What’s Not to Love about the Hobby Lobby decision? Let me count the ways.

James Bo Insogna (C) - All Rights Reserved. Flicr.com

James Bo Insogna (C) – All Rights Reserved. Flicr.com

As we approach the 50th Anniversary of the passing of the Civil Rights Act in the United States, we must consider the the potential legal ramifications the Hobby Lobby decision has upon the rights so many people fought and died for. Attorney and adjunct professor Monica Miyashita shares with us the very real legal issues that could could put a damper on the celebration of this monumental Act. 


What’s Not to Love about the Hobby Lobby decision? Let me count the ways.

**A special Commentary by Inspirational Butterfly, Monica Miyashita


The Hobby Lobby SCOTUS (Supreme Court of the United States) decision is a case of bad facts make bad law. Here’s the deal. Hobby Lobby argued that it should not have to pay for contraceptives under the Affordable Care Act ( “ACA”) if paying for such contraceptives contradicts the espoused religious values of its closely held shareholders. The SCOTUS, in a 5-4 decision, ruled that closely held corporations (which means corporations of 5 or less related shareholders) do not have to cover contraceptives if the corporation claims such coverage would violate its religious beliefs. There is so much wrong with this decision that we need to start at the beginning . Let’s go!
Supporters of the Hobby Lobby decision argue that the corporation already covers contraception, just not IUDs and variations of the morning after pill.

First, the decision was broad in its scope, despite the fact that the the SCOTUS at least arguably attempted to limit its ruling. Unfortunately the decision left a gap large enough to drive a Mack truck through. The majority opinion states that the ACA and the Religious Freedom Restoration Act (“RFRA”) when analyzed together, mean that the RFRA allows closely held corporations to exempt themselves out of contraceptive coverage requirements based on religiously held objections. In plain English, this means that corporations are people, and as people, they can hold religious beliefs as practices protected by both the First Amendment of the Constitution and the RFRA.
The problem with this logic is that it appears to assume that the religion in question will always be Christianity, or a mainstream practice of Christianity. This assumption may or may not be the case. The SCOTUS, by attempting to limit the application of its decision to a few closely held corporations with Christian owners, left the floodgates open to every manner of religious affiliation and belief system due to the provisions of the Establishment Clause of the Constitution, which prevents the favoritism of any one religion over any other.

Let’s see how this could play out.
1. Christian closely held company decides that obesity is a manifestation of the Christian cardinal sin of gluttony. As a result, said Christian company denies payment for any treatment arising from said obesity, as being a sin and anathema to the company’s religious values.
2. Amish closely held corporation claims that vaccinations are against its religious values, and refuses to pay for the vaccinations of its employees and their dependents.
3. Muslim closely held company claims that paying for heparin flushes, which contain pig intestines, and which are used to maintain clot free ports for chemotherapy patients, violates their religious prohibition against the use of any pork or pig related substances, and deny coverage of these medical supplies to cancer patient employees.
4. Christian Scientist closely held corporation denies coverage to employees of psychotropic medicines necessary for bipolar and schizoaffective disorder on the grounds that providing such psychotropic medicines violates its long held beliefs against medicinal treatments for psychological disorders.
5. Jehovah’s Witness closely held corporation denies coverage to childhood cancer patient for blood transfusions despite the fact they are a necessary and life saving part of the child’s cancer treatment. The refusal to cover the transfusion is based on the belief that transfusions are against the religious tenets of the Jehovah’s Witness tradition.
The SCOTUS has opened the door to such logical permutations of its own decision in this case. Good luck to SCOTUS in trying to make an argument which is non violative of the Establishment Clause, yet which also distinguishes examples 1-5 above from falling with the parameters and protection of its own Hobby Lobby decision.
Second, if corporations are persons, with religiously held beliefs, then what does that mean for the veil corporations wield which shields their shareholders’ personal assets?



One of the main reasons to form a corporation is to limit the exposure of one’s personal assets to lawsuits and liability. Of course, there is also that little tax issue that prevents corporate shareholders from being double taxed if the corporation is formed as an S corp. One thing that is clear from the law is that once formed, a corporation is a separate entity and the formalities of separation must be respected in all aspects, including finances, banking, taxes and employment matters. In every way, in order to garner the protection of corporate liability protection, an owner/shareholder must draw a line between himself/herself and the company.



So, it raises an interesting question as to whether a closely held corporation can both claim that it has a first amendment right to hold religious values while at the same time holding that the corporate entity is separate from the owner/shareholder so as to garner the protections of corporate liability. I can envision a Hobby Lobby employee suing the owner/shareholders personally, claiming that the owners/shareholders cannot clam corporate veil protection when the owners themselves speak for the moral and religious conscience of the corporation. Further, how exactly does a corporation practice religion? How does it go to church? Does it tithe? These, among many other questions of corporate personhood, raise troubling questions about what such a decision means.

Third, there is the whole moral consistency issue. I myself have been in Hobby Lobby exactly once, accompanying my mother there on an errand she had to run. I noticed that a majority, if not all, the merchandise in the store was manufactured in China. If Hobby Lobby is so against abortion, how does it justify buying products made in China, and buying from factories which use slave labour, in a country where forced abortions are common place? All I ask for is a little consistency from Hobby Lobby and its shareholders, and frankly, from its customers as well. The store’s Christian supporters need to hold it to a consistent standard on this abortion issue.

Finally, I am deeply concerned that this ruling opens the door to a huge backslide to the 1968 Civil Rights Act. What horror can’t be justified on religious grounds by some wackadoo group somewhere?! Think of a closely held corporation in which the owners/shareholders decide that African Americans are a larger risk to the insurance pool and so exclude them from coverage on espoused fundamentalist religions views based on some faux religious tenet. Are we finding this ruling disturbing yet? I would like to have more confidence in human nature not to test the boundaries of this legal ruling, but frankly, SCOTUS has left the barn door wide open for just such a disturbing challenge.


Monica Miyashita is an attorney, writer and adjunct professor. She enjoys a lively debate, and in her spare time tries to recuperate from such debates through an avid and relaxing yoga practice. She has three children, two cats, a husband and loves to travel the world with a backpack and sense of humor.

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