Today’s decision does not expand religious liberty, but restricts it. In a Darwinian example of the rights of the powerful expanded on the backs of the weak, the Hobby Lobby decision is a boon, not to Christians, but to corporations and a particular kind of pro-corporate Christian.
Despite the media coverage of the Hobby Lobby case and today’s decision, we aren’t seeing an expansion of religious liberty under the law. We’re actually seeing the opposite. In siding with Hobby Lobby (and Conestoga Wood Specialties), the Supreme Court has used religious liberty as a means of expanding corporate power. In the argument for the majority, Justice Samuel Alito writes:
“A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people.”
Nothing here speaks to religious liberty, but notice that Alito expands the protection given by Citizens United to suggest that a corporation is not actually a thing in itself, but a collection of individuals. So it is their personhood that the court is protecting. Except that in this statement, Alito even admits that, in collecting individuals in this way, the law “specifies the rights and obligations of people…who are associated” with it. This is not so much corporations as people, but as accounting gimmicks to game the system.
It means corporations grant people super powers under the law. It’s like personhood 2.0.
I don’t see, then, how the corporation can be afforded any rights or even standing if it is an empty apparatus to protect the true plaintiffs: David and Barbara Green. If Hobby Lobby actually is a corporation, and itself a legal entity with standing, bound by the “rights and obligations” of the law, it would certainly shield David and Barbara Green. However, it would also protect its employees from David and Barbara Green under those same rights and obligations.
Hobby Lobby can be the Green family or it can be a corporation, but it can’t be both.
Except that now, somehow, it is.
This is great news for the Greens because they suddenly have a ton of extra power. And it is great news for others in that very same boat. Chic-fil-A, you don’t want to be outdone by Hobby Lobby, do you? However, this is bad news for religious liberty.
The court has now given an organization started by a religious family the same status as actual religious organizations, only they have different rights and obligations. So, instead of granting individuals any rights or expanding the already considerable protections given to churches and religious institutions, this shields for-profit corporations from normal restrictions they receive under law for being corporations. Justice Kennedy is cool with that, because apparently he doesn’t think the law’s authors worked hard enough.
If the Greens want Hobby Lobby to be a religious organization, I think they have every right to be. They just have to stop being a for-profit corporation and actually be a religious organization under existing laws that govern actual religious organizations.
Restricting religious liberty
Since this case that The Religious Organization Known As Hobby Lobby brought is about restricting employees’ access to particular medications, it cannot expand religious liberty. It is not a positive expression of religiosity, but a negative one. The case actually enshrines the infringement of the employees’ religious liberties.
In making the case that the Green Family was being restricted from restricting others, and that such a restriction infringes on their rights, the court accepts as lawful a religious exemption for infringing upon others. In this case, the religious liberties of those who not only see family planning as a human right, but an honest expression of their religious faith.
By granting TROKAHL the right to restrict other people’s religious expression as their religious expression, the court is setting a dangerous precedent for how religious organizations, members of religious organizations, and free-range religionists interact. Considering this particular religious expression runs counter to the beliefs of the vast majority of Christians, how are they so comfortable calling this a case of religious liberty? Would the court be so cavalier if the Green Family were restricting the faith and practice of their employees if the Greens were from a different religious tradition?
And further, if the court is not willing to allow different infringements, including religious restrictions not related to contraception, then what kind of religious liberty are they actually enshrining? What is the purpose of allowing these particular people to restrict the religious liberties of these other particular people for this particular reason if this isn’t the very legal framework they will adopt for virtually any other case of religious liberty?
It restricts our faith
Contraception, family planning, women’s empowerment, and reducing infant mortality are all part of a broad sense of mission work, recognized by my most Christians. This work comes from a great spirit of service and giving to those less fortunate, and more over, those with less power and fewer opportunities. These, along with the eradication of extreme hunger, the promotion of gender equality, combating disease, ensuring environmental sustainability, and global partnership for development form the bedrock of the Millennium Development Goals; a global initiative supported by millions of people of faith all over the world. It is a broad coalition of people, who, for more than a decade, have sought to make these goals a reality.
So many more people of faith in this country and throughout the world have stood up and articulated the need for broad support of those with greater economic insecurity, those without easy access to life-saving materials or medications, those without the circumstances that would allow them to gain, not only the ears of the powerful, but put them within a hundred miles of those ears and with a such a voice as to be heard. We have spoken time and again to the importance of contraception and access to family planning as necessary to producing a faithful and just society.
The Court’s decision actually restricts how faith and religious expression is understood under the law by making it about individual conscience, but without the conviction or support of religious community or the weight of religious tradition. In other words, they made this ruling be about the individual faith of the Green Family and their individual right to express it negatively. This is an ironically Protestant understanding of faith coming from a five Catholic majority.
In fact they showed little respect for either the religious traditions or the science that under-girded the merits of the case.
What the decision does, however, is raise an individual’s right to infringe on another because of his/her faith and restrict access to contraception above my entire denomination’s public support for the use of and access to contraception. For, if this actually were a case of expanding religious liberty, the court would be concerned for any Episcopalian or other person of faith in the corporation whose access to religiously sanctioned and encouraged methods of family planning were being violated or restricted. If this were honestly about religious liberty, the people of all faiths would have been protected from the Greens.
Instead, the court protected the Greens, and worse, carved out a completely new expression of religious liberty. The freedom to cause pain.
Because, I guess, God wants them to.
This doesn’t expand religious liberty, nor is it a victory for religious liberty. One family has more power, and their thousands employees in over 500 stores have had their religious liberty infringed.
But you and me and our entire religious traditions? Our history and our teaching? The weight of institution and movements? And all of those moments in which churches stood up to the powerful and vile and destructive and the selfish and said “No more! Not here!” and brought down slavery and moved for equal rights for all sorts and conditions of people, and who continue to push for the full equality of those marginalized and ostracized, we the inheritors of a grand and ancient tradition of prophecy and concern will continue to stand up.
Even if a single family can simply claim religious exemption and be treated as our equals. This new for-profit religious organization will never be the church as long as it continues to be the tool of empire. For we know the difference. It is now our job to help the Supreme Court see it, too. Because the Kingdom Jesus speaks of can never be found if we are only individuals.
Nor will it ever be found if all we are is a collection of individuals. Incorporated for profit. And GOD, too. But definitely profit first.