Tuesday, April 1, 2014

The Hobby Lobby Case: Cui Bono?

Every now and then I feel wearied if not sickened by the law and the profession to which I belong--which I chose, in fact.  This is indeed the life I've chosen and have led for decades, and little involving the law or its use by lawyers and their clients surprises me now.   For the most part I honor the law and the rule of law in particular.  There are even lawyers and judges I honor.  But there are instances when the law is misused and grossly misinterpreted, primarily for ideological purposes in these dark times.  It seems to me that we see in the efforts of Hobby Lobby to exempt itself from a mandate of the Affordable Care Act such misuse and the potential for misinterpretation which could have serious adverse consequences.

The exceedingly wealthy David Green, the CEO of Hobby Lobby, has apparently claimed that God owns that for-profit corporation.  That is a claim that some would consider sacrilegious and which some like me would consider to be at the least in the nature of an insult to the Deity, if indeed the Deity could be insulted.  But let's assume that Mr. Green, for reasons which are no doubt interesting in themselves, sincerely believes that God is the majority (if not the sole) shareholder of a corporation which seeks to make money from the sale of assorted knick-knacks and craft items.

That's rather hard to assume, however.  If Mr. Green believes in a God which is reasonably similar to the God most believe in, i.e. one that is all-powerful, the creator of the vast universe, all-good, perfect, needing and lacking nothing, it would be incredible for him to believe that such God would have any interest in owning Hobby Lobby, or anything else, or in making money.  If we credit Mr. Green with even a rudimentary intelligence, he could not think the Deity to be so petty, so limited, so mean.

So a cynic like me is inclined to wonder whether this litigation is simply yet another effort to vanquish Obamacare, in this case by cynically maintaining there are aspects of it which are contrary to religious beliefs accorded protection under the law.  In other words, I wonder whether the insertion of religion here is tactical only.

However, it appears that those who, in fact, are the legal owners of Hobby Lobby are religious and believe that they are on a kind of Christian mission to make lots of money in a particularly Christian way--a way which is so very Christian it would, presumably, allow the rich to enter into the Kingdom of Heaven regardless of the fact that it would be easier for a camel to go through (or thread?) the eye of a needle.

Assuming arguendo that the legal owners of Hobby Lobby believe that their employees' acquisition and use of contraceptives (and other "sinful" uses of insurance monies) is an affront to their religious beliefs and prevents them from exercising those beliefs, significant questions remain.  In what sense can Hobby Lobby the corporation (and not, I think it's appropriate to say, the property of God the Great Investor) be said to hold such beliefs, let alone to exercise them, in such a manner as to be entitled to an exemption in this case?

For-profit corporations are, of course, "persons" under the law, generally speaking.  But are they persons holding religious beliefs, exercising religious rights?  If so, are these beliefs and rights being exercised by them in their employee relations (hiring, firing, granting benefits to employees) or when they make money, sell or acquire or own property or assets?  Are corporations religious persons only as to certain things they do, or all things?

The legal fiction of corporate "personhood" was developed to provide a shield or veil behind which a corporation's owner was for the most part protected against liability for corporate conduct.  It is a device by which the corporation is very deliberately distinguished from those who own it.  Here, though, the owners of a corporation are trying to more completely associate the corporation with them at least as to their religious beliefs.  It's likely they are not inclined to accept that their corporation is so like them that they should have liability through the corporation, however.  So, presumably, the corporation is separate from its owners in some respects, but not in others.  The corporation and its owners may share religious beliefs, but would not it seems share liability or assets.

Is it possible for the law to accept that corporations hold religious beliefs and exercise such beliefs for certain purposes only?  Is it possible for the law to provide that corporations hold and exercise religious beliefs only in the case of certain religious beliefs?  There are quite a number of religious beliefs, not all of them consistent, not all of them the product of the same religions, and some of them may well be inconsistent with recognized law.  Should those holding such religious beliefs be entitled to form corporations or other legal entities which would thereby be exempt from the law--not just this law but any law?

The law has no business becoming involved in such considerations, and we must hope that the Supremes and others will comprehend the results of inviting religion into corporate, labor, property and other law in this fashion.  Fear of the resulting legal mess and its implications for the separation of Church and State are the primary reasons for such hope.  But it is also interesting to consider just who would benefit by a victory for Hobby Lobby.  In other words, cui bono?

Obviously, it would benefit employers and owners of employers.  It's difficult to establish that professed religious beliefs are not held, or are held loosely.  Assuming religious beliefs should play a part in the law, what is to prevent employers from claiming religious beliefs once they are seen to be tools by which they may lessen the burden of regulation?  Of course those opposing Obamacare, or perhaps any form of national health care, and those many who hold the President in contempt and oppose Democrats in general, would benefit as well.  As would those who feel there should be no separation of Church and State.

Whatever one's opinion of this President may be, his opponents have an obligation to be responsible in their opposition--even in their opposition to national healthcare which, for reasons not entirely clear to me, they seem to think an example of tyranny.  I'm inclined to think their opposition is often less than rational, and is more a question of money and political power than anything else.  Because their opposition is thoughtless, they have become reckless and care nothing regarding the consequences of their actions provided they disturb the President and his policies.   This effort to ascribe religious beliefs to corporations and other legal entities is very reckless indeed, and I suspect those who support it neither understand what the long-term consequences will be if the litigation is successful, nor do they care what those results may be. 

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