Hobby Lobby Reactions: Sally Kohn Gets So Much So Wrong In Just One Article

I almost thought I wouldn't have anything to post today.  Then the Supreme Court issued a 5-4 decision in Hobby Lobby, and I have reams of reaction articles to choose from.  And from that group, Sally Kohn's piece for The Daily Beast is the runaway winner.  Why?

Well, let's get to it:

In its much-anticipated Hobby Lobby ruling, the Supreme Court has ruled by the usual 5-4 margin that closely held corporations cannot be required to provide contraception coverage. The ruling was narrowly tailored to apply only to the Obamacare contraception mandate and no other insurance mandates and explicitly does not shield employers who might rely on religious grounds to justify other discrimination. 

Wonder of wonders, Kohn starts with a fairly straightforward description of the Hobby Lobby decision: It held that close corporations - not large, publicly traded ones - are entitled to an exemption from the Affordable Care Act's contraception mandate if they have a religious objection to providing contraceptive coverage.

There are some critical facts and bases for the decision left unsaid, but hey, it's an opening paragraph.  Maybe they'll be discussed later?

Nope.  Guess we'll have to take care of that as we go, huh?:

That said, while the ruling could have been worse, it's still dumb.At the heart of both Hobby Lobby and its sister case Conestoga Wood is the requirement under the Affordable Care Act that employer-provided health insurance plans include coverage for basic preventative care. The law outlines what such preventative care encompasses and includes contraception. Contraception is, after all, by definition prevention. But two private for-profit corporations, Hobby Lobby and Conestoga Wood, both argued that for their insurance plans to be forced to cover contraception would violate the companies' freedom of religion. Hobby Lobby, which sells arts and crafts materials, is owned by devout Southern Baptists. Conestoga Wood, which makes wood cabinets, is owned by conservative Mennonites. 

So far, still so-good ... mostly.  Kohn is correct that "basic preventative care" under the Affordable Care Act "includes contraception".  But she omits that Congress left the determination of precisely what types of contraception to HHS.  And she falsely paints a picture of Hobby Lobby (and Conestoga Wood, etc., but we'll just refer to all the plaintiffs as Hobby Lobby, from now on) as objecting to all forms of contraception.  That's not the reality; in line with their belief that life (for religious purposes) begins at fertilization, Hobby Lobby was fine covering contraception that prevented fertilization (such as birth control pill).  Hobby Lobby only objected to providing coverage for forms of contraception that prevented implantation of an already fertilized egg, considering that to be the moral equivalent of abortion (since preventing implantation results in the destruction of an already fertilized egg). 

The Court ruled in favor of Hobby Lobby and Conestoga. In her dissent, Justice Ginsburg bristles at the majority's "decision of startling breadth." Justice Kennedy tries to argue otherwise in his concurring opinion, arguing that the majority opinion "does not have the breadth and sweep ascribed to it by the respectful and powerful dissent." And yet majority opinion held that corporations are "persons" under the Religious Freedom Restoration Act! That's huge!

I suppose it's to be expected that a columnist who agrees with the dissent would adopt the view of the dissent.  But while "h[olding] that corporations are 'persons' under the Religious Freedom Restoration Act" may be "huge" (in that it has large implications), it also was fairly clearly the right result - and definitely wasn't "dumb."

The RFRA, by its terms, applies to "persons" - but doesn't incorporate a special definition of the term "persons" just for the RFRA.  As a result, unless the context of the RFRA requires a different result, the term "person" in the RFRA is to be understood as provided for in the Dictionary Act (a law that provides default definitions for terms used in other laws).  The term "person" is defined in the Dictionary Act as including corporations.

In other words, if you want to exclude corporations from the scope of the RFRA, you need to show that the context of the RFRA demands that the term "person" be limited to flesh-and-blood individuals.

But, with all due respect to Justice Ginsburg's dissent, that's impossible.  Even the dissent recognizes that the RFRA applies to religious or not-for-profit corporations - and those are not flesh-and-blood individuals.  Thus, to exclude for-profit corporations from the scope of the RFRA, the term "persons" in the RFRA would need to be understood as referring to "flesh-and-blood individuals and some-but-not-all corporations."  As the majority correctly points out, while there are some statutes that use "person" to mean "only flesh-and-blood individuals," and others that use "person" to mean "corporations too," there is no statute in existence that uses "person" to mean "flesh-and-blood individuals and some-but-not-all corporations."

Thus, while Justice Ginsburg focuses on whether Congress expressly announced an intent to include "for-profit corporations" in the definition of "person" as used in the RFRA, it seems more reasonable to say that unless Congress expressly said so, the RFRA did not use "person" in a way unique to it and distinct from every other use of the word "person" in American law.

Indeed, while Kohn paints this decision as 5-4 (and it was 5-4, on the merits of the contraceptive challenge), both Justice Kagan and Justice Breyer reserved decision on the issue of whether for-profit corporations could bring claims under the RFRA.  On this issue, only 2 Justices agree with Kohn.  The other 7 are either "so wrong" or, at a minimum, open to being "so wrong."

While the court limits part of its ruling around the contraception mandate to closely held corporations (defined by the IRS here), the essence of the decision is a profound and radical shift in corporate rights.  Both companies currently provide health insurance to their employees, which is what makes their plans subject to the preventative care requirements under Obamacare. And both companies say they don't object to all contraception, simply drugs or intrauterine devices that prevent pregnancy after fertilization, contraceptive methods that folks on the right mis-label and malign as "abortifacients." That characterization is factually, scientifically untrue.

And here is where Kohn starts to really go off the rails.  So far, the worst thing Kohn has done is leave the mis-impression that Hobby Lobby objected to all contraception - and she just corrected that here.

But in arguing that it is "factually, scientifically untrue" that the contraceptive methods Hobby Lobby objects to are abortifacients, Kohn misses the point entirely.  Hobby Lobby doesn't consider the contraceptive methods "abortifacients" because they have a mistaken factual view of the contraceptive methods' operation.  Hobby Lobby considers them "abortifacients" because they result in the destruction of a fertilized egg.  Kohn is free to argue that Hobby Lobby should be using a different word to express "prevention of implantation of a fertilized egg"; she has no business at all arguing that religious people have no right to a religious belief that "prevention of implantation of a fertilized egg" is severely immoral.  That's what freedom of religion means.

But it gets worse:

In fact, it's worth noting that Hobby Lobby actually provided the contraception coverage before it dropped it and decided to sue.

This argument is either knowingly disingenuous or terribly misinformed.  First, the insinuation that Hobby Lobby is faking its religious objection is as irrelevant as it is odious.  This is one occasion on which being precise about who the plaintiffs were is important.  Even if Kohn were right that Hobby Lobby once was fine covering these contraceptive methods, what about Conestoga Wood?There's no similar argument to be made about them, so even if the Court were to conclude that Hobby Lobby's religious objection were insincere, the issues raised by the case would need to be decided anyway.

Second, the insinuation is simply wrong as a matter of fact.  Hobby Lobby did cover two of the methods at issue - for a very short period of time, when a change in its plan formulary included those methods.  The district court found that this coverage was "due to [] a mistake," that the drugs were "immediately excluded" once Hobby Lobby realized they were covered, and the government did not dispute that.  

For the Court to even get to its ruling that the contraception mandate "substantially burdens" the exercise of religion, it has to believe this bunk science.

 Again, no.  Setting aside the intervening sentence (which had nothing to do with science, "bunk" or otherwise), the only thing the Court had to do to "even get to its ruling" was determine that Hobby Lobby had a sincerely held religious objection to the challenged contraception methods.  Whether Kohn wants to call the contraceptive methods abortifacients or anti-implantatories or make up some other name for them is irrelevant.

In fact, there's a reason the dissent did not once address the science of whether the birth control methods were "abortifacients".  That reason?  Because it was irrelevant to the legal issues involved.

In other words, all nine justices, regardless of where they came out, disagree with Kohn on this one.  That's an impressive amount of "wrong" all by itself.

But wait, there's more.

Moreover, in a free and secular society, birth control is about medicine and science and personal health, not religion.

Perhaps.  But only if your definition of "secular society" is a society that definitively rejects religion. And if that's the case, then while America is a "free" society, it isn't a "secular" society.

If, on the other hand, your definition of a "secular society" is "a society that leaves issues of religion to the consciences of its citizens," then America is a "free and secular society."  And in that type of "free and secular society," religion absolutely plays a part in what "birth control is about" - at least for citizens that have religious views impacting on it.  The same way religion plays a part in what "abortion is about" or "social justice is about," for example.  

Further, the ruling in part eroded the distinction between religious non-profits (which were already exempted from parts of Obamacare) and private corporations. If you think going to the mall is like going to church, that makes sense. To everyone else, it's nuts.

Not really.  Again, it goes back to that pesky thing called "the law," which already includes corporations in the definition of the legal term "person" and generally doesn't distinguish between "religious non-profits" and other types of corporations; as a general rule, they're all in, or they're all out.  The "distinction between religious non-profits ... and private corporations" that Kohn worries is being eroded is a creature of her own imagination.

The Supreme Court had already granted all kinds of other special rights and powers to corporations — including "corporate personhood" or the right for businesses to be treated as people under the law.

First, as the above discussion should make clear, defining corporations as "persons" isn't a creation of the Supreme Court.  Congress, in the Dictionary Act, defined the legal term "person" to include corporations.  If Kohn has an issue, then she should take it up with Congress.

But be careful.  Corporate "personhood" is what lets corporations do things like enter into contracts, sue and be sued, be subject to regulations, etc.  In other words, to exist.  

And because corporations are people, the Court has ruled that corporate spending to influence elections is equivalent to speech and cannot be infringed. At a time when economic inequality is reaching record highs and support for big business is at an all time low, the Supreme Court has consistently seen fit to confer more and more power and privilege to already powerful and privileged corporations. At a time when we should be putting more checks and balances in place for corporate America, the Supreme Court is loosening the reigns.

I'll leave aside the opinion paragraph, except to suggest that perhaps Kohn's ideological desire to "tighten the reigns" on corporations might, possibly, conceivably, be impacting her POV on the Hobby Lobby decision a bit?

Maybe?

Moreover, this case is a perversion of religious freedom. Our values of religious freedom and tolerance were meant to protect individuals in our nation from the tyranny of government and business. Recall that in the earliest days of American history, it was not only the King of England but the powerful East India Company out from under the mutual thumb of which American colonists were trying to crawl.

I'm sorry, but what text of the First Amendment does Kohn have?  Mine starts with "Congress shall make no law . . ."; no reference to "business" or "corporations" anywhere in it. Private citizens have every right to run their businesses in line with their religious beliefs.  And Kohn and like-minded compatriots have every right not to patronize them.  That's what freedom of religion is about.

Moreover, as I have written previously, freedom of religion explicitly includes not only the freedom to practice one's religion but to be free from the imposition of someone else's religion. The owners of Hobby Lobby and Conestoga Wood cannot be allowed to impose their religious beliefs on their employees.

And this was nonsense when Kohn wrote about it previously as well.  The owners of Hobby Lobby and Conestoga Wood are not "imposing their religious beliefs on their employees."  The employees are free to buy the contraception of their choice themselves, are free to have abortions, are free to be atheists or Muslims or Jews or even Presbytarians.  The business owners are not requiring their employees to act (or refrain from acting) in accordance with the owners' religions.  There is literally no sense of the phrase "imposing my religious beliefs on you" - other than in Orwell's Double Speak - that incorporates "having my religious beliefs and behavior impact you."

But it's the conflation of these points that is truly frightening: the idea that in continuing to give corporations more and more unchecked power and reign, we are giving them the power of religious tyranny — the ability to wantonly and unilaterally impose religion as they see fit on their workers and perhaps more. Under such a ruling, it's not far-fetched to imagine companies (genuinely or disingenuously) claiming religious exemptions in refusing to serve gay customers or denying health insurance coverage to the multi-racial child of an employee.

And to make those religious claims stand up, the employer would:

1) Need to convince a court that their religious beliefs were sincerely held;
2) Need to convince a court that their religious beliefs were imposed on by the government regulation at issue; and
3) Need to convince a court that there was a narrower available way to accomplish the government goal.

Let's take Kohn's parade of horribles, for example.

What religious belief would provide a basis for objecting to provide health coverage for a mixed-race child of an employee?  Don't say anti-miscegenation, since providing or not providing coverage wouldn't actually impact the "miscegenation" itself - and therefore would not burden the employer by making them complicit in the "moral wrong."  Same for "not serving gay customers"; absent an argument that serving gay customers is in and of itself morally wrong, there's no burden.

And what, in each of these hypotheticals, would be the less restrictive means of accomplishing the government's compelling interest in fighting discrimination?  Hard to say, given the hypotheticals themselves.  Kohn certainly doesn't bother trying.  But wait, she gets worse

In fact, what would stop companies from saying that their religion makes them opposed to taxes or obeying pollution regulations or you name it?  Just what we need in America, more corporations with more excuses to not play by the same rules that ordinary Americans have to obey.

I don't know.  Perhaps - and I'm just spit-balling here - the express language in the majority opinion explaining why taxation can't be subject to a religious exemption??

And that language - that taxation only works as a collective obligation, and that religious exemptions would inherently upend the entire scheme - works just as well for pollution.

It's almost as though Kohn didn't bother reading the decision she's criticizing.

But in its rulings, this Court repeatedly gives more power to the interests of already-powerful corporations than the needs of the American people. In her dissent, Justice Ginsburg writes, "The exemption sought by Hobby Lobby and Conestoga would override significant interests of the corporations’ employees and covered dependents. It would deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage that the ACA would otherwise secure." Except the majority ruling makes clear the interests of those women simply don't matter as much as the whims of corporations.

In fact, you can call this Exhibit 2 supporting the theory that Kohn went straight to the dissent. Because what the majority ruling makes clear - by, again, you know, saying it expressly - is that they reached their decision primarily in reliance on the fact that no employee would actually lose coverage for even a single drug.  How is that possible?  By extending the "religious corporation alternative" already employed by HHS - requiring the insurer to cover it, without cost sharing to the employer - to for-profit corporations with religious objections.

Let's all pray to the corporate gods who control our elections that someday we have a Supreme Court that values the American people more than big business.

I'd prefer to limit my prayer to more major things - like the safe return of Eyal Yifrach, Gilad Shaar, and Naftali Fraenkel, who were (it turns out) murdered by their kidnappers.  But if I were in the mood to pray for frivolous things, it would be for less-ideologically blinded articles for me to blog about.