I share a lot of the outrage over what the Supreme Court did in this decision. It’s offensive on so many levels to find that a corporation has religious rights. I can accept the concept if the organization is formed for religious purposes — like a church or a support organization formed on behalf of a religion. But to suggest that a corporation formed to run a business and turn a profit has religious rights is to turn the law pretty much upside down. This Supreme Court is making law in the most offensive way imaginable and the impacts may very well be stunningly bad.
But, maybe not. Here’s the critical thing about this that I don’t see most of the outraged individuals recognizing. When it comes to constitutional law, the application of statutes to facts, and what and how Government can make and enforce law, there are certain steps in the analysis.
Among those steps is that the government has to justify their actions as supporting a legitimate government purpose. In Hobby Lobby, that purpose was protecting the health of women. The Supreme Court recognized that purpose.
Then, it has to be determined whether the government’s actions in supporting that purpose infringe on somebody’s rights. In this case, Hobby Lobby’s alleged religious beliefs. I say “alleged” here because before Obamacare, they had no problem with voluntarily covering contraceptives in their company-offered health plan. They also have no problem with investing in mutual funds that invest in companies that make contraceptives. But we’ll leave that all behind and accept that Hobby Lobby has legitimate religious beliefs that were infringed by Obamacare’s contraceptive mandate.
The next step is this: is the government’s action in supporting that legitimate government purpose the least restrictive way to go about it. In Hobby Lobby, the court said no — that the government could cover the costs of contraceptives and thereby not force corporations to cover such costs. And this is the critical piece here.
I’ll take one of the examples that has come up. The Obama administration is about to prohibit federal contractors from discriminating against homosexuals. Certain religious organizations have asked for an exemption because it would violate their religious views to have to employ homosexuals. I’m pretty certain that a court will find that there is a legitimate government purpose in prohibiting discrimination. I’m also pretty sure that a court will not find a problem with the government placing reasonable restrictions on what those companies who receive federal dollars can do. It actually happens all of the time. Government, at all levels, place restrictions and conditions on those who receive government funds — either through contracts, grants, or handouts. So, the question will be … is there a less restrictive way for the government to ensure that federal contractors don’t discriminate? Can’t imagine what it would be. You got any ideas?
And, that’s why I’m not sure the outcome of this decision will be absolutely horrendous. Yes, it’s bad, and it’s another brick in the foundation of this idea that corporations are people. I mean, I am just stunned by the idea that a corporation is now entitled to a right that has always been very individual in nature. But, that less restrictive test is where a lot of these cases will get hung up and the outcome may still end up being OK.