Hobby Lobby

The waiting is over. On the last day of the term the Supreme Court of the United States (SCOTUS) released its opinion in Burwell v. Hobby Lobby, holding by a 5-4 decision (conservatives vs. liberals) that (certain?) privately held companies do not have to supply forms of contraception under the Affordable Care Act (“Obamacare”) which violate the owner(s)’s religious beliefs. Despite all of the hype surrounding the case, including many American Catholics holding it up as a grand showdown over religious liberty, I agree with Eric Posner’s pre-decision assessment in Slate that the case is pretty much a bore. (Posner has some further post-decision thoughts here.)

I am not surprised by the decision, although I was expecting Hobby Lobby to prevail 6-3. Some folks I know who followed the case assiduously predicted a 7-2 or 8-1 victory. I never understood why. SCOTUS is a political animal and its decisions are ideologically driven; “legal reasoning” is just the art of fig leafing. Still, I understand the frequent temptation of lawyers and political junkies to suspend disbelief in order to make the Court more compelling, legally grounded, and grand than it really is. I do the same thing all the time when I watch professional wrestling. Yes, I know you can’t punch another human being in the skull ten times in a row without giving them brain damage and you a broken hand, but I am not going to let that little detail get between me and bloody brawl featuring Bruiser Brody and Abdullah the Butcher. SCOTUS watchers, and the bloated legion of legal academics dedicated to writing torturously long law-review articles on SCOTUS decisions and constitutional jurisprudence, don’t like looking behind the curtain. They still want to believe that even if the fix is probably in, at some moment along the way a justice or two will opt to “shoot” (pro-wrestling jargon for breaking the script and turning the match real) and follow the law—or the most plausible reading of the law—rather than their private policy preferences. When something “shootish” does occur at the Court, such as Justice Roberts’s somewhat shocking (though on a certain level predictable) Affordable Care Act decision from two terms ago, it’s very, very exciting! (Well, for some people it is.)

Anyway, there are plenty of Catholics out there gushing over today’s “victory” for “religious liberty.” There are also others, a bit more realistic in their take, who note, quite rightly, that a 5-4 decision means that Hobby Lobby is ripe for overturning if/when the ideological composition of SCOTUS changes. Assuming a Democrat or moderate Republican makes their way into the White House for two terms starting in 2016, it is impossible to imagine Justices Kennedy and Scalia still being on the Court. Without trying to sound morbid, it would, statistically speaking, be surprising if they were still alive. So whatever (questionable) comfort Hobby Lobby provides today won’t be here to console folks a decade from now.

On the other hand, some observers—mostly liberals—are predicting that Hobby Lobby opens the doors to all sorts of religion-based challenges to ostensibly neutral statutes, but that’s far from certain. Right now the safest read is that the decision provides a narrow exception for a narrow class of businesses to avoid a rather miniscule part of Obamacare. This is not to say that such an exception is wholly unimportant. No Catholic business, and certainly no Church-run enterprise, ought to supply manifestly immoral “health care” to anybody. That’s a fact rooted in truth. But there is nothing about today’s decision which offers any hope that the Church, or American Christianity writ large, is on the brink of stemming the tide of liberalism. The United States did not wake up from its secular slumber this morning in order to bask in the light of Christ. Christian principles remain passé and where there is a clear conflict between the Church and the Zeitgeist, the former should, by contemporary lights, capitulate to the latter. Who is SCOTUS to judge otherwise?

0 Comments

  1. Ita Scripta Est
    June 30, 2014

    Some of the responses make it sound as though this was the greatest victory for Christendom since Lepanto.

    Reply
  2. Cabbage
    June 30, 2014

    A friend toils in Hobby Lobby’s corporate offices. Apparently they were all rounded up for a post-decision meeting that he described as “creepy” and “weird”.

    Reply
    1. Diane
      July 1, 2014

      In what way? Can you elaborate?

      I guess I’m not getting this eeyorish whinging among Christians. So, it wasn’t the greatest victory since Lepanto. So what? It was still a victory. It was a good thing. It was an answer to prayer. I’ll take my small victories where I can get them. And thank God for them.

      Broader question, not necessarily aimed at you, Cabbage; just general: Doesn’t kneejerk cynicism get old after awhile? Would it kill some people to be happy about stuff? Sorry if I sound crotchety, but sheesh. I feel as if I’ve wandered into a Grumpy Cat Convention.

      Reply
  3. Cojuanco
    July 1, 2014

    If the Court is consistent they may well rule for Little Sisters or Belmont. So it is perhaps a portent of things to come?

    After all, it seems the President is taking the very same measures that could have avoided this. That’s,generally a good thing.

    Reply
    1. dianeski
      July 1, 2014

      Belmont Abbey’s right here in my diocese, so it’s close to my heart. (Older son even considered attending there, but the cost of private college is just too high, and their scholarships at the time were pathetic. Since then, they’ve lowered their tuition and beefed up their scholarship program. We have lousy timing. :p)

      Yes, I agree, this could well be a sign of positive things to come. Let’s pray, anyway.

      Reply
  4. jacopo
    July 1, 2014

    I find it troubling that a corporation’s owners get the benefit of reverse veil piercing when their rights are infringed, but are shielded, at the same time, from the corporation’s debts and liabilities. The corporation – all of the rights of real humans, but precious few of the duties.

    Reply
    1. Ted
      July 1, 2014

      You do understand that a corporation’s owners are defined by how much of its assets they hold, assets which have a direct relationship to its debts and liabilities.

      Reply
      1. jacopo.saracini
        July 2, 2014

        Do you understand what limited liability means – liability limited to the extent of an owner’s equity interest in the corporation, not his personal assets in general?

        Reply
        1. Ted
          July 2, 2014

          Why should he be liable for more than his share of the assets? Because it would make you happy?

          Reply
        2. Ted
          July 2, 2014

          Let me see if I can help you out: what are the alternatives?

          A few individuals with a particular knack or ruthlessness accumulate a majority of possible wealth, but they’re fully liable for all the debts and liabilities they incur. But because they control most of the wealth, these will be few, because money that is rare talks loudly.

          A number of individuals can pool their resources, but because each one becomes liable for the debts and liabilities of the whole group, these individuals have to be extraordinarily non-risk-averse, and so there will end up being far fewer of them, meaning that, over time, natural oligarchs (see above) will tend to dominate.

          Still, if you prefer corrupt, centralized, feudally ordered societies, yours is the way to go.

          Reply
          1. Diane
            July 6, 2014

            Best final paragraph ever. OK, well, “ever” in Internet years.

            Progressivism = feudalism. Yep. Agreed.

          2. jacopo.saracini
            July 7, 2014

            Ted, why so overwrought? I merely pointed out an incongruity in corporate law that the majority has adopted by implication: reverse veil piercing to protect the religious sensitivities of the owners of a closely-held corporation. Hobby Lobby’s owners would certainly slap down any attempt by a claimant trying to pierce the corporate veil in the other direction.

            Was the early American republic feudal? I don’t recall reading about Delaware corporations operating back then.

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