The Age Of The Corporate-American

"How is not buying you something imposing on you?" asks Megan McArdle while discussing the Hobby Lobby ruling. How can people think they can tell other people what to buy?

Cards on the table: I think that institutions Hobby Lobby and Little Sisters of the Poor are obviously correct -- they are being forced by the government to buy something that they don’t want to buy. We can argue about whether this is a good or a bad idea, but the fact that it is coercive seems indisputable. If it weren’t for state power, the Little Sisters of the Poor would be happily not facilitating the birth-control purchases of its employees; the Barack Obama administration has attempted to force them to do otherwise. The U.S. Supreme Court has ruled that this coercion violates the Religious Freedom Restoration Act, and it must therefore cease.

If the government had only butted out of religious people's lives there wouldn't be a problem, McArdle says. By forcing insurance companies to cover birth control the government got what it deserved.

You have a negative right not to have your religious practice interfered with, and say your church forbids the purchase or use of certain forms of birth control. If I have a negative right not to have my purchase of birth control interfered with, we can reach a perhaps uneasy truce where you don’t buy it and I do. But if I have a positive right to have birth control purchased for me, then suddenly our rights are directly opposed: You have a right not to buy birth control, and I have a right to have it bought for me, by you.

Now, isn't that reasonable and fair? People have the right to practice their religion as they see fit. The government has the right to pass laws. It's just a matter of fairness. Hobby Lobby as a corporation should have the same rights as Mr. and Mrs. Green as individuals and Hobby Lobby should be able to run according to the religious beliefs of its leaders.

Why only birth control? Because pre-marital sex is wrong according to the Greens' religion. Now, this is where I admit to some confusion. Health insurance covers Viagra and some of the men who use Viagra are not married. That is wrong and, inexplicably, has escaped the notice of the owners of Hobby Lobby. We know it is okay to profit from the manufacture of Viagra and refuse to cover the cost of Viagra because some of its takers are single. It is only wrong to help pay for Viagra, and yet our religious personage we know as Mr. Hobby Lobby does not refuse to pay for it at all. Why could that be?

 State power is forcing Hobby Lobby's owner to put out money for birth control and they don't want to. They will profit from owning stock in birth control manufacturers. They will profit by refusing to pay for drugs that they are being reimbursed for. That's okay. No problem with facilitating the taking of birth control there. But partially paying for birth control--that is wrong.

McArdle states in this article, "This post is also already too long for me to explain that I’m aware that I’m simplifying quite a lot here and to explore some of the potential complications." But she was able to explore the complications in the past, so let's take a look at the McArdle Justifications For Corporate Religiosity:

People on the Internet seem to have a lot of thoughts and questions about Hobby Lobby. Here are some answers, to the best of my ability.  

1) What can stop a company from arguing that it is against the owner's sincere religious beliefs to pay workers a minimum wage? The Religious Freedom Restoration Act is not a blank check to religious groups to do what they want. The law says that the religious belief must be sincerely held, and also that the government can burden the exercise of that belief if it has a compelling state interest that cannot easily be achieved in any other way. That's why no one has successfully started the Church of Not Paying Any Taxes, though people have been trying that dodge for years.  

2) How can we tell if a belief is sincere? Hobby Lobby closes its stores on Sundays and otherwise demonstrates a pretty deep commitment to fairly stringent Christian values, of which opposition to abortifacients is often a part. There will always be some gray area, of course, that allows people to claim special treatment for spurious beliefs, but the government has done a fair job over the decades of sorting out genuine beliefs from obvious attempts to dodge the law. Hobby Lobby seems to fall pretty squarely within the "sincere belief" camp.

Phew! That's a relief! So because Hobby Lobby is closed on Sunday, we don't need to question any of its owners' beliefs or practices. Such as:

Before the court case, the Greens were already considered a first family of Pentecostalism because of their largesse and the example they set as Christian business owners. Hobby Lobby, based in Oklahoma City, has about $3 billion in yearly revenues and donates millions of dollars in profits to charity. The Greens close their stores on Sundays so employees can attend church or be with family, and they pay full-time employees a minimum of $15 per hour. The family buys full-page newspaper ads each Christmas and Easter to emphasize the religious beliefs behind the holidays and advertise a Christian ministry they support called Need Him. They have spent tens of millions of dollars to buy vacant buildings, land and entire campuses, which they have given away to churches and religious colleges.  

Yet the family's profile began rising far beyond Christian circles around 2008, when Mart Green, David's son, spent about $70 million of the family fortune to rescue Oral Roberts University, the Pentecostal school in Oklahoma that was engulfed in a spending scandal and burdened with tens of millions of dollars in debt. Mart Green told The Associated Press that year he stepped in because, "if ORU goes down it affects all the Christian colleges." The Greens drew even more notice for their plans to spend hundreds of millions of dollars to create a Bible museum on land near the National Mall in Washington, which will display the family's massive collection of biblical artifacts, including ancient texts. Steven Green, David's other son and president of Hobby Lobby, is also spearheading the Green Scholars Initiative, which intends to place a Bible-based academic curriculum in the nation's public schools.

So when Hobby Lobby says that their property taxes should only pay for vouchers for religious schools or charter schools and not go to secular school, that's okay. After all, it's against their religion and they are very obviously sincere, and the government still gets its property taxes to pay for education.

We who sail the Snark are not the first to point out the problem with birth control profits. McArdle addresses this as well.

3) But Hobby Lobby buys stuff from China, which has a horrible one-child policy that forces abortions! We're in pretty complex moral territory here, but everyone -- EVERYONE -- is at least remotely commercially associated with something they find appalling. Almost no one extrapolates out their moral beliefs to the most stringent possible application, else those of us who believe that charity is a moral obligation would be forced to sell everything we own until we were as poor as the poorest peasant.  

Hobby Lobby seems to be drawing a line at "after I give cash money to another adult human, I'm not responsible for what happens with the money," which is a reasonable line that many people draw, lest they have to spend all their time investigating the morals and habits of their lawn-care professionals. They may also think -- probably correctly -- that buying stuff from China has no impact on the number of abortions, except possibly to drive them down as the country gets richer. At any rate, no, you have not discovered some enticing "gotcha" that means Hobby Lobby is a big, fat, insincere hypocrite.  

4) But Hobby Lobby invests in companies that make birth control! They don't have a problem with IUDs when they can turn a profit, apparently!  

I don't blame you for saying this, because everyone else who read that somewhat overwrought Mother Jones article seems to have gotten the same impression. However.  

What Hobby Lobby does is outsource its 401(k) to a company that provides mutual funds; those mutual funds invest in companies that make birth control. There are all manner of reasonable distinctions here. First, Hobby Lobby is self-insured, so they are actually paying for the objectionable birth control. They are not, on the other hand, running a mutual-fund company, because that is illegal unless you are registered to do so with the government.  

Hobby Lobby may think that once it has passed off the cash to the employee, it's none of the company's business what the employee buys with it (that seems to be company policy on the disputed birth control). It may also think that the fact that this is done through an intermediary makes it different. Or it could take the stance -- common among evangelicals -- that because the stock does not actually promote the production of the birth control in question (money paid for stock goes to the owner of the stock, not the company), it does not have the same moral obligations as it does when it is a customer of those same companies. Those are three separate reasonable distinctions it could be making, or it could be making a different distinction that I don't know about. Or Hobby Lobby simply may not have realized what investments the proffered mutual funds were in; do you know what’s in your Vanguard S&P 500 Index Fund? I don’t exactly, and I spend most of my day writing about business and public policy.  

At any rate, given all those possible legitimate reasons to make the distinction Hobby Lobby has made, the Mother Jones complaint is pretty weak tea.

In other words, it's okay to pay for birth control if it's in cash but not if it's in benefits. That seems to be utterly arbitrary.

But the big problem lies with McArdle's other mental exercise. If Hobby Lobby has moral rights and obligations, don't pharmaceutical companies as well? If it's immoral to buy birth control, why is it moral to buy birth control stock? McArdle says "money paid for stock goes to the owner of the stock, not the company." But "[a] stock is an ownership share in a corporation. [1] Each of these shares denotes a part ownership for a shareowner, stockholder, or shareholder, of that company."

So either Megan McArdle doesn't know what a stock is or she is attempting to make a transparently false case for Hobby Lobby. I pick door number 2, although underestimating McArdle's ignorance is always a potential danger. In any case, the corporation is now a person. There is no difference between the morality of the corporation and the morality of its owners. Buying stock in companies that facilitate birth control is every bit as wrong as buying birth control, using Hobby Lobby's own logic.

5) But Hobby Lobby used to cover birth control before this lawsuit! It says it didn't realize it covered IUDs. That's quite possible; the list of covered benefits in these plans is now veeeeeerrrrry long.

For the second time McArdle says it's okay to be wrong as long as you weren't sure you were wrong. Which explains her lack of research. But it seems overly generous to religious folks to let them us "I forgot" or "I didn't know" as an excuse. It eliminates that whole sincerity clause. Now it doesn't matter if Hobby Lobby can prove its sincerity; all they have to do is say they meant to do that. Call it the Peewee Hermann clause.

6) Can the Catholic Church now hire undocumented immigrants because it believes in amnesty? No, because see above: Religious freedom gets balanced against the government's interest in secure borders. The church is very likely to lose if it tries this, which it won't.

Why is McArdle answering stupid questions that have nothing to do with the issue at hand? Perhaps she thinks her audience is stupid and therefore must be reassured that their stupid fears are just stupid.

7) Why does the Supreme Court think corporations are people? Isn't that obviously ridiculous?  

The Supreme Court does not think that corporations are people in the sense that you mean -- the Supreme Court will not be ruling that Wendy's has a Title IX right to play college sports. But we extend corporations many of the rights that people get because otherwise the results would be horrifying: The government would have the right to shut down the presses at the New York Times; search Google's servers without a warrant whenever they liked; tell churches (usually organized as corporations) what they could believe; deny nonprofits the right to organize protests; and otherwise abridge fundamental human rights. In this case, the ruling is that closely held corporations (companies where five or fewer people own more than half the stock) are in some sense an extension of their owners, and therefore enjoy the same rights as sole proprietors and partnerships to exercise their beliefs.

Actually, McArdle's reasoning is entirely wrong. "The ruling was reached on statutory grounds, citing the RFRA, because the mandate was not the "least restrictive" method of implementing the government's interest. The ruling did not address Hobby Lobby's claims under the Free Exercise Clause of the First Amendment.[29]" But as I said earlier, we all know how McArdle feels about research. (It's unnecessary and just complicates things.)

The court argued that the purpose of extending rights to corporations is to protect the rights of shareholders, officers, and employees.[30] It said that "allowing Hobby Lobby, Conestoga, and Mardel to assert RFRA claims protects the religious liberty of the Greens and the Hahns."[31]

McArdle says that nobody needs to worry about religious-based discrimination because the government won't allow it.

8) What if I declared that it was my religious belief to discriminate against gays? Actually, that's legal in many places, no matter what your religious beliefs. But if you live in one of the places where it's illegal, you're likely to lose that challenge, because again, the government has a compelling interest in preventing discrimination, and anti-discrimination rules are probably the least restrictive way of achieving that end.

So discrimination against gays is legal; there is no federal law. But the federal government will prevent discrimination because they have a compelling interest to prevent discrimination against gays, even though they do not prevent discrimination against gays. And now the Supreme Court says that the government, which declared that it had a compelling interest in providing poor women with easier access to birth control, must give way to religious practice instead.

Discriminating against the hiring of gays is merely refusing to sanction homosexuality, which is a a religious practice, says some religious groups.

Mr. President: Protect Rel Freedom in Ex Order June 25, 2014 · by Stanley Carlson-Thies · in ENDA, Religious Freedom Some 160 leaders of faith-based organizations and churches sent a letter Wednesday (June 25) asking the President to include strong religious freedom protections in the Executive Order he is preparing that would ban LGBT job discrimination by federal contractors. The letter does not endorse the planned Executive Order as the best way to curtail wrongful job discrimination but instead reminds the President of the need to honor the religious freedom of faith-based organizations, many of which partner with government to serve the needy and all of whom make a distinctive and important contribution to the common good. The letter recommends the religious freedom protections that the Senate accepted in its ENDA bill last November, but requests additional protections. Now, when the federal government is taking special steps to protect against wrongful job discrimination against gay persons, it is essential to also honor the legitimate rights of religious organizations that have long and deep convictions about marriage and sexuality. (This story was updated June 27; the linked letter has additional signatures, received after the letter was originally sent. The additional signatures have also been sent to the President.)

How can anyone deny these freedom-loving and faith-based people and Corporate-Americans who are begging for special protection from laws that protect gays in hiring? They are sincere and should not be forced to support the gay lifestyle by hiring gays. It's a matter of economic and religious freedom. If the courts can dismiss the government's interest in one right, why not in another?

The court concluded by addressing "the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction". The court said that their decision "provides no such shield", and that "prohibitions on racial discrimination are precisely tailored to achieve that critical goal."[41] The court also said that the requirement to pay taxes despite any religious objection is different from the contraceptive mandate because "there simply is no less restrictive alternative to the categorical requirement to pay taxes."[42] The court acknowledged the dissent's "worries about forcing the federal courts to apply RFRA to a host of claims made by litigants seeking a religious exemption from generally applicable laws...", noting that this point was "made forcefully by the Court in Smith". The court responded by saying, "Congress, in enacting RFRA, took the position that 'the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests'...The wisdom of Congress’s judgment on this matter is not our concern. Our responsibility is to enforce RFRA as written, and under the standard that RFRA prescribes, the HHS contraceptive mandate is unlawful."[43]

McArdle continues:

9) Why is it any of my employer's business what birth control I use?  

It's not, but once you make them pay for it, you make them a party to the transaction. You can't, on the one hand, mandate that someone pay for something, and on the other argue that it is a matter of supreme indifference to them. Hobby Lobby self-insures, so there's no question that the company itself would be paying for contraception, which it says it finds morally abhorrent. That puts them in RFRA territory. If you endorse universalizing your own beliefs -- for example, “Brendan Eich should be fired because he spent his own money on opposing gay marriage” or “Women have a right to the fullest contraceptive access” -- then it shouldn’t surprise you that other people might not be content to privately not use abortifacients while buying insurance for its employees who pay for same.

Why should Hobby Lobby pay for same-sex health benefits, benefits for illegitimate children, STD treatments, vasectomies, tubal ligations, emergency D&Cs to save the life of the mother, in-vitro fertilizations? Why should they be forced to pay millions of dollars for anything they find morally abhorrent?

McArdle ridicules the critics who point out that benefits are part of our salary, not a gift from our employer.

10) What if your employer decided it didn't want you spending your salary on IUDs because they're paying for it?  

Why does so much of this argument end up in ludicrous hypotheticals? First, no employer that we know of does this; second, they couldn't do this, because of health-care privacy laws; and third, if they tried to argue from RFRA, the Supreme Court would not side with them, because again, the liberty promised under RFRA is balanced against other interests, not absolutes. RFRA has been around for 20 years, and we haven't legalized, say, pedophilia.

Where are health-care privacy laws when it comes to birth control? "Nobody does it" is a stupid response to a new ruling. Perhaps the Supreme Court would not side with them, but who thought the Supreme Court would declare corporations are people?

11) What if Hobby Lobby is wrong about the science?

McArdle accurately states that it doesn't matter if the Corporate-American is right or wrong, it just matter that he seems to believe it.

12) What if my employer says it has a sincere religious belief in human sacrifice -- can he kill me?  

Yes. If your employer has a deeply held religious belief in human sacrifice, they can strap you in a cage, reach into your chest with their bare hands to pull out your still-beating heart, then drop the cage into a fiery pit. It’s a tough break, but from time to time, the Tree of Liberty must be watered with the blood of patriots. Sorry about that.

It's big of McArdle to look at this whole matter with such glib disdain. But she doesn't have a dog in this hunt so she can afford to yawn and dismiss alarmed lice and scum. She isn't gay and assumes she'll never have so little power that her employer can pick and choose which health benefits suit his conscience and which don't. She isn't poor and can pay for her own birth control, not that she has to.

It's a tough break for married women working at low-paying jobs who were legally entitled to that benefit, but now Corporate-Americans are finally free at last.