My view: Burwell v. Hobby Lobby brings US law closer to justice, legitimacy and liberty. I don’t agree with Jacob’s (seeming) argument to the contrary.

I. My Take in More Detail 

As regular readers of BHL know, I have repeatedly supported Hobby Lobby’s request for a religious exemption from aspects of the Obama Administration’s contraception mandate. I’ve argued both that the coercion involved in the contraception mandate cannot be justified to Hobby Lobby, and that Hobby Lobby in no way interferes with or coerces or limits the choices of its female employees, such that they are not using coercion that requires a justification. So on grounds of justice, legitimacy and liberty, there is no good justification for coercing Hobby Lobby in the way that Obama Administration supposes.

As a result, it is my view that Burwell v. Hobby Lobby protects liberty against the power of the federal government. Consequently, the ruling brings us closer to justice.

As for the legality of the ruling, I am not a legal expert, though I have researched religious accommodation law in the US for a few years now. My brief thought is that if you think the Religious Freedom Restoration Act is constitutional, as I think it is, then Hobby Lobby almost certainly has a good case. The contraception mandate places a substantial burden on their religious practice, and the government can secure its compelling interest in providing for women’s health in less restrictive ways. I know there are a number of complications here, but I’ll leave the issues to the Volokh Conspiracy, whose posts have been excellent. I agreed with Megan McArdle’s take on why the case should never have reached the Supreme Court, but should have been stopped ahead of time. I also really like Andrew Koppleman’s take on how the ruling balances religious liberty and reproductive liberty. Koppleman is no libertarian, and is a leading expert in US constitutional law, so it’s worth reading him to get another perspective. His major point is that it should be relatively easy for the administration to extend the same exemption offered to religious non-profits to Hobby Lobby, Conestoga Wood, etc., such that insurance companies will pay for the contraception women need directly, so they’ll get coverage from their insurance companies, but not by way of Hobby Lobby.

Koppleman doesn’t address this, but you might argue that Hobby Lobby, etc. will object to signing the relevant wavers, just as Little Sisters of the Poor have done. The decision speaks to this issue, albeit in a footnote. But note that the Supreme Court has already specified a way that the feds can get notification without authorization on the third party employers’ part when they issued the emergency injunction against the federal government with respect to the Little Sisters. So really, there just isn’t a restriction of women’s choices in this case. It’s not only false to claim otherwise, but unreasonable.

II. Jacob’s Worry 

However, my co-blogger Jacob Levy has a concern. His claim is that while corporations can have rights, it is problematic to hold that the Green family, who own Hobby Lobby as a closely-held corporation, can use Hobby Lobby as a proxy for their personal beliefs. Jacob writes:

But the entity that is Hobby Lobby, a for-profit corporation like IBM, can’t be described as itself having a religious belief. Making sense of that idea requires making the corporate person disappear from the description and talking about the Green family, treating the “closely held” corporation as if it were a partnership or sole proprietorship that doesn’t have a corporate-style separateness from the natural persons. Try as I might, I can’t persuade myself that that’s right. Corporations are persons, or corporations are made out of people– the two thoughts lead to very different conclusions, and I think protecting the former requires rejecting this kind of easy recourse to the latter.

So the reason that Hobby Lobby should not get an exemption is because Hobby Lobby, the corporation, has no religious beliefs. The only way to show that it has religious beliefs is to assume, problematically, that it is a mere proxy for the Greens, not the sort of distant proxy that corporate law says that it is. If Hobby Lobby were a partnership or sole proprietorship, then the legal fiction in question would be close enough to the Greens’ real-world agency to count as their legal proxy and so as having religious beliefs (the Greens’ beliefs). But an organization characterized as a closely held corporation is different by legal definition. At least that’s how I understand Jacob’s argument.

(Here is the IRS’s definition of a closely held corporation.)

Jacob also appears to have a supplemental argument, which is that if we adopt the reasoning he rejects that we will also have to worry about whether we can accept that corporations have legal rights. So to protect corporate liberties, we have to reject the “corporations are made of people” argument. Otherwise, we are committed to saying that corporations can only have rights when individuals that comprise or own them have those rights. And here I think Jacob’s general, scholarly concern with dissolving intermediate organizations’ liberties and cohesiveness is at work (see it in Jacob’s rejection of my worries about Vanderbilt’s religious speech codes).

So here’s the libertarian argument against the ruling: we have an interest, as libertarians, in supporting legal regimes that buttress the authority of intermediary institutions between the individual and the state. But the reasoning behind Hobby Lobby seems to be rooted in an understanding of the corporate enterprise that reduces it to individuals, undermining the ability of corporations to stand as full civil-social bulwarks against state power.

Hopefully I have characterized Jacob’s view correctly. Otherwise, I welcome correction.

III. How Burwell v. Hobby Lobby Protects Religious Intermediary Institutions 

I don’t agree with Jacob, and I think with good reason. Here are a number of thoughts:

(1) Suppose we argue, as I have, that what morally matters in this case is that the religious liberty of the Greens will be restricted by the contraception mandate. They will be compelled, in operating their business, to violate their religious beliefs. I can’t see how Jacob’s argument rebuts this concern. If the contraception mandate applied to the Greens, their religious liberty would be burdened because they could not operate their property in accord with their deepest convictions.

The best reply I can think of on Jacob’s behalf is that what makes it the case that Hobby Lobby is their property is determined by the legal category in which they operate, and since that category is a closely held corporation, which cannot have religious beliefs, then forcing Hobby Lobby to comply with the contraception mandate won’t force them to use their property to violate their religious liberty.

But this can’t be right. The contingent legal categorization of property I own does not seem to have an effect on whether the law’s attempt to get me to dispose of that property is incompatible with my convictions. There are norms other than present U.S. law to determine what isn’t and is my property. As long as we have an agent (like the Green family) who legitimately owns a set of property (Hobby Lobby stores, products, etc.), then that agency can be burdened and contorted, legal category or no. The reason we should restrict religious exemptions to closely held corporations is just because there is a coherent notion of an agent that can be burdened, which is not so clear in the case of publicly-held corporations, whose ownership structure is vastly more complicated, such that the conditions of corporate agency are harder to meet.

(2) I am not as worried as Jacob is about SCOTUS-reasoning-creep. It is hard for me to imagine a way in which the reasoning in this case could be used to, say, undermine corporate rights in other contexts. Just because there is some tension (and I’m not sure there is) between Hobby Lobby reasoning and Citizens United reasoning doesn’t mean it will be resolved, or if it is resolved that it will be resolved in a way that limits the integrity of intermediary institutions. Could Jacob be imagining cases where corporate liberties are denied on the grounds that their owners do not endorse or wish to exercise those liberties? I’m not sure how the worry goes from here.

(3) Third, protecting religious liberty in this case seems to be just the sort of protection of intermediary institutions that Jacob should support. The Obama Administration attempted a striking power grab. Congress authorized the administration to make up ways of enforcing the law, and by a simple sway of a few key advisers (Sebelius and Jarrett vs. Biden and Axelrod), potentially millions of people are subject to powerful, possibly livelihood-destroying coercion. Just about any rebuff of this wild and awesome power seems like a victory in favor of classical liberal civil society. Liberty was preserved against just the sort of administrative-law power-grab that Hayek fans like Jacob should condemn and an intermediary institution’s integrity was preserved. There is no immediate prospect of this ruling leading to the dissolution or weakening of other intermediary institutions.

(4) Finally, and more broadly, the pattern of legal rulings like Hobby Lobby, if followed by additional protections for religious non-profits, will help to sustain a legal regime of broad religious liberty for many across the country. This will go a long way to helping to preserve the public presence of organizations of religious people, which serve as a bulwark against state power in many cases. Religious people won’t be forced to check their religious beliefs at the door when they enter public life, and, in this case, commercial life. This pattern of liberty helps to protect people of faith from attempts by progressives to force them to dirty their hands by supporting or at least not opposing the cultural norms that sustain what many people of faith regard as sinful, even wicked, such as the permission of abortion. A genuinely liberal order does not require this sharp form of privatizing religion. Privatization often cripples intermediary institutions from playing their crucial buttressing role by forcing religious commitments into the shadows. Even atheist libertarians deeply hostile to Christianity can support a public presence of religion in public life for this reason, so long as religious people are prepared to afford a similar liberty to others. And given recent losses in the culture war, my hope is that Christians in particular will increasingly take up this defensive strategy.