Impressed by the ill-informed hysterical reaction that my “real me” Facebook friends had to the Hobby Lobby decision, I explained to them that the decision is very narrow and will not (a) ban contraceptives across America and (b) lead to anti-gay lynch mobs. Here’s a slightly revised version of my Facebook post, which still failed to satisfy their paranoia and inability to understand the law. I’ve also added a little hypothetical that might open their minds. (No, don’t say it. It’s improbable, but not impossible, that a DemProg mind can open).
The Hobby Lobby decision addresses one thing only: whether an administrative rule conflicts with a long-standing law.
In 1993, a Democrat Congress passed, and a Democrat president signed, the Religious Freedom and Restoration Act (“RFRA”). RFRA holds in relevant part that the federal government may act in a way that substantially burdens the exercise of religion only if it can establish that its action is the least restrictive means of advancing a compelling government interest. Nothing in the Act distinguishes between individuals and corporations.
The administrative rule at issue is the edict from Health and Human Services (“HHS”) mandating that all corporations affected by Obamacare must provide their female employees with unlimited access to all contraceptives available on the market.
Hobby Lobby is a closely-held, family-run corporation. The Green family, which owns Hobby Lobby, has a strong Christian faith, and is open about the fact that it runs its company in a way that is consistent with the family’s religious beliefs. These beliefs affect every aspect of the way in which Hobby Lobby is run, whether it’s the fact that even the least of Hobby Lobby’s employees gets paid an hourly amount that’s almost twice as much as minimum wage, or the fact that many of the store’s craft products come complete with little crosses attached to them.
Hobby Lobby has long provided comprehensive insurance for its employees. As part of this insurance, it makes available to its employees 16 different types of contraceptives. Moreover, Hobby Lobby has never said (a) that it would stop covering contraceptives entirely or (b) that contraceptives should be outlawed in America. Instead, it made a very narrow protest to the HHS mandate: It objected to the fact that the mandate would force it to offer, not 16, but 20 contraceptives to its employees. The additional 4 contraceptives are or can be used as abortion-causing agents. The Green family’s religious faith means that it is adamantly opposed to abortion, which it considers murder.
The HHS mandate put Hobby Lobby in an impossible position: It could either use its own money to pay directly for abortifacient drugs or it could pay $475 million a year in penalties. It was this dilemma, it argued, that constituted a substantial burden on its exercise of religion under RFRA. Put another way, Hobby Lobby argued that it faced a Hobson’s choice: directly fund something it opposes on core religious grounds or go bankrupt. On these facts, the Supreme Court agreed that Hobby Lobby had satisfied the “substantial burden” requirement under RFRA.
There was something else that the Supreme Court accepted as given: For purposes of the ruling, the Supreme Court accepted as true HHS’s claim that forcing corporations to pay for their female employees’ contraceptives (simply because the Obama administration says it’s unfair not to) serves a compelling government interest.
(As an aside, I was thinking about this “unfair” point. According to my DemProg friends, the demand that corporations pay for contraceptives arises because it’s not fair that women have to shoulder these costs, while men don’t. Let’s put aside the fact that the DemProgs can’t explain why it’s fair that corporations must bear contraception costs. The really important point is that, if the reason to force corporations to shoulder the burden is so that women don’t have to pay more in costs related to their unique biology just because they are women, corporations should also be required to pay for tampons, sanitary pads and, most importantly, chocolate, all of which are costly menstrual necessities that burden women, not men. Additionally, corporations should be entitled to learn which employees have gone through menopause, so as to scale back on those uniquely feminine costs. And now back to the Hobby Lobby case…)
With the Supreme Court having accepted that Hobby Lobby had proved that it was being significantly burdened and that HHS had proved a compelling government interest, the sole issue before the Court was whether HHS was using the least restrictive means to advance its compelling interest. Based on this single, limited issue, the Supreme Court concluded that HHS’s birth control mandate did not meet the RFRA test. The Court had a very simple metric for proving this conclusion: HHS itself handed the Court proof that there was a less restrictive way to serve this compelling interest.
HHS created this less restrictive contraception mandate when religious non-profit organizations objected to paying directly for contraceptives and abortifacients. HHS said that religious institutions could avoid the mandate by signing a document stating that their religious beliefs prevented them from complying with the contraception mandate. With this document, the onus shifts to the insurance company to apply the mandate. (The Little Sisters of the Poor are challenging this workaround on the ground that it cannot apply to self-insured entities. Likewise, even if the religious entity has a third party insurance company, the insurance company will simply increase its rates, with the result that the money for the contraceptives and abortifacients will still come from the corporation that has religious objections. The Supreme Court’s eventual decision should be interesting.)
With HHS having already figured out a less intrusive method for getting “free” contraceptives to women, the Supreme Court held that the same workaround that applies to religious non-profits can apply equally well to closely held corporations if the owners have a sincere belief in a core religious issue. And that’s it. That’s the whole Hobby Lobby decision.
My Facebook explanation was clear enough that those who have been brainwashed into being terrified by the Hobby Lobby decision had only two defenses left. The first was that religious fanatics will use the decision to justify myriad things such as banning birth control nationwide, revoking the rule that corporations must pay for women’s contraceptives, and refusing to hire gays (a fear based upon this letter from a religious leader who clearly hadn’t read the Hobby Lobby decision himself).
The second defense, which I’ll address in the remainder of this post, was that the entire decision is wrong because, as a predicate matter, it treats a corporation as a person. “Corporations aren’t people” my DemProg friends cry, as they’ve been programmed to do since the Citizens United decision. In other words, Hobby Lobby has no conscience and therefore cannot be treated as a conscientious objector.
I came up with a hypothetical scenario — a probable hypothetical scenario — that should have DemProgs insisting that, yes indeedy, corporations can and should be people — or, at least, Leftist corporations can and should be people.
The year is 2026. Since 2020, Republicans have majorities in Congress and a president in the White House. The wars in Syria and Iraq long ago merged, starting a conflagration that constantly threatens to spill over into every region of the world. The result is the Islamist caliphate equivalent of the Cold War, with the U.S. trying to put out small Islamic fires all over the world in order to de-fang the Sunni and Shia monsters without having to engage them directly on American soil.
The military is more central to American life and survival than ever. Defense costs have therefore skyrocketed, so Republicans went looking for new ways to equip the military. To this end, they noted that America’s business class was arguably benefiting most from the military’s efforts, because businesses were able to carry on and profit primarily because the military kept the Islamists far from American shores. It therefore would be logical for corporations to subsidize a significant part of the war effort.
Based upon this reasoning, in 2022, the Republicans successfully passed a new law, known as the Act for an Affordable Military (“AAM”). The Acts’ supporters affectionately call it “Adopt A Marine.” Its detractors refer to it disdainfully as “America’s A Monster.”
AAM goes far beyond traditional military funding, which relied upon tax revenues funneled to the Pentagon. Instead, AAM directly engages corporate America as an essential part of equipping the American military. Immediately upon the Act’s passage, the Pentagon was tasked with creating rules under AAM (a 3,200 portmanteau document written in vague and broad terms) that would shift onto corporations primary responsibility for equipping troops.
The Pentagon immediately issued a rule mandating that henceforth every corporation will be responsible for outfitting Marines with everything a Marine at war could need: uniform, pack, weapons . . . the whole megillah. Moreover, the number of Marine Gear Kits (or “MGKs”) that a corporation must assemble will be equal to the number of employees the corporation has. Thus, a corporation with ten employees must put together 10 MGKs, a corporation with 50 employees must put together 50 MGKs, and so on. Thanks to the Supreme Court’s 2012 Obamacare decision, this kind of . . . ahem . . . “tax” (i.e., forcing taxpayers to purchase a product, even if they don’t want it themselves) is perfectly legitimate.
Corporations that fail to comply with the MGK mandate will be assessed an annual tax equal to $10,000 per MGK, with no maximum cap. That means that, if a corporation with 50 employees refuses to put together its designated MGKs, it will pay an annual penalty of $500,000. A corporation with 30,000 employees could find itself on the hook for $300,000,000 annually. Again, the Supreme Court’s 2012 Obamacare decision legitimized this “penalty” for failure to “pay” the “tax.”
Something else has changed now that the Cold War against the new Caliphate is being carried out by Republicans: The DemProg peace movement is resurgent. Two of the most active peaceniks, Sol and Luna Giggleweed started out in their home office in 2020 (when Republicans finally re-took Congress and the White House following Elizabeth Warren’s ill-fated four-year presidency), designing, creating, and marketing bumper stickers, window signs, mugs, toilet paper . . . anything that could advance the pacifist cause.
With business booming, the Giggleweeds incorporated, calling their new business “Pacifists United Together Zone” or “PUTZ.” They now have 50 full-time employees working in their green-compliant factory in San Francisco’s SoMa district.
Thanks to the Giggleweed’s business acumen, you can now walk into any trendy store and buy one of PUTZ’s $25 king-size mugs emblazoned with “Live Peacefully or Die.” If that’s too expensive, for $10 you can get a set of 10 bumper stickers reading “Peace : The New Caliphate Wants It Too.” PUTZ also manufactures the usual complement of sweatshirts with peace signs on them; posters urging people to “Visualize World Peace” or “Pray for Israel’s Destruction”; and the ever-popular Naughty Underwear set, in both multigender and cisgender versions, with “Make Love, Not War” glitter-stamped on the crotch.
For the Giggleweeds, peace isn’t just a gimmick to make a motive; it’s also their core ideology. Both Sol and Luna attended the Bush-era anti-war protests, and they oppose Republican-led wars with every fiber of their DemProg beings.
Significantly, even the Giggleweed’s faith is driven by their pacifism. They are ardent members of the Presbyterian Church (USA) (aka “PCUSA”). In 2018, PCUSA’s governing board formally voted that “We, the PCUSA, oppose all wars, except for those wars dedicated to Israel’s destruction.”
Nobody quite knows how it did it, but PCUSA asserted that this vote reflected a core religious principle derived from the Books of Samuel, 1 Kings, and 1 Chronicles. PCUSA’s revised doctrine is immune to challenge thanks to the tattered remnants of the First Amendment (which, in 2018, was amended to state that “Except as to matters of human sexuality and gender identity, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . .”).
PUTZ employees are as devout as the Giggleweeds. Indeed, many of them came to the Giggleweed’s attention during the Bush War protests. Without exception, all of the employees belong to PCUSA or affiliated faiths. Their strong anti-war beliefs (unless, of course, the war is waged against Israel) infuse every aspect of their lives. They are grateful to work at PUTZ, a corporation with a business model that puts pacifism on the front line, so to speak.
For these reasons, the Giggleweeds and their PUTZ employees were horrified when AAM became law and, even worse, when the Pentagon explicitly passed to corporations the responsibility for providing MGKs. PUTZ therefore joined with PCUSA and other like-minded churches and mosques, which are also on the hook for MGKs, to object to the mandate that they directly invest in MGKs or pay a substantial penalty to help fund the “Republican Anti-Caliphate War Machine.”
The Republican establishment was unmoved by anti-AAM protesters. Instead, it took great pleasure in reminding the protesters and litigants that, thanks to agitation from this same cadre of people in the wake of the Hobby Lobby decision, Congress in 2016 (Year One of Elizabeth Warren’s disastrous administration) amended RFRA to state explicitly that it does not apply to corporations, regardless of the corporation’s size or whether it’s publicly traded or closely held. There is no way out for the Giggleweeds and PUTZ: they either put together MGKs for the Marines, or they pay $500,000 so that someone else can put the MGKs together for them.
To the Giggleweeds and their ilk, the Republicans have only one thing to say: It’s always nasty when your own chickens come home to roost.