First things first. In the spirit of full disclosure, it must be revealed that:
- I am not an attorney;
- I have never played one on television or in film, and
- I did not stay at a Holiday Inn last night.
OK. With those three caveats out of the way, let's get to this week's topic: Sebelius v. Hobby Lobby Stores, Inc. On its surface, this case, which was argued before the Supreme Court this past Tuesday, is about the Affordable Care Act; not too far beneath the surface, it is about far, far more. What is at issue, according to the Supreme Court Web Site is:
Whether the Religious Freedom Restoration Act of 1993 (RFRA), which provides that the government “shall not substantially burden a person’s exercise of religion” unless that burden is the least restrictive means to further a compelling governmental interest, allows a for-profit corporation to deny its employees the health coverage of contraceptives to which the employees are otherwise entitled by federal law, based on the religious objections of the corporation’s owners.
Put into slightly more user-friendly terms, what is at issue in the Hobby Lobby Stores Case (which also includes Conestoga Wood Specialties and Autocam, Inc.) is whether the federal government, under terms of the Affordable Care Act, can force a corporation to provide their employees health insurance that covers, say, the "morning after pill," when to do so would go against their religious beliefs. In the Citizens United v Federal Election Commission case (2010), the Court held by a 5-4 vote, that corporations are people, endowed, like individuals, with the right to "life, liberty and the pursuit of happiness." Should the court rule in favor of Hobby Lobby et al, they would be taking the further step of proclaiming that corporations also have the right to have their religious scruples protected; i.e. that a closely-held corporation -- and perhaps even a publicly-traded one -- has the legal right to disregard any law which contravenes their religious beliefs or practices. In theory then, a company owned by practicing Christian Scientists, for whom illness and disease are spiritual, rather than physical disorders, could simply say "we aren't going to purchase health coverage for any of our employees, for to do so would go against the tenets of our faith." Then too, a company owned and operated by practicing Jehovah's Witnesses could withhold coverage for blood transfusions with impunity, because based on their reading and understanding of Acts 15:19-20, blood transfusions go against the word of God. Where might all it end? A restaurant owned and operated by members of the Christian Identity movement could deny service to Jews, Muslims and African Americans regardless of what the 1964 Civil Rights Act says, because according to their religious beliefs, Jews, Muslims and African Americans are human "rodents" who carry disease, addiction, cancer and AIDS.
The 1993 Religious Freedom Restoration Act is a major lynchpin in the Hobby Lobby case. That act was passed unanimously in the House and overwhelmingly in the Senate because Congress was upset that the Supreme Court declined to endorse a religious exemption for the use of peyote by members of the Native American Church, which was founded in Oklahoma. In a case from the state of Oregon (Employment Division v Smith), the court ruled that peyote, even if used as a sacrament, is an illegal substance and people could justifiably be denied unemployment benefits if they were fired from their jobs for taking the drug.
“We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate,’’ Justice Antonin Scalia wrote in the majority opinion. Granting members of the Native American Church a religious exemption from the law against taking peyote, Scalia wrote, would “open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind,” ranging from compulsory military service, the payment of taxes, manslaughter and child neglect laws, compulsory vaccination laws, drug laws, traffic laws, minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws and laws providing for equality of opportunity for the races. “The First Amendment's protection of religious liberty does not require this,’’ Scalia wrote. In light of the current case before the Supreme Court, one wonders whether Mr. Justice Scalia still holds to his earlier decision. For if he does, logic dictates that he must vote against Hobby Lobby. Stay tuned . . .
In doing research for this essay, I was shocked to discover that among the 7 dozen or so amicus curiae ("friend of court") briefs filed in this case, none -- NONE -- were filed on behalf of corporations. The amicus briefs (the name given to a brief filed with the court by an entity that is not a party to the case) were put in on behalf of such groups as Agudath Israel, National Religious Broadcasters, the Christian Medical Association, the Family Research Council, the Foundation for Moral Law and Judicial Watch, Inc., and 107 members of Congress (105 Republicans and 2 Democrats). Compare this to the amicus briefs filed in the Citizens United v FEC which, according to one writer, were filed by " . . . every Big Corporate Governance entity from the Chamber of Commerce to Americans for Saving Cute Kittens from Liberal Scum. Inc."
This got me to thinking: why no friends briefs on behalf of American corporations? Might a decision in favor of Hobby Lobby et al involve more than immediately meets the eye? Turns out the answer is yes. Seems to me that a decision in favor of Hobby Lobby -- one which protected its religious rights -- could in essence have an unintended consequence: putting an end to corporate indemnity, thereby allowing law suits to proceed against the owners of a corporation for the illegal or negligent acts of the corporation itself. How so? Well, if Hobby Lobby is a person (as per Citizens United) and the protected religious scruples and beliefs of its owner are transferred to the corporation (as per the current case), then, sequitur the corporation is the owner, and thereby vulnerable to prosecution. As an example, not only is Freedom Industries legally liable to lawsuits stemming from their polluting of the Elk River in West Virginia (the spill that poisoned the entire water supply), their owners -- in this case the Koch Brothers -- are personally liable to being sued. (It works this way: Freedom Industries of Charleston, West Virginia, is distributor of Georgia-Pacific Chemicals Talon line of coal cleaning chemical reagents. In turn, Georgia-Pacific Chemicals is a subsidiary of Koch Industries.)
It would seem that corporate America is wise to the potential Pandora's Box of personal litigation that could be opened by the Hobby Lobby case. For them, it is a matter of ". . . be careful what you litigate for, because you just might get it."
Anyone want to take bets on how long it takes for corporate America to make its case to RATS -- Roberts, Alito, Thomas and Scalia?
©2014 Kurt F. Stone