A few more bits and pieces about Hobby Lobby

Some pieces I liked:

Paul Horwitz

Julian Sanchez

Damon Linker


Notwithstanding my worries about the theory of the corporation, I would have favored the Obama administration working out an accommodation; and, like Linker (and, I think, Kevin), I think that a liberal society ought to have a lot of room for institutions of varying moral commitments and internal rules.

Two qualifications– one an admission of something that I don’t think should count as much of a reason, one that I do mean to offer as a reason.

a) I can’t help but feeling a lot of tu quoque annoyance at current religious conservatives’ rediscovery that it’s reasonable for private associations and institutions to have a range of internal norms and commitments, and for that matter at their rediscovery of federalism. I remember all too many Focus on the Family boycott campaigns against firms that dared to offer medical benefits to same-sex couples, mini-DOMAs written so as to disallow private accommodation of same-sex couples, the federal DOMA that overrode the traditional leading role of the states in family law, and the campaign for a federal constitutional amendment to ban same-sex marriage altogether. This reaction lumps together a lot of different actors at different moments, I know. For all I know the Green family opposed every item I just named (thought I’d be shocked). But broadly speaking, the social and religious right from the late 80s/ early 90s through to about 2006 demonstrated no principled commitment to federalism, freedom of association, institutional diversity, or a free range of private choices. For people who supported sodomy laws to now invoke the freedom of private people to now write paeans to the freedom of private persons to follow and act on their own beliefs grates on me. (And, yes, there are particular people I have in mind here who have shown this kind of inconsistency over time.)

I sometimes find myself wondering whether there’s a nearby possible world in which the social and religious right acted very differently during its ascendancy– more Jonathan Rauch, less Rick Santorum– and in which Ross Douthat’s insistence that they should now get to “negotiate the terms of their surrender” in the culture wars would be less galling.

As it is, tu quoque isn’t an argument, and people are entitled to the freedom they’re entitled to, even if they denied other people the freedom they were entitled to when they had the chance. This is just, as Tyler Cowen puts it, mood affiliation– but it’s not quite the mood affiliation that Kevin sees when he wonders whether critics of Hobby Lobby just don’t like religion.

b) A very different concern– which relates to some of the points in the Horwitz op-ed– stems from my appreciation of the virtues of commerce and markets. The doux commerce thesis was (is) that markets and market behavior could help overcome social divisions (religious divisions chief among them!) because they offer positive-sum, relatively impersonal, opportunities for cooperation in which those divisions aren’t relevant. Voltaire:

Take a view of the Royal Exchange in London, a place more venerable than many courts of justice, where the representatives of all nations meet for the benefit of mankind. There the Jew, the Mahometan, and the Christian transact together, as though they all professed the same religion, and give the name of infidel to none but bankrupts. There the Presbyterian confides in the Anabaptist, and the Churchman depends on the Quaker’s word. At the breaking up of this pacific and free assembly, some withdraw to the synagogue, and others to take a glass. This man goes and is baptized in a great tub, in the name of the Father, Son, and Holy Ghost: that man has his son’s foreskin cut off, whilst a set of Hebrew words (quite unintelligible to him) are mumbled over his child. Others retire to their churches, and there wait for the inspiration of heaven with their hats on, and all are satisfied.

This accomplishment of market society is pretty robust but not infinitely so, and I worry that the more we entangle our commercial institutions and our behavior as producers, consumers, employers, and employees with religious/ cultural identity politics, the more we sacrifice of doux commerce. The explicitly religious for-profit corporation wouldn’t be the only offender here, but it would be an offender. So, as I say, this is a qualification to my enthusiasm for associational and institutional diversity.

That wouldn’t by itself be enough to persuade me to reject the idea of the religious for-profit corporation. (The worry applies to sole proprietorships and consumer boycotts, too, but in those cases it’s just a worry about the use to which people put freedom to which they’re certainly entitled.) I reject that idea for the reasons described in my earlier post. I’ll be thinking about Kevin’s response and will write a reply when I can, but for now I wanted to talk about a couple of particular related comparisons: the benefit corporation and the nonprofit corporation.

a) Benefit corporations are explicitly chartered as having moralistic purposes alongside, and potentially in competition with or constraining, their purpose of maximizing shareholder value. They’re allowed in a number of U.S. states. The purposes need not be conservative ones; they can be, e.g., environmentalist ones.

If benefit corporations were to become very widespread, my doux commerce worry would kick in. But in a world where they’re marginal, some people have invoked them as an objection to my view on for-profit corporations: Don’t you admit that a corporation like that can have a moral purpose, in effect a corporate moral belief that might be a religious belief? To which I reply: yes, obviously– but the BC is a hybrid and an exception. The whole point of the category is that it’s a hybrid and an exception. And it seems very strange to me to take an explicitly exceptional subcategory as reason to think that the whole category shares that exceptional trait.

b) Non-profits are constituted by their moral or social purposes. We join together and create them in order to create an impersonal permanent institution devoted to those purposes, institutions that survive changes in personnel or changes of mind among the founders. The Catholic Church is corporately Catholic, in a way that is unaffected by the death of one Pope or the heresy of another or widespread alienation among former believers or whatever.

My claim in the earlier post about for-profit corporations was that describing them as having religious views requires immediate recourse to talking about the natural persons behind the corporate veil. Hobby Lobby “has a religion” only in the sense that the Green family has that religion. Licensing the view that closely-held corporations can “have religions” is always going to require talking about the natural persons who are the majority shareholders of such corporations. If a CHC goes public or is sold to another private owner, or if the next generation of majority shareholders reject their parents’ religion, the corporation’s religion will disappear. The responsibility to shareholders endures– I can’t inherit my parent’s majority share in a CHC and decide that I just feel like wasting the corporation’s assets. But there’s no institutional responsibility to maintain the religion, the way that there is for an official in a church. (Again, this is probably different for benefit corporations, but they’re an exception.) (See also.)

Non-profit corporations do, and for-profit corporations don’t, have an impersonal, institutional, potentially perpetual commitment to moral/ social/ religious purposes. To say that a CHC has such a commitment is very different; it’s only a personal commitment among the majority shareholders.

  • Mike Wasikowski

    “I would have favored the Obama administration working out an accommodation.”

    Yesterday, the 11th Circuit Court issued an injunction against the accommodation as applied to the Eternal Word Television Network; Judge Pryor specially concurred with the injunction by calling it “rubbish” to say that filling out the form expressing a religious objection to contraceptive coverage did not itself trigger contraceptive coverage that EWTN objected to. He further stated that “[E]ven if we assume, for the sake of argument as the Supreme Court did in Hobby Lobby, that the mandate serves a compelling governmental interest, the accommodation provision is not the least restrictive means to address that.” What other kind of accommodation could HHS have proffered?

    • Bob Smetters

      Wheaton College in Il. has a case on that right now. They refuse to sign the form allowing the insurance company to pay for contraceptives… Seems like it is more about forcing your beliefs on others.

  • Jason Colby

    I’m not sure I understand the distinction you’re drawing between non-profits and for-profits. Yes, future owners of Hobby Lobby might decide that all contraceptives etc, are just ducky. But mightn’t future leaders of, Greenpeace come to similar decisions regarding the hunting of whales? Both groups have commitments now, and both groups might change those commitments in the future.

    • jtlevy

      The future leaders of Greenpeace would have a prima facie reason to resign as leaders of Greenpeace if they reached that conclusion. The heirs of the Greens don’t have any prima facie duty to resign as heirs, or to go find potential buyers of the firm who happen to share their parents’ beliefs.

      The officials in a nonprofit take on a duty toward the nonprofit’s enduring purposes. Yes, there will be evolution; yes, there will be breaches. But the association isn’t theirs to do with as they see fit. To be an official is to (in principle) subordinate your preferences to the good of the institution, to execute the institution’s purposes. “Owners” aren’t “officials,” and the only duties in sight are the fiduciary duties to minority shareholders.

      • Sean II

        “The future leaders of Greenpeace would have a prima facie reason to resign as leaders of Greenpeace if they reached that conclusion.”

        Now you’re just tying a noose for yourself. At this point you’re creating a principle that says: “Non-profits shouldn’t change their minds”.

        That is deeply ridiculous.

        Don’t bite that bullet, Jacob, spit it out and start over.

    • Sean II

      Great example. A smart free-market oriented leader of Greenpeace might one day point out that a market in whale meat is a better guarantor of whale survival than a ban on whaling.

      To him Jacob says: “No way. The association of Greenpeace isn’t yours to change. You must resign instead. Sorry.”

      Damn, people will do some crazy ass shit to avoid backing down!

    • Theresa Klein

      Excellent Example, considering GreenPeace started off as a group advocating nuclear disarmament, and mission creeped their way into opposing whale hunting in the first place.

  • db

    I still think your distinction between for profit and not profit is one without a difference. I once sang for a non-profit corporation choir. We certainly didn’t have any beliefs. The corporate form was useful for continuity and accounting. Non-profit simply meant we couldn’t pay out dividends (and correspondingly didn’t pay taxes). But the choir sought profit merely for its own survival. Hobby Lobby is clearly run (paying employees above minimum wage, shutting stores on Sunday) with a distinct christian mission. Because the Green’s chose a corporate form that can pay out dividends, that corporate form should have fewer rights? As determined by . . . whom? This still strikes me as odd. Either corporations have certain rights (I am on the fence here) or not, but the profit non-profit distinction seems to me to be a poor one.

    • ThaomasH

      I agree that neither
      the profit-non-profit nor the closely held/public corporation distinction is relevant in
      this case..

      The employee’ own wages are used to purchase health insurance. The role of the employer is a quirk of history arising from WWII wage
      and price controls. Having an “employer” had become, until
      ACA, the only vehicle by which that people could receive the tax subsidy for
      purchase of health insurance and have access to an insurance pool not subject
      to adverse selection. Unfortunately, ACA only weakened but did
      not break this employment-tax subsidy link.

      But the involvement of an employer
      should not be thought to create an interest of the employer in the coverage of
      the health insurance. The insurance is just an in-kind portion
      of the employee’s wage and the employer should have no more control over the
      selection of coverage than over the selection of food the employee purchases
      with the cash portion of her wage.

      • Sean II

        That, at least, is a genuine argument. One might even expect libertarians to sympathize a bit, since you base it on the perverse effect of prior government intervention.

        I’m just glad you’re not saying “Uh, well…it’s different…for profit, mumble, mumble…closely held, ahem…and there you go!”

        Problem for you: you’d have to extend the argument to other types of in-kind consideration. For example, let’s say a department store buyer gets paid $5,000 a month + $500 store credit.

        One day she complains that she’d like to buy a bottle of whiskey with her store credit. The store says: “we don’t carry that, you can’t get it from us, why don’t you buy it with the cash portion of your compensation?”

        She says: no, you must carry whiskey if I want it. An employer should have no more control over what I buy with my store credit than it has over what I buy with my cash.

        See the trouble?

        • ThaomasH

          I’ll burn that bridge when I come to it.  🙂

          I do have some doubts about (but not hostility to) corporations, even closely held ones, enjoying the same rights as its owners.  Those doubts arise from concerns about how well the internal governance of a corporation aggregates the interests of its shareholders.  This has evolved over hundreds of years of case law with respect to the economic rights of shareholders, not so much rights of religious exercise, speech, bear arms, etc.
          But I think the “it’s not their money” should have been decisive in this case.  [I have not read the pleadings and amicus curiae briefs.  I wonder how forcefully the argument was advanced.  The Justices did not seem to address it.]

      • Sean II

        Simpler way to put that: the essence of in-kind consideration is that it’s NOT perfectly fungible like cash. Saying that it should be exactly like cash is like saying there should be no such thing as in-kind consideration.

        • ThaomasH

          Ideally there would not be, at least not an important tax favored one.

      • Theresa Klein

        Unfortunately, ACA only weakened but did
        not break this employment-tax subsidy link.

        The ACA strengthened the employment link, by (A) making it mandatory that employers offer health insurance to their employees, and (B) denying insurance subsidies to employees who didn’t take advantage of their employer’s insurance.
        A person whose employer offers them insurance may go onto the exchange to purchase insurance, but they get neither the subsidies nor a tax deduction. It’s effectively meant to force people to use the employers insurance, if they can.

        • Sean II

          Good point. I think Thaomas might be thinking of some early drafts, and not the bill which actually passed.

      • Jerome Bigge

        I agree. Employer provided “benefits” came about because of wage and price controls during WW2 didn’t allow employers to pay higher wages to attract workers (unemployment was virtually nil during WW2), so employers started offering tax free benefits instead of higher wages. Effectively the benefits were a replacement for higher wages which weren’t allowed at the time due to wage and price controls. It would thus appear that the benefit comes as a “replacement” for higher wages. With some employers you can actually choose to take higher wages instead of benefits, although this isn’t something most people would do.

        Benefits are tax deductible to the employer and tax free to the employee. This is also why labor unions will sometimes push for more benefits instead of higher wages. The benefits are tax free to the employee, whereas higher wages mean higher taxes.

        There is also the question whether or not denial of benefits could be seen as an attempt to force the employer’s belief upon his or her employees. It is generally illegal to discriminate upon the basis of race or religion with the exception of actual religious organizations. Hobby Lobby however is not a religious organization, but a “for profit” business operating as a corporation. Granted, it is likely only a corporation for legal reasons, as the majority of stock is held by a family, much like Walmart is “owned” by the Walton family.

        The Supreme Court decision was very close, and was divided by the political beliefs of the justices, with the conservatives ruling one way and the liberals ruling the opposite way. So the decision might not stand for long if there is any change in the makeup of the court.

        • ThaomasH

          I would add two points to Mr Bigge’s analysis.  First, for the employer, it’s the same whether it pays a wage in cash or by transacting for health insurance, free parking/transportation subsidy, etc.  The tax benefit accrues to the employee, and is more valuable to the employee with the higher marginal tax rate.  Second, so far as I can tell, even the Justices who ruled against Hobby Lobby did not do so on the principle I have been arguing for.

          • JoshInca

            First, for the employer, it’s the same whether it pays a wage in cash or by transacting for health insurance, free parking/transportation subsidy, etc.

            That’s not quite true, because increasing an employee’s pay by the amount of the benefit would also increase the employer’s FICA tax liability. Making it cost neutral to the employer would require a salary increase of only 94% (or so) of the benefit’s cost.

  • M Lister

    I’m sympathetic to all of this, but would add that it’s really only a tiny group of people who have any principled pro-federalist position. The vast majority of it always has been, fairly transparently, garbage, often, though not always, a more acceptable way to express one’s bigotry. I have a lot more sympathy for certain sorts of federalism and localism than do many people whose views I tend to share, so I’m sorry that principled supporters are so few, but it’s obvious that they are.

  • Ethan Pooley

    I have to disagree pretty strongly with this. The profit / non-profit divide is very much simpler, and has nothing necessarily to do with mission. A better measure of whether a corporation has a mission would be its tax-exempt status. Not all non-profits have a tax-exempt status.

    Furthermore, a profit corporation’s mission is, plainly, whatever it’s directors say it is. And the directors who get to decide this are whichever ones the shareholders elect. Cases where minority shareholders have succeeded in claims that the majority was not sufficiently profit-oriented have been in companies whose by-laws made no mention of any mission whatsoever. An overriding profit focus is therefore better described as the default, but not the only possible focus that should be imputed to a profit corporation.

    None of this treats LLCs. An LLC has most of the attributes that are supported/disputed with regard to personhood, liabilities, and so forth. But the assumption of profit-orientation there is even lower, as those entities are used to create a wider range of organizations.

    Many mission-driven organizations have been formed as profit corporations or LLCs, and have even eschewed tax-exempt status. The most accurate statement I know how to make on this topic is this: that profit corporations and LLCs can be formed for any reason under the sun. It just happens to be good practice to state clearly what those reasons are, to bolster the company against challenges from within.

  • Sean II

    You still haven’t given a reason why for-profit corporations should be treated differently.

    You seem to suggest – giving clarity a wide berth – that it comes down to the fact that for-profit corporations can change their “moral/social/religious purposes” when the people who own, share, and manage the corporation come or go.

    That won’t do. The Catholic Church, to name an obvious example in light of recent events, clearly can change its “moral/social/religious purposes” when it gets a new CEO or a new set of stakeholders. So the difference between non-profit and for profits can’t have anything to do with changeability over time. All organizations can change. Indeed, the classic story of charitable non-profits is that they start out with one purpose and mission creep their way into another. You don’t seem to think this entitles them to any fewer rights.

    Please try again. If there’s something about the profit motive you distrust, or find shabbier than other motives, why not simply say what it is…and say why it should cause for-profits to receive a lesser degree of scrutiny for their rights.

  • casualobserver

    Whether your legal and political sensitivities agree or not, it seems SCOTUS has become relatively set in the precedent that corporations are “persons”. This ruling seems to be consistent with that view even though RFRA gives them an even more convenient federal statute to base their ruling on. I’m not getting this whole need within the media and blogosphere to either make this into some great watershed legal event (a la Ginsburg) or to cause a philosophical re-examination of the corporate form of enterprise as does this piece..

    • Artifex

      I am not seeing this. Is it possible to provide some documentation for this statement other than the minority opinion whose objective is to poison the well ? The following is from SCOTUS Blog as a quote from the majority side:

      As the Court recognized, “[a] corporation is simply a form of organization used by human beings to achieve desired ends.”

      That seems to indicate that at least the majority thinking was definitely not based on corporations being persons.

      I get the impression that the corporations are persons meme is simply a classic strawman in the sense that it is easy to assault and not really what the majority stated.

      • Farstrider

        From section III.A of the opinion:

        RFRA prohibits the “Government [from] substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability” unless the Government “demonstrates that application of the burden to the person-(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. §§2000bb-1(a) , (b) (emphasis added). The first question that we must address is whether this provision applies to regulations that govern the activities of for-profit corporations like Hobby Lobby, Conestoga, and Mardel.

        (Each time the word “person” appears in the above quote it is italicized.) So, it was not a strawman, it was the “first question” the court looked at.

  • Theresa Klein

    Don’t people on the left generally WANT corporations to exhibit a “social conscience” ? I thought that was a big thing – getting corporations to behave in socially responsible ways. If it’s acceptable and admirable for corporations to advocate and enforce environmental sustainability or social justice policies, why is it wrong for them to have religious policies?

    What, really is the difference? Other than the fact that Christian religious values are unfashionable?

    If you’re going to celebrate DELL’s energy efficiency policies, you can’t reasonably object to Hobby Lobby’s right to oppose morning-after pills.

    • AP²

      Don’t people on the left generally WANT corporations to exhibit a “social conscience” ?

      Generally not when it goes against the democratic will of the people (as much as any law is a representation of such, but that’s a different issue).

      • Theresa Klein

        So you’re basically saying that majorities can impose their moral and religious values upon minorities. Are you’re totally ok with that?

        • AP²

          I’m ok with that in the same way that I’m ok with the existence of gravity. “There is no good in arguing with the inevitable.”

    • Evan Neely

      “It seems to me that some people are all in favor of corporations having moral values, right up until they happen to disagree with the specific moral values in question.”

      Yes, exactly. And the conclusion I would draw from this is not yet another tu quoque argument, but that we ought to ditch proceduralist arguments altogether, at least when we’re arguing about philosophical fundamentals. No one is actually making claims about procedure when we get down to brass tacks; people introduce proceduralist arguments (as well as tu quoque arguments, and a vast array of other erroneous forms of argument) as part of a rhetorical strategy that’s often fraudulent. But this cuts both ways. I’ll gladly drop my use of pseudo-proceduralist arguments only in favor of corporations that exhibit the moral values I happen to like if you do. Until then, prepare for more “hypocrisy.”

      • Theresa Klein

        When exactly have libertarians actually done that? I think we’re pretty consistent about rights being universal and equally enforced. That’s been a central tenet of our arguments for a long time.

        • Evan Neely

          Libertarianism is one big procedural it’s argument. Arguments about rights are arguments that a certain set of rules must be instituted regardless of consequences. In fact the entire rhetoric of libertarianism is a disguised claim in favor of a certain set of rules proclaimed ‘natural’ rights.

          • Theresa Klein

            Not all libertarians use natural rights arguments. I for one do not. I think the set of rights which libertarians argue in favor of is justifiable on consequentialist and humanitarian grounds. For instance, the right to act in accord with one’s conscience is a good that advances human happiness and social harmony. That right was secured only after centuries of warfare amoung conflicting Christian sects over whose religious values everyone would have to obey.
            Whatever good you think might come of forcing minority Christian sects to pay for things they feel are immoral, once you establish that precedent, it can be used to promote all sorts of values you don’t agree with. And I don’t think that you would want to live in that society.

          • Evan Neely

            1. All libertarians seem to be true Scotsmen.
            2. Everyone is a consequentialist libertarian until liberty leads to bad consequences.
            3. This is not a minority Christian sect being forced to pay for things it doesn’t like. It’s a corporation getting all the entitlements of operating in the public sphere (police protection, legal protection, etc) asking not to have to comply with the rules there. It just happens to be owned by radical Christians. Who aren’t forced to run a business and take legal protections in the first place.
            4. By libertarian definitions of ‘force’ my money is already used to pay for all sorts of things in this society that I don’t like, including the protection of hobby lobby and less-than-universal health care.

          • Theresa Klein

            The “rules” of operating the public sphere ought to treat people justly, not treat them purely as mechanisms to achieve the policy goal of the week. They aren’t asking for an exception from the rules, they are asking for the rules to be fair and just.

            Also, It seems to me you have no problem paying for things you don’t like via taxes, as long as other people are forced to pay for things they consider murder, indirectly. What sort of person does that make you?

          • Evan Neely

            Oooh – good work with that last sentence. It really makes me look like an asshole while still upholding the pretense of Hobby Lobby’s innocence. But it’s also bullshit. You’re essentially arguing that people now get to define the nature of physical actions; one of the central issues in this particular case is that Hobby Lobby is arguing that these contraceptives cause abortions and the entire medical profession says they don’t. Even if they did cause abortions, that doesn’t mean Hobby Lobby gets to define abortion as murder just so it can get around the law. If we’re all socially able to define actions according to our own moral standards (we are of course cognitively able to do this but it doesn’t make it right) then society pretty much collapses – especially if we let people do this disingenuously, as I think Hobby Lobby is doing here (because they refuse to acknowledge the basic science of the procedure – if it was “making them pay for abortions,” actual abortions, I might not think they were dishonest, although I’d still disagree with the claim). Feel free to fire back with yet another boring libertarian claim that everyone else but libertarians is a borderline psycho who likes to boss people around.

  • Jerome Bigge

    The real problem when you get down to it is “employer paid health insurance” as opposed to individual coverage. The problem started during World War 2 when employers had to compete against one another for workers. The government had imposed wage and price controls so competition based upon wages was outlawed. However “benefits” weren’t included in the wartime controls, so employers could offer more “benefits” in place of higher wages. Additionally, the employer could deduct the cost of such benefits from their income tax and to the employee, these benefits were “tax free”, unlike taxes on income.

    However, because the employer was the one buying the “group policy” for the workers, the employer could decide what level of coverage that would be provided. Along with what medical services would be covered and what would not be covered. However under Obamacare the employer does not have a choice as to what will be covered or what will not be covered. This is where the “conflict” occurs because Hobby Lobby did not want to provide coverage for medical services that would induce abortion. Hobby Lobby was in fact apparently (from what I’ve read) willing to cover most contraceptive services, but none that in the eyes of the owners of Hobby Lobby could be used to induce abortion or miscarriage.

    The legal question here was whether or not an employer had the right under the law to deny certain benefits to their employees that the employer did not wish for religious reasons to provide. Depending upon your own beliefs, some would say that the employer has no right to deny otherwise legal benefits to their employees. While others would say that the employer has First Amendment rights not to be forced to provide benefits that they consider to be against their own religious beliefs.

  • ThaomasH

    My objection is to an employer taking advantage of being the sole channel through which its employees can receive the tax subsidy for health insurance (a bad feature of US health insurance finance system that ACA weakened but did not overturn) to try to impose ITS religious (or philosophical or whatever) views of what kind of coverage its employee can have. Health insurance is just an in-kind portion of the employee’s wage. Firms do not “give” it or “provide” it or “subsidize it. The insurance is paid for with the employee’s money and the employer has no right to interfere with what is covered.

    • Theresa Klein

      Hobby Lobby is not responsible for it being the sole channel through which it’s employees can get tax deductions for health insurance. That’s the government’s fault. And you might consider that it isn’t their objective to prevent their employees from getting Plan B, but only that they feel they would be morally culpable in an abortion if they covered it. Can you not understand that?

      • ThaomasH

        I agree that Hobby Lobby is not at fault for creating the situation.  I fault them for injecting their religious beliefs into the decision about what is covered by the employee’s health insurance.  Considering their minimal involvement — its not their money and not their health — the employer’s wish not to be associated with the choice seems to pale compared to the employees’ rights.

        • Theresa Klein

          It is their money. They are paying for the insurance. That’s what makes them morally culpable. This is no different than many liberals belief that if you purchase products from certain companies you are morally culpable for how those companies treat their workers, or the animals in their care.
          Would you favor a law that required Whole Foods to purchase it’s meat from factory farms?

          • ThaomasH

            I dispute that the employer is using “its money” for the insurance.  I see it as the employee’s money.
            And yes, if Whole Foods were by a unique supplier of meat and most consumers wanted factory farmed meat, I think it would be wrong for Whole Foods to insist that its sensibilities ought to override those of the consumer.  I think it should think of itself and behave as an agent for the consumer/employee for the purchase of the meat/health insurance.

          • Theresa Klein

            How the heck would Whole Foods get to be a unique supplier of meat if most consumers wanted factory farmed meat?

          • ThaomasH

            I don’t know it was your example.

          • Theresa Klein

            You do know. It could only happen if the government passed a law that made Whole Foods the sole supplier of meat.

            Now wouldn’t it seem just slightly mendacious for the government to force Whole Foods to become a monopoly, and then use that as an excuse to force Whole Foods to sell factory farmed meat?

            And isn’t that essentially what the ACA does to Hobby Lobby?

          • ThaomasH

            “Government” does things as the outcome of a messy back and forth of ideas and interests with results that are so bad it should be kept out of things except when there is a good reason.
            Looking at the big picture I agree with you.  Government in a long series of moves created a system that by 2008 resulted in people in stable employment with reasonably sized companies getting health insurance through their employers and receiving a tax subsidy for it because the firm transacted for the insurance and the value of the insurance was not taxed as income to the employee.  It was expensive (and probably because it was not transparent, arguably more expensive than people would chose if they were just receiving taxable wages and buying insurance individually), but people with insurance were fairly happy with the system.
            The problem that many people saw with this system was that people who did not fit this model (steady employment with “big” firms) had no way to get access to the subsidy and the individual insurance market was “bad” in that is was subject to adverse selection.  In 2008 there were lots of ideas about how to reform the system.  Ultimately Congress adopted the Romney care system which left the system for people who “fit the model” with little change (“If you like your insurance, you can keep it”) but created an alternate way for others to buy insurance, with subsidies for those with low incomes. People would buy that insurance (several levels but all containing certain minimum coverage which in the regulations included contraception) on “exchanges.” To make the alternative work it was thought you would need to “mandate” that everyone have insurance and (to preserve the system for those that “fit the model”) to require larger firms to continue to transact for health insurance.  Add expansion of Medicaid and, voila, you have ACA.
            My contention is that within that system, it makes no sense, it is unjust, to let employers act on their opinions (even if it is based on their sincere religious or philosophical beliefs) about what is covered by the employee’s insurance.  I see the employer (and I think Hobby Lobby ought to see itself) as a passive agent who takes the employees wages and transacts for health insurance (that meets ACA regulated minimums that include contraception) for the employee so that the employee can still receives the tax benefit of in not being counted as part of her taxable income.  Consequently, I think SCOTUS erred in the way it viewed the relative rights of employee and employer.  BTW, for purposes of this analysis, I do not see any difference between for profit and not-for-profit or between closely held and not closely held firms.
            Personally, I’d like to see the system evolve toward more and more people getting their insurance from the exchanges or (directly from insurance companies) buying it with taxable wages and receiving subsidies if they are poor.  In that system owners of firms like Hobby Lobby would not need to feel they were somehow complicit in the sins of their employees.  But until then (or until HHS can come up with an obfuscation that lets employees of Hobby Lobby get the same kind of coverage that employees of other firms have), I think SCOTUS has allowed Hobby Lobby to commit an injustice with its employees.

          • Theresa Klein

            Sometimes the messy back and forth of idea results in horrible injustices. Such as forcing people to violate their beliefs because it seems to be a convenient way of achieving a policy objective.

            You can’t just wave that away because “blah blah we got this system through a messy and complicated process and that’s just the way it is so Hobby Lobby should suck it up.”

            The correct thing to do is to not compel employers to pay for their employees health insurance in the first place. Consider all the energy the left is pouring into forcing Hobby Lobby to do something they find morally abhorrent, and consider spending that energy on replacing the tax deductions for employer-baser insurance with tax deductions for individual policies? Would that be so hard?

          • ThaomasH

            I agree on the whole loaf, but not the half loaf.  I think removing the employer mandate would be good policy because I think it would be more transparent and fair (as it is the subsidy is worth more to higher income workers) and would lead to more and more firms no longer transacting for their employees’ health insurance.  But given the system in which employees can only get the tax subsidy if the employer transacts for the insurance, it is an injustice for the employer to act on its opinions about what coverage the employee ought to have or ought not to have.  Again, it’s not the employer’s money and it’s not the employer’s health.
            People are generally confused about payroll deductions, not just health insurance.  Many people, employers and employees, probably, believe that the employer “pays” part of the social security tax and the Medicare tax.  I’m guessing that Hobby Lobby’s owners naively think that they are “paying for” the employees’ health insurance and that imposes on them an obligation not to pay for something they think is sinful for the employees to use.  The surprising thing is that SCOTUS apparently has made the same error.

          • good_in_theory

            Then they are also morally culpable for paying wages to employees who are godless BC using heathens and their moral complicity changes not one jot because of the law.


      A tax deduction is not the same as a dollar-for-dollar tax credit. When I give $100 to charity, it might save me $30 on my taxes. Does this mean I am not using my money to give charity?

      • ThaomasH

        I just mean that the tax system is such that if an employer transacts for the employee’s health insurance the employee does not pay tax on that portion of her income whereas if the employer pays her the same cash that she could uses for insurance, she does.  How does this create a right of the employer to have an opinion on what the insurance should cover?


          Gee, because its mostly the employer’s money. It’s like if the government dictated to me that I have to contribute $100 to the state’s favorite cause, and when I resist, you come along and say, “why do you get to have an opinion about where the money should go.” Because: (i) coercion of this sort is wrong and (ii) it’s mostly my money. Understand?

          • ThaomasH

            I disagree with your analysis.  I say health insurance is purchased not at all with any of the employer’s money.  Mr Bigge explained it better than I have.  The history of WWII wage controls and the tax advantage to the employee is responsible for the system in which the employer uses some of the employee’s wage to transact for health insurance.  That transaction does not make it the employer’s money and it’s sure not the employer’s health.

          • MARK_D_FRIEDMAN

            One final try, by way of example. Say I hire you as my butler at the going rate of $1000/week. Your compensation does not include health insurance. Now the government dictates that I provide you with health insurance, which costs me $200/week cash. If your wage remains at $1000/week, plus health ins., I am now paying $200 extra for the same set of services. The $200 is my cost–surely you can see that, right?

            Now, if after the mandate, I am able to reduce your wages to $800 with health ins, then the insurance came out of your wages. But in a competitive market for labor it is absurd to think that ALL the marginal cost is absorbed by the employees. If this were so, then every time the state imposed an additional cost through a new regulation, compensation would fall. So, at least SOME of the cost of health ins is borne by the employer. This is why the employer should have “some opinion.”

          • ThaomasH

            I think the additional regulations reduce cash wages only if they are to give more in-kind income to workers; that leave total compensation unchanged (assuming workers did in fact value the in-kind income).  A regulation that just made it more difficult to do business would reduce both cash wages and profits.

  • SamChevre

    [adding numbering for clarity]
    1)Focus on the Family boycott campaigns against firms that dared to offer medical benefits to same-sex couples,
    2)mini-DOMAs written so as to disallow private accommodation of same-sex couples,
    3)the federal DOMA that overrode the traditional leading role of the states in family law,
    4) the campaign for a federal constitutional amendment to ban same-sex marriage altogether.

    I think that three of these have nothing to do with legal federalism and private actors with various commitments.

    The first is a straightforward part of institutions with diverse goals; there’s no contradiction at all between saying “it ought to be legal to do X (e.g. sell alcohol)” and saying “but I think X is very harmful and won’t buy from you if you do it.”

    The second would be contradictory if it had to do with private institutions; if such happened, it was not fitting with the principles. However, most of the cases I remember were about mini-DOMA’s applying (as DOMA did) to state agencies and state-run institutions; I don’t think there’s the same interest in state agencies having a diversity of viewpoints within a single state that there is for private institutions.

    The third and fourth seem to be federalism done right–explicitly stating what the federal government will do when there’s a conflict among the states (DOMA) and using the formal prescribed process to shift a decision from the states to the federal government.

    None of these consist of making stuff up without any democratic process and claiming it has the force of law, then forbidding any private actor from acting in disagreement.

    • adrianratnapala

      As far as I understand, you are right about 1 and 2. For the rest you are right that they come out of a valid democratic process, but that isn’t enough.

      But not for #3, that’s wrong. The states have always had different marriage laws, and for the US, the definition of marriage was “married according to laws of whatever state you did it in”. Perhaps polygamy was an exception. I don’t think it right to treat states with gay marriage in the same way that Utah was treated back then.

      #4 is a matter of people trying to use good democratic methods to do something that shouldn’t be done. Happily they never came close to success. All the more reason to believe those methods have something going for them.

  • Bob Smetters

    I am sure they will support Catholic employers getting exemptions from immigration laws, won’t they?—

    ” Persons have the right to immigrate and thus government must accommodate this right to the greatest extent possible, especially financially blessed nations: “The more prosperous nations are obliged, to the extent they are able, to welcome the foreigner in search of the security and the means of livelihood which he cannot find in his country of origin. Public authorities should see to it that the natural right is respected that places a guest under the protection of those who receive him.” Catholic Catechism, 2241.

    In January 2003, the U.S. Catholic Bishops released a pastoral letter on migration entitled, “Strangers No Longer: Together on the Journey of Hope.” In their letter, the Bishops stressed that, “[w]hen persons cannot find employment in their country of origin to support themselves and their families, they have a right to find work elsewhere in order to survive. Sovereign nations should provide ways to accommodate this right.” No. 35. The Bishops made clear that the “[m]ore powerful economic nations…ave a stronger obligation to accommodate migration flows.” No. 36.

    • Theresa Klein

      Bryan Caplan has pretty clearly argued that immigration laws DO violate the rights of employers.
      As have many other libertarians.

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