as Justice Ruth Bader Ginsberg made clear in her dissent.

It’s worth pointing out, as Justice Ginsberg also noted, “’Closely held’ is not synonymous with ‘small.’” Hobby Lobby is a massive corporation employing some 13,000 people, but there are other closely held companies that are much larger. In a footnote, Ginsberg mentions family-owned Mars, Inc. and closely held Cargill, which are both among the largest five private companies in the country. Guess which is number two? Koch industries, with $115 billion in revenue and 60,000 employees. Brothers David and Charles Koch reportedly own 84 percent. Rounding out the top five private companies are Dell and Bechtel. Those five companies employ more than 436,000 people. What religious claims might their owners find useful to make in undermining laws that protect their workers?

PFAW Foundation

‘Right to Discriminate’ Bills, Meet Hobby Lobby

Last month, as Arizona governor Jan Brewer deliberated whether to sign or veto a law that would have allowed businesses to discriminate against LGBT customers, the public outcry was immense. Senators Jeff Flake and John McCain shared their opposition via Twitter. Companies including American Airlines, Apple, and AT&T urged a veto. Multiple state senators who had voted for SB 1062 asked Gov. Brewer to veto it. When she did, advocacy groups praised the decision and many in Arizona and across the country breathed a well-deserved sigh of relief.

But it turns out that sigh may have been premature.

This morning the Supreme Court will hear arguments in Sebelius v. Hobby Lobby Stores, Inc., a case that, on its face, appears to be dealing with a different issue – women’s access to contraception – but in fact grapples with some of the same core issues in play with “right to discriminate” bills like Arizona’s. In the Hobby Lobby case, as in its companion case Conestoga Wood Specialities v. Sebelius, corporations are trying to avoid complying with the contraception mandate of the Affordable Care Act. But both the Supreme Court cases and the “right to discriminate” bills address the question of whether for-profit corporations have religious rights and can use those “rights” in a way that brings harm to others. 

Comparing the vetoed Arizona bill to efforts to let companies deny covering contraception, National Women’s Law Center vice president Emily Martin put it like this: “What you’re seeing in both cases are corporations asserting the right to break the law in the name of religion, even if it results in harm and discrimination for third parties.” And The New Yorker’s Jeffrey Toobin noted,

Indeed, a victory for Hobby Lobby might bring in an Arizona-style rule through the back door….The Arizona law and the Hobby Lobby case represent two sides of the same coin. Both assert that the invocation of a religious belief allows a company to opt out of a government requirement that applies to everyone else.

But corporations have never had religious rights, and as affiliate PFAW Foundation senior fellow Jamie Raskin wrote in a recent report, that concept is simply “absurd.”

[I]t is time for the Court to restore some reality to the conversation.  Business corporations do not belong to religions and they do not worship God.  We do not protect anyone’s religious free exercise rights by denying millions of women workers access to contraception.

PFAW
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