THR Blog   /   July 17, 2014

And Who Is a Person? The Problem with Hobby Lobby (Part I)

Guest Blogger

Hobby LobbyReactions to the Supreme Court’s Hobby Lobby decision have been immediate, visceral, and at times vituperative. Moreover, the tone of most involved in our ongoing debate regarding the place of religious institutions and actors in our common life has been, more often than not, either self-congratulatory or apocalyptic. In a kind of a Rorschach test of the American culture wars, the Court’s ruling in Hobby Lobby represents, on the one hand, the end of liberal democracy and the emergence of a patriarchal theocracy, or, on the other, simply the first step toward granting a small degree of vindication to persecuted minorities who want nothing more than to be left alone to practice their faith.

In this and a subsequent post, I hope to steer clear of the tonal extremes. The stakes are too high for sloganeering and rank partisanship. Rather, I hope to do two things: first, to introduce the basic facts of the case and the ruling, highlighting what I take to be the key conceptual underpinnings of the court’s ruling; and, second, to question the adequacy of the concept of personhood operative within the ruling. While it is clear that Hobby Lobby comes among a recent set of cases expanding the rights and protections of corporate entities, what concept of personhood, I want to ask, undergirds the court’s judgment that for-profit corporate entities can express religious beliefs? In a subsequent post I will take up the concept of complicity.

This analysis is offered in the hope that, by clarifying some of the central concepts at work in this case, a better argument can take shape. By “better,” I mean something akin to “less opaque,” and by “argument” I mean something like “common deliberation” wherein parties approaching the question from differing points of view can assist one another in coming to some degree of common judgment.

Hobby Lobby: The Facts of the Case

The facts of Burwell v. Hobby Lobby are fairly straightforward. Hobby Lobby is a closely held, for-profit company incorporated in Oklahoma that began as a single arts-and-crafts store and has grown to a chain of more than 500 stores with roughly 13,000 employees across a number of states. Here “closely held” signifies that Hobby Lobby is owned and operated by the Green family who started the company. Being closely held affords the owners a greater degree of control over the chain’s culture and a different degree of legal protection. According to Hobby Lobby’s statement of purpose, as a family business, the Green family desires to “honor the Lord in all they do by operating the company in a manner consistent with Biblical principles.” According to the Green family, this commitment has found expression in a variety of ways: Hobby Lobby is not open on Sundays, it pays above the minimum wage, it does not stock shot glasses, and so on.

The Greens claimed that such efforts to express their sincere religious beliefs within their corporate environment had been substantially and unduly burdened by a particular feature of the 2010 Affordable Care Act (ACA), passed by Congress, signed into law by President Barack Obama, and upheld by the Supreme Court. More precisely, the Greens held that the federal mandate to provide their employees with health insurance coverage for particular contraceptives that, in their view, take effect after the moment of conception makes them complicit in moral evil that is against the tenets of their Christian faith. Further, they stated, the federal mandate to provide such contraceptives violates their religious liberty. They do not claim that providing access to all forms of contraception make them complicit in moral evil, only that providing four of the 20 federally mandated forms of contraception listed under the ACA’s guidelines regarding “preventative care” do.

For its side, the government, both in its briefing and as represented by Solicitor General Donald Verrilli in the oral argument, did not dispute the sincerity of the Greens' religious beliefs but, rather, suggested that something like the “harmonious functioning of a society like ours,” which is, by all accounts, intensely and increasingly diverse in matters of religious belief and practice, was at stake. By this, the government called attention to one of the perennial questions regarding requests for religious exemptions from generally applicable laws—namely, the effects of religious exemptions on “third parties.” If, the argument goes, employees of Hobby Lobby have constitutionally protected rights to access to contraception (which they do), and under the Affordable Care Act, the owners of Hobby Lobby are legally obligated to provide health insurance coverage to their employees (which they are, or else they pay a penalty), does the Greens’ claim regarding the violation of their sincerely held religious beliefs justify the burden placed on some third party that would be responsible for providing contraceptive coverage? The government does not question the sincerity of the Greens’ religious belief regarding the beginning of human life or their claim that to provide insurance coverage for the four contraceptive devices and techniques would make them complicit in moral evil; it simply argues that the Greens’ desire for a religious exemption does not outweigh the government’s interest in ensuring that all women have access to the full panoply of constitutionally protected and FDA-approved contraceptive services.

What Did the Court Hold?  

In a 5-4 decision, the court ruled in favor of Hobby Lobby, determining that a closely held, for-profit corporation could, in fact, be granted a version of personal status that entails protections regarding religious liberty.

Writing for the majority, Justice Samuel Alito describes the court’s reasoning in three basic claims. In a sometimes sprawling opinion, the majority held:

  1. The Religious Freedom Restoration Act of 1993 (RFRA) “applies to regulations that govern the activities of closely held for-profit corporations” like Hobby Lobby.
  2. The Government’s contraceptive mandate “substantially burdens the exercise of religion.”
  3. Even though the Court assumes that the Government has a compelling interest in providing cost-free contraceptive coverage, the Government has failed to show that the contraceptive mandate of the 2010 Affordable Care Act is the “least restrictive” means of accomplishing that end.

Internal to the opinion (and a powerful dissent from Justice Ginsburg) is an attempt to delimit the reach of such a decision. Although some legal scholars have made the case that “from now on, only RFRA cases matter,” in deciding the case in favor of Hobby Lobby, the majority makes explicit that the “narrowness” of its decision is directly tied to the fact that Hobby Lobby is “closely held” and only applies in federal cases.

What proved decisive was the court’s willingness to extend religious protections to some for-profit entities and the application of the least-restrictive-means standard, which Alito characterized as “exceptionally demanding.” If the government’s interest in providing contraceptive coverage to female citizens is so great, Alito writes, “the most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections.”

But Who Is a Person?

What provoked Congress to enact the Religious Freedom Restoration Act? As the majority opinion in Hobby Lobby clearly states, RFRA was passed in 1993 in large part as a response to the court’s ruling in Employment Division v. Smith (1990). Authored by Justice Scalia, the ruling held that members of the Native American Church were not entitled to unemployment benefits after being fired for failing to comply with employment policies against illegal drug use. Although peyote was used for sacramental purposes, the court held in Smith that laws prohibiting illegal drug use were “generally applicable”—that is, not explicitly targeting religious belief or practice—and, as such, accommodations for religious use should be sought through legislative rather than judicial means. It is in response to this notion of “generally applicable” laws that RFRA was crafted.

And yet what was never in question in Smith, but hotly contested in Hobby Lobby, was the question of the petitioner’s status—the first step in the majority opinion. Who was it that was asking the government for a judgment regarding the legality of certain religious beliefs or practices? In Smith, the defendants were, by all accounts, persons in every sense of the term. In Hobby Lobby, this was anything but clear. While the “legal fiction” of corporate personhood has, of course, been operative within constitutional jurisprudence since the nineteenth century and serves a number of useful legal functions—allowing corporate entities to enter into contracts with each other, for example—at issue here was how far the concept could be extended. At what point does a useful legal fiction fail to be useful?

The majority’s reasoning is most succinctly stated in the second paragraph of Judge Kennedy’s concurrence. It begins:

In our constitutional tradition, freedom means that all persons [emphasis added] have the right to believe or strive to believe in a divine creator and a divine law. For those who choose this course, free exercise is essential in preserving their own dignity and in striving for a self-definition shaped by their religious precepts. Free exercise in this sense implicates more than just freedom of belief. . . . It means, too, the right to express those beliefs and to establish one’s religious (or nonreligious) self-definition in the political, civic, and economic life of our larger community.

So far, so good. But, Kennedy continues:

But in a complex society and an era of pervasive governmental regulation, defining the proper realm for free exercise can be difficult. In these cases the plaintiffs deem it necessary to exercise their religious beliefs within the context of their own closely held, for-profit corporations. They claim protection under RFRA, the federal statute discussed with care and in detail in the Court’s opinion.”

It is this move, this extension of protections to for-profit corporations (closely held), that has moved early commentary from the legal academy to conclude that the most enduring legacy of Hobby Lobby may not be in the area of religious liberty but, rather, in an expanded (and expanding) notion of corporate personhood. For their part, Senate Democrats—including some who helped craft RFRA in the early 1990s—protest on precisely this point. “When we wrote RFRA back in 1993 we did so to protect individuals with strong religious beliefs and give them the presumption they have always enjoyed. That they should be able to exercise their religious beliefs without interference from the government,” Senator Charles Schumer explained in a press conference introducing the Protect Women's Health from Corporate Interference Act, proposed legislation co-sponsored by Senator Mark Udall of Colorado, Senator Patty Murray, and others. Schumer continued, "The court took that and applied it—misapplied it—to for-profit companies who exist for the purpose of benefitting from the open market, working in the marketplace under our laws.”

Political realities make it highly unlikely that such a bill will become law, but the basic question posed by Hobby Lobby is how expansive the concept of personhood actually is. Can it rightly be stretched in such a way as to include for-profit entities, however sincere and uniform the religious beliefs of their owners, employees, or shareholders? The court has ruled that it can, but should it?

From the Legal to the Philosophical: Personhood and Recognition

The concept of personhood is vulnerable to political controversies, because, as German philosopher Robert Spaemann observes,  personhood has always been a nomen dignitaries—that is, a concept that, when applied, confers a certain amount of basic respect. “To ascribe ‘personal existence’ is,” according to Spaemann, “to recognize that someone can claim a certain kind of treatment from anyone who encounters him.” Persons deserve respect and protection. By the mere fact of being what they are, there are certain forms of treatment that are owed and certain forms of mistreatment that must be justified, if not avoided. In this view, personhood is not something that we ascribe to one another. It is not akin to the conferral of status that is the result of birth, some significant personal accomplishment, notoriety, and so on; rather, it is a concept that emerges through the phenomenon of encounter. According to this line of thought, personhood is something that can only be recognized, never conferred.

Arguably, the basic pre-legal philosophical question the court faced in Hobby Lobby was this: On what grounds can we deem a closely held corporation like Hobby Lobby the type of person that is capable of expressing religious belief and therefore be worthy of religious protections?

The majority argued that since the concept could include both individual actors (as in Smith) as well as some nonprofit corporate entities (such as churches), it could be extended to cover for-profit corporate entities as well. By extension, so the logic runs, if there are not-for-profit corporate entities that can have their religious liberties protected and it can be established that certain closely held, for-profit entities share some objectives with those not-for-profit entities (such as donating profits to charitable causes or expressing corporate convictions regarding the need to protect the environment, etc.), on what grounds are we to presume that closely held, for-profit entities do not deserve protections as well?

But if we are to be faithful to human experience, there is good reason to question this line of thought. In recent years, the question of personhood has been taken up by a variety of moral philosophers working within the tradition of phenomenology that extends at least back to Edmund Husserl and Martin Heidegger. For thinkers working within this tradition of thought, useful knowledge regarding the status of another is gathered between people. Rather than beginning from the premise that personhood is something that we give to one another, phenomenologists argue that it is something that exists prior to our cognitive assent and, as such, must be discerned. To be true to human experience, then, we should not (and properly speaking, cannot) begin by listing the properties and capacities that constitute the category person before searching hither and yon for an entity that possesses a sufficient quantity of those properties and therefore meets a threshold that gives us confidence that they are, in fact, a person. Rather, in relationship with others, we recognize what is already there—namely, another person, both like me and unlike me.

This is why, ironically, perhaps, one of the most fecund areas of thought for the phenomenology of human personhood has been the question regarding the pre-natal human life. As Oliver O’Donovan has argued, “We discern persons only by love, by discovering through interaction and commitment that this human being is irreplaceable.” Furthermore, as my colleague, James Mumford, has argued in his book Ethics at the Beginning of Life, attending to the phenomenology of human emergence through pregnancy and birth calls into question another legally useful threshold question, namely, viability.

So, how could the public debate around Hobby Lobby be enhanced by thinking phenomenologically rather than casuistically, as is the court’s wont? To start, it would refocus the object of analysis and call for detailed. first-hand descriptions of what it is we encounter when we encounter Hobby Lobby.

In a piece published before the Hobby Lobby ruling came down, conservative political theorist Patrick Deneen did just this. In a move that did not endear Deneen to his fellow conservatives, he marshalled Karl Polanyi’s critique of modern individualism to claim that making use of the concept of personhood to defend a big-box store that is, in every conceivable sense, part of a depersonalized global economy, is deeply and problematically ironic. It is also pushing a legal fiction beyond the limits of its historical or appropriate use. As Deneen writes:

How delicious he would doubtless find the irony of a “religious corporation” seeking to push back against the State’s understanding of humans as radically autonomous, individuated, biologically sterile, and even hostile to their offspring. For that “religious corporation” operates in an economic system in which it has been wholly disembedded from a pervasive moral and religious context. Its “religion” is no less individuated and “disembedded” than the conception of the self being advanced by the State. It defends its religious views as a matter of individual conscience, of course, because there is no moral, social, or religious context to which it can appeal beyond the autonomy of its own religious belief. Lacking any connecting moral basis on which to stake a social claim, all it can do in the context of a society of “disembeddedness” is seek an exemption from the general practice of advancing radical autonomy. Yet, the effort to secure an exemption is itself already a concession to the very culture and economy of autonomy

It would also require us to attend to the subject of my next post: the phenomenon of complicity.

Philip Lorish is a dissertation fellow of the Institute for Advanced Studies in Culture and a doctoral candidate in the University of Virginia's Department of Religious Studies.

Political cartoon: Adam Zyglis, The Buffalo News, March 31, 2014; used by permission.