Tuesday, January 8, 2013

A Response To the " Hobby Lobby is not a church " Article

I wanted to respond an article written by Dagney Velazquez that writes on  Kansas City Spirituality for the Kansas City Examiner . See Hobby Lobby is not a church .

She starts out perhaps on a not too promising note with "The newest cause that has some evangelical Christians up in arms is " .

Needless to say it just not Evangelical Christians that are up in arms ,and I think many observers would agree there are some critical issues that have merit here. Further as to many Evangelical bodies as well as other Faith Communities the issue of conscience protections is not at all novel .

She objects to how the Hobby Lobby CEO has stated his case. She writes:

He’s filed a lawsuit claiming that his religious freedom is being impinged, “the government cannot force you to follow laws that go against your fundamental religious belief,” he says.

That’s not an accurate statement for at least a couple of reasons. First, the government can force people to follow laws that go against their religious beliefs if those laws serve to protect others. So, for example, if someone’s fundamental religious belief is that if his daughter is raped she should be killed, the government can force that someone to follow the law prohibiting murder. Another example is a pacifist who believes war is murder, but is required to help finance war through income taxes.

In a sense what she is saying is true. However as often the case when rights are dispute all sides are a tad hyperbolic as to these matters to make the point of what is at stake.. I suspect the Hobby Lobby CEO also does not think that murder by a citizen can find refuge under the First Amendment.

However here we see a problem that occurs through the piece . Velazquez treats all Government interest as the same. The interest the Government has in stopping murder is the same as forcing a company to help pay for various morning after contraception that is in dispute. 

Let me try to briefly put some legal principles that I think are important but are often ignored by those that support the mandate. To put this  in legal terms we are talking standard of judicial review used by  courts. It is part of the hierarchy of standards that courts use to weigh the government's interest against a constitutional right or principle.

To put it briefly we have the following :

Rational basis review -  the government has a legitimate reason for a law or regulation that is rationally linked to it . This is the lowest level of scrutiny.

Intermediate scrutiny - law or policy being challenged furthers an important government interest in a way that is substantially related to that interest

The third level of scrutiny is strict scrutiny which important because not only is the toughest standard for the Government to meet , but it's the level of scrutiny that is part of the claims various plaintiff are bring. strict scrutiny standard in two contexts . The context here we are concerned about is when a fundamental constitutional right is infringed like those in the Bill of Rights.

Strict scrutiny can be summed up in a three part test that the courts use.  That can be summed up as follows :

The law or policy
(1) be justified by a compelling governmental interest and
(2) law or policy must be narrowly tailored to achieve that goal or interest and
(3) The law or policy must be the least restrictive means for achieving that interest, that is, there cannot be a less restrictive way to effectively achieve the compelling government interest.

This is all critically important because the Plaintiffs in these cases in these are cases among their various causes of actions are bringing a Religious Freedom Restoration Act claim . This three prong test is  in the legislation itself. A good overview of the various plaintiffs  Religious Freedom Restoration Act arguments in these HHS Contraception mandate cases can be found here at The HHS Contraception Mandate vs. the Religious Freedom Restoration Act . As Ed Whelan notes in that piece :

As the text of the Religious Freedom Restoration Act (presented in my introductory post) makes clear, there are four questions involved in determining whether the HHS mandate violates RFRA:

1. Does a person engage in an "exercise of religion" when he, for religious reasons, refuses to provide health insurance that covers contraceptives and abortifacients?

2. Does the HHS mandate "substantially burden" such exercise of religion?

3. Does application of the burden to the person further a "compelling governmental interest"?

4. Is application of the burden to the person the "least restrictive means" of furthering a compelling governmental interest?

If the answer to question 1 or question 2 is no, then there is no issue under RFRA and no reason to reach questions 3 and 4. If the answers to question 1 and question 2 are yes, then questions 3 and 4 come into play; if the answer to either question 3 or question 4 is no, then RFRA has been violated.

The Religious Freedom Restoration Act is of the up most importance in these claims by the various Plaintiffs including Hobby Lobby. Yet it is not mentioned in the Velazquez article.

Returning to her article she writes :

The second and more pertinent reason that Mr.Green’s statement is misguided is that Hobby Lobby is neither a church nor and individual, so religious freedom is not extended to it as it is to non-profit religious groups and to individuals. US District Court Judge Joe Heaton said as much when he rejected Green’s request to block the health care mandate.

“Plaintiffs have not cited, and the court has not found, any case concluding that secular, for-profit corporations such as Hobby Lobby and Mardel have a constitutional right to the free exercise of religion,” Heaton wrote.

In this she is very correct. In fact this is one of the vital issues at stake. It is also a issue that has ramifications that all Christians and people of Faith need to seriously think about the ramification..

Hobby Lobby at this point appears not to be in one of the more friendly legal forums to argue these claims. I say at this point because they have not lost the case yet. They have not just met the particular burdens for a preliminary injunction in the Federal District and Appeals court where they "legally reside" .

Other for profit corporations have met success meeting this burden in the legal forum they reside in . For instance see via the Religion Clause that follows these cases : Illinois Federal District Court, Bound By 7th Circuit Precedent, Grants Preliminary Injunction In Contraceptive Mandate Challenge , Missouri Federal Court Issues TRO In Contraceptive Mandate Case, Invoking 1st Amendment As Well As RFRA  ,  District Court Grants Domino's Pizza Founder Preliminary Injunction Against Contraceptive Mandate Enforcement , and very importantly Court Enjoins Requiring Christian Publisher To Cover Contraceptives Seen As Abortifacients In Health Care Plan .

In other words some Plaintiffs that are for profit corporations have met success and some have not. As to Judge Heaton opinion that she cites I urge people to read this post at National Review Wobbly Hobby Lobby Ruling in Favor of HHS Mandate .

In that article Ed Whelan I think points out the importance of what is at stake. That is does Hobby Lobby as a for profit corporation even have First amendment rights.

He says in part :

..Heaton’s belief that the RFRA rights of business owners are diminished if they operate through the corporate form rather than through an unincorporated business also makes no sense. Once one recognizes the general principle that the owner of property has religious-liberty rights in his use or control of that property, why should those rights be any less if the property is a wholly owned corporation?

To re-use my previous hypothetical: A Jewish family operates a deli. Implementing its religious beliefs, the family keeps the deli closed on the Jewish Sabbath. But the federal government enacts a law that requires that all food-service businesses engaged in interstate commerce be open seven days a week.

What sense would it make to conclude that the deli owners’ RFRA claim is weaker if they operate their business as a wholly-owned corporation rather than as an unincorporated business?

I think that gets to  the point well. In fact one would think all people of Faith would be concerned about this outlook . The fact is many family own operations are Limited Liability corporations known most commonly called in the shorthand  an  L.L.C .

My uncle's small family owned  taxi cab operation  is a L.L.C. For liability purposes and for the protection of his family  on potential liability alone it's evident why he has protected himself using this arrangement.

As Ronald Columbo noted in his very recent and important Law Review article The Naked Private Square :

When coupled with the benefit of limited liability (which appeared in England in 1855 and in the United States in the 1930s ( 282), the importance of the corporate enterprise was difficult to understate. For the advent of the corporation enabled an individual – almost any individual – with a good enough idea to raise the capital he or she needed (via the investment of stock purchasers) to put that idea it into action. (283) The shield of limited liability allowed putative stock purchasers to take on just that amount of risk they were comfortable to take on. This is what led Nicholas Murray Butler, president of Columbia University, to famously remark in 1917: “In my judgment the limited liability corporation is the greatest singlediscovery of modern times . . . even the steam engine and electricity are farless important than the limited liability corporation and they would be reduced to comparative impotence without it.” ( 284)

At the same time, states were beginning to allow businesses to incorporate for “any lawful business or purpose whatever,” and not merely a purpose that had an explicitly publicly-oriented thrust. ( 285) Thus, by the close of the 19th century, the modern business corporation “truly came into its own.”( 286) Not surprisingly, the liberalization of the rules of incorporation were accompanied by a dramatic rise in the number of business corporations.(287) In the United States, there were 335 corporations in 1800;  by 1890 there were nearly 500,000.(288)

In other words we can see why  the limited liability corporation is used by many people. What is the justification that in some cases these owners can't exercise First amendment rights versus someone that sets up a unincorporated business? We seem to realize , and the Courts grant this, that these corporations have some rights.

For instance we would oppose I think an argument that the Government could  not seize a persons house without due process and compensation  , but on the other hand have no such limitations on his incorporated business. Likewise I think most of would oppose a Government argument that they have to get a warrant for a person's home but not his incorporated business establishment.

Establishing that an incorporated business CAN have a First amendment cause of action does not really change the substance of First Amendment law. It does not mean they win their case . It does mean they get their day in Court though.

Let me return to one last part of the Velazquez article. She writes :

In other words, if you want to do business in the USA, you have to follow the laws. This is not new. A church is allowed to descriminate against women based on their religious beliefs, but a construction company can not. A religious charity can fire someone for marrying someone of a different race, but a bank can not. A church can legally refuse to promote someone based on that person’s religious practices, but, as long as the religious practice doesn’t interfere with work, a restaurant chain can not. Labor laws are in place to ensure a safe, equitable, just workplace for all Americans, and even if this goes against someone’s fundamental religious beliefs, they must follow those laws when conducting business.

This touches another issues. The Affordable Care Act and indeed the HHS Contraception mandate does not equally apply to all buisiness.  As was noted by a  in Missouri by a Federal magistrate judge Sharpe Holdings, Inc. v. United States Department of Health and Human Services,  the  court held that for 1st Amendment purposes, the mandate is not a neutral law of general applicability:

Plaintiffs have shown to the court’s satisfaction for the purposes of these initial proceedings, that the ACA mandate is not generally applicable because it does not apply to grandfathered health plans, religious employers, or employers with fewer than fifty employees. Specifically, plaintiffs argue that the ACA mandate’s exemptions clearly prefer secular purposes over religious purposes and some religious purposes over other religious purposes. Burdens cannot be selectively imposed only on conduct motivated by religious belief.

Again the issues here are complex.

In conclusion I hope people that question claims against the HHS Contraception mandate consider a couple of issues.

 First the religiously expressive corporation  is on the rise and how that should be dealt with needs to be considered by people of Faith. I really think it is worth reading this recent Law Review article The Naked Private Square that engaged the important theological and legal consequences of this. Are we really comfortable basically putting a rather artifical divide between what we do in Church and what we do at work. Are Christians that are concerned about Social Justice really comfortable with the implications of the Government postion they are arguing in Court. Have they even though out the implications beyond the HHS Contraception mandate that they in this particular instance might like.

Second we should recall how accommodation of religious belief in this country has served us well in this Republic. As Notre Dame Law Prof Rick Garnett stated

In a pluralistic society, people will often disagree about values and policies, and it will not always be possible to accommodate those who object in good faith to regulatory requirements. At the same time, a society like ours – with a Constitution and federal religious-freedom protections like ours – will regard it as often both wise and just to accommodate religious believers and institutions by exempting them from requirements that would force them to compromise their integrity. This is such a case. We Americans do not agree about what religious freedom means, but we have long agreed that it matters, and should be protected through law. True, there will sometimes be tension and conflict, and trade-offs and compromises. Given our deep-rooted commitment to religious freedom, though, our goal as a community should always be to strike the balance in a way that honors that commitment.

I was thinking of our history of accommodation when I read that Birmingham, Ala. based manufacturing company had to settle with a Seventh Day Adventist they refused to hire because he could not work on Sunday.  We could say tough rules are rules . However as Americans we generally think accommodations of religious practice is a good thing.  It would be a queer understanding of that principle if one thought in the so called "secular" vocation realm that accomodation was just a one sided affair.

It does seem that certain rights the Seventh Day Adventist has to live his "secular " vocation must also apply to business owners that wish the same freedom. It seems ignoring one side puts both parties at risk in the end.


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