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Some Advice for Liberals....

...from Ross Douthat about religious freedom.

"The entire conflict between religious liberty and cultural liberalism has created an interesting situation in our politics: The political left is expending a remarkable amount of energy trying to fine, vilify and bring to heel organizations — charities, hospitals, schools and mission-infused businesses — whose commitments they might under other circumstances extol.

"So the recent Supreme Court ruling offers a chance, after the hysteria cools and the Taliban hypotheticals grow stale, for liberals to pause and consider the long-term implications of this culture-war campaign." NYTimes Sunday OP-ED



Commenting Guidelines

I'm disgusted with the liberal establishment.  They're acting as if the religious freedom clause isn't really real, so the right to free exercise of religion doesn't mean what it says..  But it is quite real (second only to freedom of speech in the Bill Rights).   If there is a conflict of rights (in theHobbly Lobby case, the religious right and the equal treatment right) that does not cancel out either one of them.  So if steps can be taken to honor both rights, then the steps should be taken. 

NOW in particular seems to have turned bossy.  It did a lot of good in the past, but it's turned into a real nanny.

Does the fact that Hobby Lobby invests in Viagra make it a liberal's choice? Better paragon, Ross, please. There's a lot of hypocrisy to go around, and perhaps Ann has a point: NOW, the Republican obstruction, Hobby Lobby, and those annoying Viagra spams all make for a good party. Put 'em in a jar, shake 'em up and see what falls out.

Liberal estblishment? What's that?

Hobby Lobby is a "mission-infused businesse"?  I guess we'll ignore their investments in contraception and in Chinese made goods.

Liberal religious believers have an authentic investment in defusing the conservative religious hysteria over "threats to religious liberty".  Bishop Gene Robinson has an article at The Daily Beast about this ...  "Even After Hobby Lobby the Religious Right is Still Terrified" ...

Ann Olivier,

A lot of the cases aren't government versus religion but competing religious claims. Does the employer have a right to set religious standards of employment or do employees have the right to live according to their own religious standards? Does the desire of an employer to not be involved in activities they believe are immoral however remotely trump the right of employees to manage their own health care and the health insurance managed by the company but earned by the employees via their labor? Does the right to not recognize marriages that do not meet one's religious standards create a right to veto the marriages of others?

In these cases, liberals aren't choosing government over religion but the right to live without interference from the religion of others over the right to impose one's religion on others.

TF: What's the liberal establishment? Why not start with the Democratic Party?

Hobby Lobby had objections not to sex and not to contraception per se (and apparently not to Viagra [I may be mistaken but I don't think the Catholic Church objects to Viagra]), but to the morning after pill and devices that they and other think act as abortifacients. Presumably the basic contraceptive pill could be covered by their insurance policies.

Douthat has some reasonable points. Why the defensiveness?


Hobby Lobby's assertion that the morning after pill and Ella caused abortions was false according to medical professionals.  That the court took their word over that of the American College of Obstetricians and Gynecologists was bizarre ...


Bending over backward to honor religious scruples is clearly a very dangerous policy. There is almost no humane and enlightened social or scientific progress against which religious objections cannot be made. The five Catholic men who sided with Hobby Lobby may think that Hobby Lobby's opinion on the four contraceptives is so obvious and objective that their religious opinion commands respect. But they offer no argument for that perception, merely upholding the sincerity of the opinion. 

"Douthat has some reasonable points."  OK, I'll bite, what are they?

Perhaps a useful place to start would be a definition of "liberal".  Bearing in mind the pervasiveness and sheer lunancy of those who with undeniable self-rightousness flood the airways and written publications not with suggestions but statements of "fact" Obama are a reincarnation of facism I more than suggest that is a required starting point.  I toss in among that lot of "God fearing" groups those who lack the ability to discern totalitarianism from communism  and disagreement from attack.  Such persons more in love with the words than humanity the words represent are doomed to see Satan in every argument requiring them to deal with ambiguity, a basic requirement we rightly expect of useful adults.

"....and the Taliban hypotheticals grow stale,..."  sheer grandstanding nonsense.  If a person wishes to be considered the voice of reason they might do well to write as if they were familar with reason.

An unwillingness to lightly tolerate condescension is hardly a form of defensiveness.


I'm of two minds about the decision to accept Hobby Lobby's claims at face value. On one hand, we should generally avoid making factual determinations about religious beliefs. Putting religious judgements into the hands of judges will inevitably lead to injustices where judges either tell people what their religion really says or that their religion is wrong. On the other hand, the threshold for an unconstitutional violation of one's religious liberty is now so low that judges will need to begin to make these determinations in order for any of our laws to be enforceable.

Unfortunately, in his ruling, Alito endorsed Hobby Lobby's claims, apparently because they were congruent with his own religious sensibilities. Objections that he consider frivilous do not necessarily get the same protection.


What is interesting is weighing religious beliefs against facts.  Religious beliefs have some value but they aren't always true in the same way facts are true.  It's one thing to allow believers to preach their beliefs, but it's naother to impose those beliefs on people who aren't believers.  And this isn't about religion vs the secular state ... there are many religious denominations and groups that disagree with the Hobby Lobby decision ... ... a particular religious belief cannot trump facts in a pluralistic society, only in a theocracy.


"Putting religious judgements into the hands of judges will inevitably lead to injustices where judges either tell people what their religion really says or that their religion is wrong. On the other hand, the threshold for an unconstitutional violation of one's religious liberty is now so low that judges will need to begin to make these determinations in order for any of our laws to be enforceable."

I've forgottent the rather recent Court decision which says that it it the religious group which decides/defines what their beliefs are.  The Court not say that those beliefs have to be rational.

This implies that one has a right to crazy beliefs.  When crazy/irrational beliefs affect the lives of others, it's a different matter.  In the case of Hobby Lobby, however, the decision does not infringe upon the rights of others -- the employees get their contraceptives.  For the left establishment to shriek "Violations of my rights to contraception!" is simply hysteria.

"Why th dfensieess?"

hatmakesyou ink t's defeneiveness. I'm a keptic, tha's ll.

And wish somon oul ix you cmmntboxes,

I read Douthat a couple of times, and I am still baffled. What is he trying to say?There are phrases that suggest he is saying something I agree with, and then he's off into the beautiful writing that seems not to  say anything at all and that I would be ashamed to be associated with. Where did his Taliban come from?

Specifically on Hobby Lobby, I am reminded of an old New Yorker cartoon I can quote only approximately. But the boss is explaining to an employee, "Smedley & Co. can pay you a decent wage. Smedley & Co. can provide a safe working environment. Smedley & Co. can help you plan for your old age. But Smedley & Co. can not love you."

The Supreme Court seems to disagree.

Douthat makes an argument; that's interesting in itself.

It begins with the claims that liberals critcize and bemoan the lack of ethical behavior in corporations. Citing the Demos article he points to a corporation that meets many of the standards liberals want to see in corporations: wages, pensions, holidays, etc. That corporation is Hobby Lobby. That it objects to certain contraceptives, but not all, has made it a liberal villan.

Douthat goes on: "The political left is expending a remarkable amount of energy trying to fine, vilify and bring to heel organizations — charities, hospitals, schools and mission-infused businesses — whose commitments they might under other circumstances extol."

The NIH Committee that ruled in favor of including the disputed drugs and devices made no independent judgement about the way these worked, or didn't. One member pointed out that there had been no scientific judgement in the ruling. For what it's worth, the government in arguing against Hobby Loybby before the Court agreed that that HL's views were sincere and not being contested. And the Court made no scentific/medical judgement about the drugs/devices themselves.

Frankly I was surprised that the Court found for Hobby Lobby. But it did. My e-mail box is full of hand-wringing from the usual advocacy groups, more liberal establishment, and more illiberal attacks on religion. Douthat's column raised a warning flag about the venom and hysteria among liberals. It's worth thinking about--taliban and all.


Douthat goes on: "The political left is expending a remarkable amount of energy trying to fine, vilify and bring to heel organizations — charities, hospitals, schools and mission-infused businesses — whose commitments they might under other circumstances extol."

Yeah, and that is one of the places where he left me with my mouth open looking at his back as it disappeared into the weeds. The Obama administration is expending a remarkable amount of energy trying to herd cats into a conservative-"invented" semiuniversal health care system that requires putting hospitals, doctors and other health care providers into convenient insurance boxes (while seducing the insurance companies into producing similar boxes). But that is what comes when you eschew a single-payer sistem. Incidentally, Switzerland does it with seemingly a lot less tsouris. So maybe it's just us. Or maybe it's the supposed inventors.

But the political left doesn't have any skin in that game. That's between Obama and the Republicans he hoped would be allies in enacting and enforcing what was their game. The political left is still on the sidelines, unloved, nursing its wounds and starting to think -- in the light of what followed --  about the good points of Richard Nixon's domestic policies. Douthat may be too young to remember that, but it is in books.

Some of my--for what it's worth--thoughts on Douthat's piece:

1) He raises a very good point on the extremely restricted notion of religion that Ginsburg advocated in her dissent and its problems, perhaps even dangers.  This is the same view of religion espoused by the ACLU--religion exists to serve its co-religionists only.  I was also troubled by this line in Ginsburg's dissent, and it really does require liberals to think through what they mean by "religion" for political purposes.  That, however, is about the only good point I really think he makes.

2) The entire opening section on how Hobby Lobby is a good company is an utter red herring and ignores why most liberals are enraged in this case: much less about religion in itself but the fact that a for-profit corporation (whether closely held or not), which exists to shield its owners from otherwise common responsibilities, can still have rights to religious freedom.  To not look at this case through the lens of Citizen United is to miss a major part of liberal angst.  To give an (extreme? I'm less sure anymore) example, let's say that Hobby Lobby--that corporation liberals should love--sued and somehow won in the Supreme Court another right that hitherto had existed only for real, not fictitious persons: the right to vote.  If uproar was created over that, would that therefore mean that liberals were against voting rights?  This seems to be what Douthat is saying in this instance: liberals don't like the Hobby Lobby decision, therefore they are anti-religion.  I don't buy this.  I suspect that if Notre Dame hadn't already been given everything it wanted (except the need to fill out a form) and this case had been decided for religious non-profits instead, many liberals wouldn't have liked it, but there wouldn't have been nearly this outcry either.  The for-profit corporate status of the company is essential to understand what's going on, and Douthat utterly elides it by saying, essentially, "But they're a really nice for-profit company!"

3) If liberals have to be cautious about what they claim about religion, so too do conservatives.  Personally, I am appalled by Wheaton College, Notre Dame, the US bishops and even the Little Sisters of the Poor on this.  And I am appalled because I, too, want to see robust accomodation for religions in US public life.  Yet the frivolousness of fighting over having to fill out a form that does nothing else but notify the US government and insurance companies that you fall into exepted categories and will take advantage of that, shows utter disrespect to the seriousness of religious liberty. How can a good-faith secularist, who many be otherwise disposed to robust pluralism and accomodation, look on this kind of frivolity?  This Catholic liberal, who was greatly bothered by the original narrow strictures of accomodation to the contraceptive mandate that seemed to follow Ginsburg's defintion of religion (and which was readily changed, and not through the courts, upon objection), is appalled.

Douthat, as usual, is demonstrating that he is really just a bunch of huey - the NYT's house conservative troll.  MOS, you should know better than to join in with the mindless right-wing blather about the menacing intentions of the "political left."

Just where are these denizens of the left?  I'd like to meet one before I die.  There is no "left" anymore- get use to it.  You people watch too much FOX No-News.  Just like his ideological bedfellows in the Catholic hierarchy, Douthat is running around with his tin foil hat on to deflect all those mind-control death-rays coming from the liberal alien mother ship in stationary orbit.

Ruth Bader Ginsburg is right.  Alito has written an opinion of "startling breath" where the unintended consequences of his opinion becomes more obvious each day.  Alito, like our American Catholic hierarchs, tries to cloth himself in the 1st Amendment mantle.  Any American who reads knows that the our rights embedded in the Constitution are limited rights - not absolute.  [Poor dear, Alito didn't hear those kind of things when he was hanging-out at Princeton with his racist and misogynist fellow conservatives.]

Ginsburg understands well the delicate balance of the US Constitution.  We also have the 14th Amendment that mandates "due process" and "equal protection under the law" - something that seems to escape the Catholic Five on SCOTUS.  Alito and his Catholic buddies on SCOTUS have put us in a mess.  But we will work things out in the long run.

All that Alito has done is hand the Democrats the perfect issue to excite their base voters in advance of the mid-term elections - besides, I don't buy the meme that Democrats are in such a pickle because the election fundamentals still favor them.  The immigration issue alone is worth a few nails for the Republicans coffin - Latinos are learning how to register and vote.  

I would wager that if - admittedly a big IF - a miracle occurs and the Democrats gain control of the Congress, watch for a move to add a couple of seats to SCOTUS in order to make the Five Catholic Supremes a permanent minority.  [Can't wait for California's Attorney General Kamala Harris - UC Berkeley's Bolt Law School grad and product of Berkeley High School - to intellectually batter Clarence Thomas repeatedly around the legal head and shoulders.]

I think Hilary just popped a few champagne corks in Chappaqua.

Here is what I take to be the heart of Douthat's argument:

Insist that for legal purposes there’s no such thing as a religiously motivated business, and you will get fewer religiously motivated business owners — and more chain stores that happily cover Plan B but pay significantly lower wages. Pressure religious hospitals to perform abortions or sex-reassignment surgery (or some eugenic breakthrough, down the road), and you’ll eventually get fewer religious hospitals — and probably less charity care and a more zealous focus on the bottom line. Tell religious charities they have legal rights only insofar as they serve their co-religionists, and you’ll see the scope of their endeavors contract.

This is one range of possible outcomes, and with Douthat (and, I think, Margaret), I would mourn it..  Another set of possibilities - and one that, arguably, we see happening with the contraception mandate - is that these religiously motivated organizations, in order to survive, divorce themselves from their religious roots.  That is another outcome I'd mourn. 

If HHS just broadened Obamacare's religious exemption, the lawsuits from Notre Dame, the Little Sisters et al presumably would go away.  The entire Accommodation mess could have been avoided.  It's a bit puzzling why the Obama Administration hasn't shown any interest in doing so.


Ms. Steinfels - what Andy said. 

Douthat cites some business practices of the Greens that he says are religious based and create the common good - $15 per hour, closed on Sundays, 10% giving.  Facts - other businesses also act in this way without the *cultic* behaviors of the Greens e.g. Chick-fil-A; Costco comes to mind immediately.

Lots of research and paper have been spent on looking at the Greens and the points that Douthat states:

- closed on Sunday.........does this really have anything to do with Christian common good?  Folks work at all kinds of hours, days, etc.  The majority of large corporations do not require their employees to work on *week-ends* - does that make them Christian?

- 10% giving - research who they give to......Gothard, cultic extremes, etc.

So, why would *liberals* be defensive about the Greens, SCOTUS decision, and Douthat's take:

- let's start with a basic disconnect....the Greens want an *accomodation* for their religious beliefs  (and, of course, their religious belief means denying *religious freedom* to many of their employees (why does there religious freedom trump others' religious freedom?  Appears that the accomodation language only works one way)

- their religious freedom (certain contraceptives) rejects scientific understanding, is bad medicine, supports and outdated, narrow interpretation based on their *imagined* biblical principles.  In addition, their religious freedom is bad social policy; is a form of what I would call is *social do-nothingism*.

- their religious freedom continues a form of medical insurance that is unbalanced; ignores or rejects what we know today about reproduction; treats women as less than men in terms of choices, costs, control, etc.  (a hidden form of misogyny)

Can't wait for the first example of a *corporation* filing to adopt a child or requesting a marriage license?  (well, they are a *person*)   Talk about a slippery slope - from Citizens United, to Hobby Lobby, and now Wheaton College.  You ask - why fear the accomodation approach?  Well, Mr. Douthat - on the surface, it does appear that we could just let bygones be bygones....but, predict that this will devolve into all sorts of by religious freedom is more important than your religious freedom e.g. rights of gays (someone will file suit that they have the religious freedom to deny service to gays because homosexuality is not part of their biblical principles;  etc., etc.)

We used to try to separate church and state (businesses being a part of state).  What Douthat misses is that not-for-profit charities, social agencies, etc. have a mission to serve the needy, injured, poor, etc. (not to enshrine their religious, evangelical, or cultic behaviors and force those on others).  This is one step removed from demanding that to receive charity - one must become the religion of the charity.


I did a "close reading" of Douthat's piece and gave up in frustration. I'm usually very open to his ideas, but in this essay, he's essentially ramping up the culture wars rhetoric while cautioning liberals to ramp it down. Ah, well, he's just a boy yet. 

Sticking point for me: Douthat's evidence that Hobby Lobby is a "good" company because it pays full-timers $15 an hour to start lacks one vital statistic; what percentage of its workforce is full-time? My cousin is a full-time exec for Walmart and makes a very good living. Because they don't pay the workers in her stores squat.

Ann Olivier,

We have a right to crazy beliefs, but not a right to get our way just because we claim a religious objection. In this case, the nature of why Hobby Lobby finds a particular set of contraceptives to be immoral should be irrelevant. The relevant question is whether requiring coverage of these contraceptives is an unconstitutional burden. I would say no because the insurance, like wages, belongs to the employees. As soon as the money for the insurance leaves the company's accounts, they lose the right to control how it is used. If they believe that they still have a moral responsibility for how the money is used, their options are: 1) attempt to persuade their employees not to use it in ways they object to, 2) structure their business in ways that reduces their perceived culpability even if it increases their costs, and 3) lobby the government to change the law to make the costs of structuring their business are reduced.

"he's essentially ramping up the culture wars rhetoric while cautioning liberals to ramp it down"


Ross Douthat misses a lot in his column.  First off, the idea that we should celebrate Hobby Lobby because it is a business with a heart or conscience.  Depending on the good intentions of wealthy individuals (oligarchs) is not how most people want to live their lives. 

The liberal answer to any employer that fails to pay a living wage is to adjust the minimum wage, not eradicate big box stores in the hope that smaller establishments will quixotically and against their own interests agree to pay higher wages.   If MOS and others find the notion of a minimum wage to be a sign of liberal overreaching maybe they should say so.  Oops, that's right, I just read in this very space that, rather than being ungodly, it was actually a very Catholic thing to do. 

In any event, the decision to pay this or that kind of wage is well within the normal spectrum of business strategy.  You start and run the business, these are the kinds of decisions workers expect to encounter.  Hobby Lobby may have determined, as other businesses like Ikea and Costco and Nordstroms have, that it makes good business sense to pay workers even more than the law requires.

But to allow wealthy people to "push down" their idiosyncratic or just particular views on totally non-work related issues, is the flip side of this principal. You WORK for a living partly so that you can't be told what to do when the work day is over.  And no, I do not see any limiting principle to what the Supreme Court decided, other than their own religious sensibilities.  This decision, even worse than Yoder v. Wisconsin, but along the same lines -- merely finds a law inapplicable to objectors that the court (or some of the court) sympathized with. 

At least, with Yoder, they were dealing with the views of parents as applied to their children, not business owners trying to limit in whatever way possible the personal choices of their employees.  The day I can sue the owners of Hobby Lobby PERSONALLY when I slip and fall in one of their stores is the day that anyone should take seriously the claims of any entity that operates as a "person" only via legal fiction to be "infused" with the religious views of their owners.  The parents in Yoder had full responsibility for their child.  Hobby Lobby picks and chooses how much it will protect the welfare of their employees.  Does this difference really escape you?

And yes, the fight over the form takes a view of women and their bodily functions and reproductive rights that is almost like a form of purdah, a business so dirty and horrifying that even filling out a form to tell your plan administrator that you don't want to offer contraception is an affront to your conscience.  This starts to make Christianity and Catholicism look as if they are not much more than a fertility cult. 

To not look at this case through the lens of Citizen United is to miss a major part of liberal angst.  ...The for-profit corporate status of the company is essential to understand what's going on, and Douthat utterly elides it by saying, essentially, "But they're a really nice for-profit company!"

Andy - I have to say, I'm not following you on this.  Why does it matter to a liberal that Hobby Lobby is a for-profit company?  Are you saying that if it were a not-for-profit, liberals wouldn't care nearly as much?  Why does it matter that Hobby Lobby was organized to make profits for its owners, and what does that have to do with subsidizing contraception for employees?



For those who want a historical rundown on the protection of conscientious objectors to a variety of laws, this is a pretty nice summary, though it does not appear to have been updated beyond 2005 or so.


If sincerely held religious beliefs result in negative consequences to those who do not hold those beliefs, then the common good should trump the ability of these beliefs to be exercised over others.

Sincerely held does not equate with the ability of the minority (or the majority) to hold sway.  Slavery and anti-miscegenation laws were undoubtledly the result of sincerely held beliefs, religious or otherwise.

Why does it matter to a liberal that Hobby Lobby is a for-profit company? 

I don't speak for all liberals, but the fact that Hobby Lobby is a for-profit company does make a difference to me (though I think the "closely held" nature of the company also makes a difference; I'm still making up my mind ...).

However, the company's reason for existence is to make money by selling craft supplies. It is not a church nor does it perform the charitable functions associated with a religious organization, nor does it qualify for non-profit status, subject to IRS oversight to ensure it fulfills its 501c3 or similar obligations.

Just for fun, I looked up Hobby Lobby's mission statement on its Web site, and I see nothing that would qualify it for religious exemptions. The references to "bliblical principles" is incredibly vague and could cover anything from being closed on Sundays to banning shell-fish at company parties. 

At Hobby Lobby, we value our customers and employees and are committed to:

  • Honoring the Lord in all we do by operating the company in a manner consistent with biblical principles.
  • Offering our customers exceptional selection and value in the crafts and home decor market.
  • Serving our employees and their families by establishing a work environment and company policies that build character, strengthen individuals and nurture families.
  • Providing a return on the owner's investment, sharing the Lord's blessings with our employees, and investing in our community.

I was thinking some more about Douthat while waiting for the chance to entertain my primary doctor this morning, and I thought this: His major premise is wrong. Liberals I knew never wanted companies to be more moral. They wanted companies to be good neighbors, to respect all of the people we used to call (in Ike's days, since Douthat pretends to remember) stakeholders -- customers, employees, suppliers, neighbors, stockholders. Liberals didn't want companies to gouge customers or decamp leaving a dirty old factory for its neighbors to clean up. And the funny thing is, businesses, by and large, shared that view. But the view was not a moral view. It was a neighborliness view -- its inspiration came from the Kiwanis and the Rotary, not the Bible -- and was enforced among the bad apples by the force of law.

It was later, about the time liberals became irrelevant and unions started being squeezed out, that companies began to claim their responsibilities begin and end with the stockholders and everyone else -- customers, employees, neighbrs, suppliers -- can go to blazes, or Texas whichever they prefer.

That is a straw liberal he is attacking. And his closing wail on behalf of diversity is hogwash.


Basically what Jean said.  I also think that the "closely-held" could make a difference, but I'm not sure what the difference is between that and publically traded are in principle.  Practically, of course, the odds of a publically traded company having religious views would be slight, because--I guess--all shareholders would have to vote or something.  But if they were to do so, I'm not sure what principled difference there would be between that and a closely-held one.

Non-profit, religious groups incorporate in order to further religious ends: caring for the poor and oppressed, feeding the hungry, etc.  For-profits incorporate for exactly that reason: to make profits.  Now, perhaps there is an argument that making money is a religious task. I would have some rather strong difficulities with such an argument, but either way, I haven't yet heard it.  That those profits may be used for good ends is great, but ultimately beside the point.  If Hobby Lobby decided to start paying only minimum wage, stop tithing, etc., that would not change their legal status a whit.  If a non-profit decided to, for example, stop serving the poor and get into making money for its own sake, that would require a legal change.  They are just different types of groups, which is precisely why they are treated differently in the tax code and in corporate law.

There is absolutely no meaningful distinction for a c corporation that transcends tax or corporate laws.  A c corporation is still a business corporation, but there is a limit on the number of shareholders (without looking it up, I think the number is 35 but it might have changed).  I believe that Congress created it as a category (it's not a creature of most state laws but of taxation) for purposes of taxation.  Not being a tax lawyer, I don't remember all the differences, but it has some typical features of partnership taxation but is definitely a business corporation with limited liability for the owners that is the essential hallmark of ALL corporations. 

An "s" corporation is not closely held; there is no limit on the number of shareholders. 

A publicly traded corporation is listed on an exchange -- anyone can buy shares.  That's what it means to be publicly traded. 

Every characteristic of these entities is created by state and federal law -- corporate law, tax law, and securities law. 

Congress can decide tomorrow to eliminate the category known as a c corporation for federal tax purposes.  Then the owners of Hobby Lobby would be faced with whether they should be an LLC or a partnership or just a plain old s corporation. 

'If sincerely held religious beliefs result in negative consequences to those who do not hold those beliefs, then the common good should trump the ability ocf these beliefs to be exercised over others."

Jim McC. --

Nobody said otherwise.  What the decision assumes is that the common good is best served by 1) providing the contraceptives to the employees and 2) accomodating Hobby Lobby.  It avoids an either/or decision by providing a both/and one.

Yes, that business about not filling out a form is nonsense.

Barbara's argument is strong. And let me recommend Justice Sotomayer's dissent concerning Wheaton College's petition for injunctive relief. It does seem that the Roberts Court is drifting into legislating.

Why do our employers have any thing to do with our health care anyway.  Single payer is the answer to this and lots of our other health care conundrums.

Thanks for the thoughtful post. 

Single payer was the answer. The Republicans said no. The Democrats were afraid it would fail of passage.

Instead, are we likely to see the end to employer-provided health insurance? If so, everyone can go directly to a government web site (Feds or State), sign up, and the insurance companies can provide whatever they'll provide.

Jean and Andy, thanks for responding.  Jean, you wrote this:

 the company's reason for existence is to make money by selling craft supplies

... and then, to your credit, you searched out the company's mission statement, which had four different bullets, and a number of different ideas within those four bullets.  One of the bullets, to be sure, included, "Providing a return on the owner's investment", which I take to be more or less the same as "to make money by selling craft supplies".  Yet that same phrase in their mission was balanced by a mission to two other stakeholders: "Sharing the Lord's blessings with our employees", and "investing in our community"

Other key ideas in the company's mission would seeem to include honoring the Lord, pleasing its customers and servinng its employees and their families.

Do we believe Hobbly Lobby's mission statement?  Maybe one of the questions on the table is, Do we take the Greens at their word?  If you take the cynical point of view that mission statements aren't worth the electricity needed to light up the pixels that display them on a computer screen, I can only say that you wouldn't be the only cynics I've met :-).  But if we do take the Greens at their word, that they meant every word of their mission statement - that at the very least their mission statement is their vision for what their company *should* be, and this is what they *try* to accomplish (even when it doesn't succeed), then the mission of their company encompasses a good deal more than simply "to make money by selling crafts".

I commented about this in another recent thread, in a conversation I had with Bernard: people start up companies for all sorts of reasons.  Usually, among them is to make money.  But there can be other reasons, too.  I'm sure Jobs and Wozniak started Apple because they wanted to create cool technology - and, presumably, make a lot of money.  The Greens, working from a foundation of (apparently) sincere religious beliefs, proclaim a mission to the world to honor God, serve their employees, delight their customers - and make money.  

To cast this in religious terms, the Greens seem to see running this business as their vocation.  It wouldn't surprise me in the least to learn that they see themselves as serving God and their fellow humans by running this large and successful company.  Some of us are called to teach, some of us are called to be nurses, and some of us are called to run companies.  Some people (I've known a number of them) believe that God is calling them to improve the world  by running a not-for-profit, charitable endeavor - feeding the hungry, raising money for Multiple Sclerosis research, and so on.  And some other people (I've known some of them, too) believe that God is calling them to start and own a business, and that they can make the world a little better that way.

There are all sorts of people who dishonor their vocations, by ignoring their call to do what they should be doing, or (what may be more common) by living out vocations in ways that are unworthy.  From what I've seen, the Greens at least seem to take their vocation seriously.  I do think the world would be considerably better off if more business owners were like them.


If the Democrats ever get their acts together and regain control of the House and ultimately the Senate, I think single payer will become the law of the land.

What we are seeing now is a good reason FOR that to happen.  All of their exceptions for wounded religious sensibilities are the proof that the ACA is nothing more than a horse designed by a committee ... a camel.

Maybe this was necessary to happen for the good to overcome the mistakes of the "wise."

Jim P.:  There are many companies who adopt similar mission statements, such as, adhering to ecologically sustainable principles, fair trade, humane employment policies, giving back a share of their revenue to various causes and so on.  Tom's, the shoe company, gives a pair of shoes away to various groups for every shoe it sells.  Many companies use the pink ribbon symbol so you can know that if you buy a given product, a donation will be made to the SGK Foundation.  This is not new, it is not unique, it is not even special.  Hobbyists (scrapbooking, quilting, cake decorating) are probably drawn disproportionately from demographic groups that appreciate the appeal to very general (notice they are indeed VERY GENERAL) "biblical principles" the same way Starbuck's customers are drawn from a demographic that appreciates fair trade, and Dannon's customers are drawn to a company that contributes to women's health related charities.  For the same reason Avon runs the Avon Foundation, which is the other major breast cancer charity.  There are actually now consultants that work with companies to adopt and engage in such mission related marketing -- The makers of Tide, for instance, go around the country after disasters with semis that have mobile washing machine facilities so that people who have been forced to leave their houses have access to clean clothes.  See the tie in?

In the law of tax exemption, you must not only have a mission, you must run your enterprise according to specific governance principles. These include no distribution of earnings -- which must be used solely to further your exempt status, and a variety of other principles.  Importantly, if you engage in typically profit making activities as part of your enterprise, you will be taxed on the earnings of that activity -- "unrelated business income tax," or UBIT.

The point is, anyone can say anything about their own "mission," in business.  It's just a form of marketing, and the notion that it would be given the same deference that we might give to things like an individual's reluctance to work on the sabbath or refusal to shed religious headgear or any number of other things, is kind of crazy.  Yes, sorry, it's crazy. 

Do we believe Hobbly Lobby's mission statement?  Maybe one of the questions on the table is, Do we take the Greens at their word?

I take the Greens at their word. And, if they share their wealth generously with their employees and contribute to their community, more power to them. They will certainly get jewels in their heavenly crowns.

But they are not a charity or a church, however much they might be motivated by sincere religious belief, and my sense is to proceed with extreme caution about "rewarding" Christian ideals with federal regulatory exemptions. 

This probably isn't the greatest analogy, and I'm sure Barbara can best articulate why not, but I say a Hail Mary before every class period. I try to treat my students as the children of God that they are. But last time I looked, that didn't give me any special exemptions under the law. Not even if I advertise my piety (such as it is) on my "faculty information" page at the college.


Ooops, I see Barbara got in here before me. Trying to participate in discussions about Great Issues of Our Day at the same time you're supervising your kid's pruning activities in the back yard with the mega loppers ...

The point is that we can't challenge someone's sincerity -- not anyone's -- and it is incredibly problematic to turn federal courts into a forum for determining whether your religious beliefs are genuinely held.  Previous Supreme Court precedent understood that.  So here are some distinctions worth considering:

1.  In the Lee case, the employer objected to Social Security (he was a sole proprietor) on the grounds that the Amish take care of their own.  The court refused to infer an exemption that would have the effect of depriving a person's employees from being able to get Social Security benefits (as this person's desired outcome would have).  So, the principle is: it's one thing to profess sincere religious beliefs that would penalize yourself financially, but we must be very skeptical where those beliefs would mainly penalize other people, in the Lee case, as in Hobby Lobby, the employees. 

2.  Maybe I work at XYZ Charity because they hired me, not because I agree with their principles.  But the fact that XYZ Charity runs itself scrupulously so that all of its assets, and all of my work related activities, further its mission is what matters.  So, the principle is, by judging organizations based on their adherence to tax exemption principles, that is, whether they are truly run to further their mission, we don't have to care about -- much less test -- people's motives, except in very rare circumstances. 

No one can actually force HL to further its mission, which means, essentially, that its claims are incredibly cheap.  Indeed "nonadherence" in this case is financially beneficial as it would have been for Lee in the Social Security case.  The fact that it was a corporation is more than icing on the top, because it really subverts a large part of the jurisprudence on corporations, but this case would be problematic even if the Greens were sole proprietors or a partnership.  I hope the next time someone gets injured at Hobby Lobby they sue the Green's personally and use their statements in this case to prove that the company is their alter ego. 

The point is, anyone can say anything about their own "mission," in business.  It's just a form of marketing

Ok, Barbara, we'll put you down as one of the cynics.  But I disagree that a mission is "just marketing" in every case.  (Actually, I disagree that marketing is "just marketing", if by that you mean it is all an exercise in BS).  In the Greens' case, the very general statement in their mission statement that they are committed to serving the Lord is expressed in some pretty specific biblically-driven policies such as paying fair wages and honoring the sabbath that are contrary to maximizing their profit.  The Greens seem to be trying to balance several outcomes.

If Starbucks has figured out a way to profit by targeting consumers who find fair trade worth supporting  - then that sounds to me like an admirable business model.  If Hobby Lobby is profitable by selling yarn to church ladies, while treating its employees better than most retailers, then I say - hurrah for everyone involved.

Dannon, Starbucks, Tide - these brands are all owned by huge publicly traded corporations.  None of those companies, to the best of my knowledge, makes a religious-belief claim, and because they are publicly traded and have diluted ownership, none of them are eligible for special treatment under RFRA.  Toms (of which I had never heard before - thanks for bringing it to my attention) seems a lot more like Hobby Lobby.  I don't think Toms makes a religious-ownership claim, but it's owner's commitment to shodding the poor seems pretty sincere.  The IRS may categorize Hobby Lobby and Toms the same as it categorizes Procter & Gamble and Starbucks for tax purposes, but tax categorization doesn't tell us everything important there is to know about a company.  There are some not-for-profits that are also chiselers.  


Jim, you avoided the main issue.  And that is, you simply cannot know how sincere people are, and the corporate form, and tax exemption all exist for a reason. 

This is like the Yoder case, and Justice Douglas' dissent in that case has always struck me as wise:  the Court decided as it did because it trusted Amish parents, not because it actually thought that the law in question was overly burdensome.  The Move group, for instance, however religiously motivated, would never have received that kind of deference.  This puts the USG in the position of deeming some religious beliefs worthy and others not, unless you want to take the position that any religious claim trumps any law. 


Jim, sure sounds like Hobby Lobby is a business model that should be promoted. My guess is that it is rewarded (in addition to whatever heavenly treasure the Green's are earning Upstairs) with tax credits for their charitable contributions. 

Moreover, I have no beef with capitalistic money-making entities. We all gotta eat, and working for The Man is pretty much the only alternative (unless you ARE The Man) is the only practical alternative in our culture.

However, I'm not comfy with the idea that entities that do not primarily exist to promulgate their faith through mission activities should receive the same exemptions ... even if those corporations are owned by a very small group of like-minded individuals. If Hobby Lobby gets to opt out of providing contraception because the owners believe it's a sin, then why can't Jean's Java Joint opt out of providing maternity coverage for employees who have more than one child because Jean believes overpopulation is a sin? 


Jim, you avoided the main issue.  And that is, you simply cannot know how sincere people are, and the corporate form, and tax exemption all exist for a reason. 

Barbara, so sorry if I seem even thicker than usual, but I really am flummoxed.  If I missed the main issue ... it's because I think I'm still missing the main issue.  Clearly, a number of folks here think this combination of (in)sincerity, limited liability and tax exemption all add up to something that makes religious freedom for ownership a bridge too far, but for the life of me, I don't see the connections.  

JP - try reading this from a former SJ provincial:

Key points:

"......organizations—governments, corporations, etc.—exist as means to the end of human flourishing, without intrinsic value. To ascribe to a corporation the basic rights of a human being, therefore, is not just mistake, but a type of idolatry: putting a fiction of our own making on an equal status with a human being whose end is ordered by God; and then giving that fictional entity the authority to make moral decisions on behalf of natural persons. Though certainly not the intent of the Court, we do well to ask ourselves if the ultimate effect of decisions such as Hobby Lobby and Citizens United is to do more than grant disproportionate rights to the owners of corporations, but also to eradicate the distinction which raises the human person above a merely legal creation."

If Hobby Lobby gets to opt out of providing contraception because the owners believe it's a sin, then why can't Jean's Java Joint opt out of providing maternity coverage for employees who have more than one child because Jean believes overpopulation is a sin? 

I guess you could try, if you claimed that your view is religiously grounded.  Not that I'm a lawyer, but I believe that the courts would attempt to balance your beliefs against the government's claim that it has a compelling interest in ensuring that employees have decent maternity coverage.  My guess is that the government would prevail in that one.  



Bill, thanks, that is an interesting article.  I have to say, though, that the two cases at hand, the Hobby Lobby case and the Citizens United case, don't seem to illustrate his concern very well.  I don't see that anyone has a "natural right" to free birth control that requires that religious liberty be curtailed.  Nor do I see that any natural rights are being curtailed by permitting corporations to make political donations.

It might help the author if he understands that ultimately it is not Hobby Lobby's beliefs that are being protected; it is the Greens' beliefs.  If the Greens change their beliefs, or if they sell Hobby Lobby to Target Corp, then presumably Hobby Lobby's policies will change to reflect the beliefs and principles of its owners.  Thus, Fr. Whitney needs to consider whether the Greens have a natural right to religious liberty that extends into the public marketplace, and whether the government has a compelling reason to override that natural right in order to protect conflicting natural rights.  


Jim Pauwels,

How would the Greens' religious liberty be curtailed? A person does not have a natural right to enter into whatever contracts that they wish. The government has the power to regulate our commerce, including employment contracts. A group claiming a religious belief does not take away that power even if the belief is sincerely held.

The proper forum for weighing their claim of religious burden is the political process. This is what the Amish ended up doing with Social Security. The political process has the advantage of allowing for a negotiation where the majority and minority work together to find a way that allows the majority to acheive their goals in a way that minimizing the impact on the minority. It is also better at weighing both the sincerity of the claim and the magnitude of the burden.