Community Voices features opinion pieces from a wide variety of authors and perspectives. (Submission Guidelines)

How does the Supreme Court nullify thee? Let us count the ways

In the name of religion, the court majority granted owners of for-profit corporations special rights to deprive their employees of basic health care.

In the Hobby Lobby opinion read by Justice Samuel Alito, the U.S. Supreme Court majority showed itself to be elitist, patriarchal, and partial to religious views that mirror its own. In the name of religion, the court majority granted owners of for-profit corporations special rights to deprive their employees of basic health care. 

With apologies to Elizabeth Barrett Browning, the takeaway for employees seems to be, “How does the court nullify thee? Let me count the ways.”

1. Corporations are deemed to be people.

In the spirit of the “Citizens’ United” opinion of 2010, which gave corporations First Amendment rights for the purpose of political contributions, Alito wrote for Hobby Lobby, “Protecting the free-exercise rights of closely held corporations thus protects the religious liberty of the humans who own and control them.” That such protection allows corporate heads to trample on the rights of the flesh and blood people they employ was not mentioned. For Hobby Lobby, 13,000 employees with their own ideas on health care and religion are affected.

2. Corporations get to have their cake and eat it, too.

We little people might wonder why the people who create corporations get to be protected as neutral legal entities separate from themselves when it suits them (legal liability) and yet also are able to control the most intimate parts of their employees’ lives under the guise of “sincere” religious belief. After all, such sincerity would be clear religious intolerance (discrimination) if attributed to neutral for-profit corporations.  

3. Closely held corporations get special treatment because families own them.

Jane Ahlin
Courtesy of Jane Ahlin
Jane Ahlin

Alito spoke as if closely held corporations were a few special cases singled out for exemption instead of the vast majority of corporate interests. In truth, about 90 percent of corporations are closely held. Many are huge. As Justice Ruth Ginsberg pointed out in a footnote to her dissent, “Mars Inc. [the candy company], with 72,000 employees and $33 billion in revenue, and Cargill Inc., with 140,000 employees and $136 billion in revenue,” are closely held companies.

4. The government can pick up the bill for corporations.

Alito insisted the employees of Hobby Lobby wouldn’t be burdened because government can pay for health care benefits corporations object to the same way it does already for actual religious organizations. He is A-OK with taxpayers picking up the insurance tab for for-profit corporations in the name of religious freedom.

5. Corporations never will object to anything on religious grounds other than contraceptives.

Alito and his four cohorts — all middle-aged or senior Roman Catholic males — deny that they are setting precedent for corporate religious objections of all kinds and scoff at the notion that there will be lawsuits about vaccinations or psychiatric care or Sharia dictums.

Of course to be as intrusive as Hobby Lobby is into women’s lives (interfering in the privacy of doctor-patient decisions and even contraceptive choices for spousal lovemaking) it would have to be something along the lines of orthodox Jewish factory owners insisting that male workers prove they’re circumcised.

Much more likely are the religious objections corporations will claim toward people who are lesbian, gay, bisexual, or transgender. 

6. The Supreme Court knows sincerity when it sees it; scientific facts don’t matter.  

The court majority doesn’t say how “sincere” corporations will be sorted out from the opportunistic. Certainly, they don’t care that Hobby Lobby’s investments include pharmaceutical firms making both the contraceptives objected to in court and outright abortion drugs. Plus, Hobby Lobby buys from China where abortion is state policy. The court majority also dismissed scientific studies showing Hobby Lobby’s objected-to contraceptives do not actually cause abortion.

7. Although the ruling affects only women, the opinion isn’t gender-biased.

Because 99 percent of women use contraception as basic health care during their reproductive years, there would be no case without gender.

Cases about “religious freedom” are really cases about sex and who has the power to control it in society. Justices in the current court majority prefer corporations; they do not trust the people.

A writer and columnist from Fargo, N.D., Jane Ahlin also has taught English at Minnesota State University Moorhead.

WANT TO ADD YOUR VOICE?

If you’re interested in joining the discussion, add your voice to the Comment section below — or consider writing a letter or a longer-form Community Voices commentary. (For more information about Community Voices, email Susan Albright at salbright@minnpost.com.)

Comments (32)

  1. Submitted by Tim Walker on 07/07/2014 - 08:52 am.

    Well put, Jane.Last week was

    Well put, Jane.

    Last week was an especially brutal week for all non-corporate U.S. citizens, but especially female citizens.

  2. Submitted by Dennis Tester on 07/07/2014 - 09:42 am.

    What special rights?

    In the Hobby Lobby case, the only people who’s rights were in jeopardy were the owners of the business. The employees have no right to health insurance, employer-paid or otherwise. But the individuals who own that business have religious liberties guaranteed to them in the 1st Amendment of the Constitution. Try finding a reference to employee rights to health insurance in that document.

    Employer-provided health insurance subsidies are a gift that only exists out of the kindness of your employer’s heart. You’ll learn that lesson for real next year when the government tries to force employers to provide that gift and many, maybe yours, will opt out and pay a fine instead. Then horrors of horrors, you will be left to fend for yourself to buy your government-mandated health insurance as an individual.

    So you see, you haven’t lost anything other than a gift, and you certainly haven’t lost any rights. Those products you insist are vital for your very existence are still available at the corner CVS store.

    Corporations, like people, only have as much power as you’re willing to give them. If you don’t want them deciding what sorts of health benefits you should receive, you can choose to take your labor elsewhere, or you can opt-out of their offer to subsidize your health insurance. Because if you were forced to work there, then and only then, would you have an argument.

    What’s sad, and depressingly instructive, is that there are too many people in this society, generally the young and the clueless, who actually believe that they have rights that must be paid for by someone else.

    • Submitted by Luke Ferguson on 07/07/2014 - 01:44 pm.

      Options

      “Because if you were forced to work there, then and only then, would you have an argument.”

      So…the owners of Hobby Lobby are being forced to continue to own and run their business?

      Your logic works the other way just the same, no one is forcing them to retain ownership or keep the store open. If the regulatory environment in the form of required healthcare is too onerous for the owners, no one is forcing them to keep running the business. Maybe they’d like Canada better, no one forcing them to provide healthcare there!

    • Submitted by Jim Peterson on 07/07/2014 - 09:31 pm.

      What The 1st Amendment Actually Does

      Dennis Tester says”
      >>”…business have religious liberties guaranteed to them in the 1st Amendment of the Constitution.”

      Of critical importance in analyzing the intent of the establishment clause of the 1st Amendment is the unarguable fact that FOR THE FIRST TIME IN HISTORY, the founders created a constitution and government that intentionally prohibited religion from having any legal or governmental status whatsoever. The unambiguous intent was to reduce religion to no more than a legally powerless social convention.

      The implications of that?: IF Hobby Lobby as a “PERSON” was required by the ACA to purchase for personal use or distribution to employees the contraceptives in question, it could show legal standing and infringement. Simply paying an insurance premium is not infringement, there is no standing, SCOTUS has no jurisdiction and the case should never have been heard.

      • Submitted by Dennis Tester on 07/08/2014 - 07:56 am.

        Sorry, Jim

        But you’re wrong.

        “Congress shall make no law respecting an establishment of religion, or PROHIBITING THE FREE EXERCISE THEREOF;” explicitly instructs congress to avoid passing laws that restrict religious beliefs or practices, which is what ACA does/did.

        And they didn’t say that Hobby Lobby is a person. They said that the owners of Hobby Lobby are people with constitutional rights that are not waived because they happen to own a business.

        • Submitted by RB Holbrook on 07/08/2014 - 10:29 am.

          Sorry, Mr. Tester

          But you’re missing the point.

          The Hobby Lobby case was an interpretation of the Religious Freedom Restoration Act, which applies only to “persons.” The suit was not brought by the owners of Hobby Lobby as individuals, but by the corporation.

          Do you understand that there is a legal distinction between a corporation and its owners?

        • Submitted by Jim Peterson on 07/08/2014 - 11:29 pm.

          An Example of Twisted Logic:

          >>”Employer-provided health insurance subsidies are a gift that only exists out of the kindness of your employer’s heart.”

          No, Dennis, those and other benefits are part of the initial employment agreement between the employer and employee, known as an employee compensation package–e.g. wages and other inclusive benefits paid in exchange for labor performed.

          But using your ill-conceived assertion, all wages and compensation would be no more than “a gift that only exists out of the kindness of your employer’s heart.” Not many generations ago, that was known as slavery.

          In any case it’s a dishonest and unreasonable excuse for arbitrarily depriving employees of common health care coverage they have earned.

          • Submitted by John Appelen on 07/11/2014 - 07:16 pm.

            Twisted Logic

            I agree that Dennis was incorrect. (ie gift)

            It is actually part of a negotiation. (ie cash, 401K, insurance, position, responsibilities, travel, etc)

            In this case the Liberals are trying to stick their fingers into this free will negotiation. Trying to force one side to provide a form of compensation that is against their morals.

            Which is so silly to me since individuals can still use their cash to buy the benefit.

    • Submitted by John Appelen on 07/11/2014 - 07:05 pm.

      Excellent comment

      I had a woman at work tell me that she had to work in this company in that position. Talking about a painful way to live her life…

      I reminded her that employment is a free will choice. The employee can take their skills and knowledge to the highest bidder at anytime.

      Folks here also forget that companies who do not offer appropriate benefits will have a hard time attracting good employees, so they will need to pay more cash compensation. Which can then be used to pay for those morning after pills and IUD’s.

  3. Submitted by Matthew Salzwedel on 07/07/2014 - 09:53 am.

    Wow

    When a writer (an English teacher no less!) starts a column by poisoning the well, readers can usually expect, at best, superficial analysis, or, at worst, a screed.

    That’s what readers get with this column. My favorite: “Cases about ‘religious freedom’ are really cases about sex and who has the power to control it in society.” Huh? Support for that proposition?

    If you like overblown rhetoric, read on. But this intellectually and analytically lazy column adds little to public discourse.

    By the way, Congress could have exempted the ACA from the RFRA but chose not to. Don’t like Hobby Lobby? Petition your elected representatives to change the law.

    • Submitted by Logan Foreman on 07/07/2014 - 05:07 pm.

      Seriously

      Your advice to women in that position is to depend upon congress (and I mean small c)? Some of those clowns have trouble defining rape. Overblown rhetoric – how about a corporation that will not pay for the chosen birth control product of their female employees but will invest millions in drug companies who produce those very birth control products for their 401(k) funds? Smells like pure hypocrisy.

      • Submitted by Matthew Salzwedel on 07/08/2014 - 07:32 am.

        Actually, not serious

        1. In the US, Congress (Congress is capitalized, though I appreciate your attempt at cuteness) enacts laws that the President signs or vetoes. Don’t like a law? Work to elect representatives that will change it. Letting bureaucrats make public policy is a dangerous tack: you probably wouldn’t be too fond of it if it wasn’t your team making the rules.

        2. During the debate over the ACA, socially conservative Democrats voted for the bill only after receiving assurances from their leadership and the administration that it would not infringe religious liberty (e.g., the promotion of abortion). For the same reason, Congress chose to not exempt the ACA from RFRA. HHS issued rules that contradicted that legislative pact. Perhaps if HHS would have attempted to recognize fairly clear legislative intent, Hobby Lobby would not have needed to take its case to the courts.

        3. Who in Congress has “trouble defining rape”? Are you are referring to Todd Akin, the former Senate candidate in Missouri? He lost, and rightly so. And since women comprise about 19% of Congress, do they, too, have a “trouble defining rape”?

        4. It’s legally besides the point whether it’s hypocritical for a closely held company to invest passively in drug companies that make the same birth-control medication that the company doesn’t want to give its employees on religious grounds. Hypocrisy isn’t the standard under the 1st Amendment. I’ll grant you, though, that it’s terrible optics, and is probably a corporate policy that Hobby Lobby will consider modifying.

        • Submitted by Gerald Abrahamson on 07/12/2014 - 09:40 pm.

          Hobby Lobby not truly religious–by the owners’ definition.

          Hobby Lobby and its owners claim their “sincerely held religious beliefs” prevent them from offering various types of abortion.

          If that was true, then they could not invest in the businesses that create those products–for the exact same reason. Hobby Lobby wants the ROI on investment–and they ignore the fact the investments they make “kill babies” by funding the creation of the drugs that do the killing. Hence, Hobby Lobby’s REAL “sincerely held religious belief” is the right to impose their beliefs on others without being held responsible for the consequences (dead babies).

          Another issue not (yet) discussed: How do the courts know a corporation has “changed religions” or its “sincerely held religious beliefs”? Perhaps they change when they get sold. But then that means the corporation does NOT have “sincerely held religious beliefs”–it is only an extension of the *owner’s* ideas. Which means the corporate veil has been pierced by the Supreme Court’s decision. Now anyone harmed by a closely-held corporation can legally sue the owners because the Hobby Lobby decision implies the corporation is for tax purposes only. If the corporate shell applied to legal stuff, then the religion of the owners would be irrelevant because the beliefs of the owners would be legally separate from that of the corporation because the corporation must, by definition, be able to do “corporate stuff” that would be totally appropriate for a corporation that might be at odds with or even contradict the “sincerely held religious beliefs” of the owners. The owners know that fact when they create the corporation, so they can’t claim they “did not know”.

    • Submitted by John Appelen on 07/11/2014 - 07:18 pm.

      Excellent Comment

      I read the whole piece thinking who is this extremist writer and how did she get this posted on MinnPost.

  4. Submitted by James Hamilton on 07/07/2014 - 11:12 am.

    Legal opinons from non-lawyers

    are frightening things to behold. Ms. Ahlin’s piece ignores the legal reasoning of both sides in Hobby Lobby in order to score cheap points in a poltical debate.

    I have practiced law in Minnesota for almost 30 years. My experience includes one hard fought contest over municipal zoning and its application to churches, a fight my client won at the district court level. The SCOTUS decision in Oregon v. Smith was central to that case. The plaintiff’s claims were revived by the 8th Circuit Court of Appeals and remanded for further proceedings. See, Cornerstone Bible Church v. City of Hastings, http://www.ecases.us/571319 . Cornerstone became a footnote in the battle for passage of the Religous Freedom Restoration Act on which Hobby Lobby was decided. Thus, I have some understanding of the legal forces at play here.

    Despite the seemingly universal desire to treat the HL decision as little more than the latest battle in an on-going cultural war, the decision must be gauged, first and foremost, by the quality of its legal reasoning. Does it take into account all of the laws presented for its consideration and does it address those laws in a manner consisent with judicial practice? When looked at in this light, HL is a reasonable decision, i.e., it does address the laws on which the case was presented and it does, in my opinion, address those laws in a manner consistent with the rules governing statutory interpretation.

    This does not mean I agree with the decision, though I do think that the majority had the better legal rationale. Frankly, it was the dissent that strained to support its position in this case. I should note here that Scalia, the man castigated by so many for this decision, was the author of the decision in Oregon v. Smith, in response to which Congress almost unanimously enacted RFRA, which Bill Clinont then signed into law. Had Smith remained the law, it is likely that Hobbly Lobby’s claims would have been stillborn.

    As one of our Surpreme Court justices said in her confirmation hearings, our prior life experiences influence who we are and the decisions we make. Were the majority’s hearts pure? No more and no less so than the minority’s. Is it productive to rail against the fact that 5 Roman Catholic male justices formed the marjority? No more so than for conservatives to complain that the religious backgrounds and gender of the three women in the minority dictated their positions.

    It’s time to stop assuming that every position taken contrary to our own is the product of malice. It’s time to recognize, even in these polarized times, that people can and will disagree profoundly over certain matters but can do so legitimately.

    As for revisiting Hobby Lobby, that ball is in Congress’s court now. It can address the issue by amending the ACA or by repealing RDRA and its successor, RLUIPA. Of course, it won’t, because it, too, is too divided to actually consider the ramifications of what it wrought more than 20 years ago, other than to gauge the political value of these laws and their outcome.

    • Submitted by Matthew Salzwedel on 07/07/2014 - 12:44 pm.

      That comment was a joy to read. Thoughtful analysis of complex issues is possible if you do your homework.

    • Submitted by RB Holbrook on 07/07/2014 - 04:56 pm.

      Well, no

      This opinion was not good legal reasoning.

      The Court’s decision rests on the specious assumption that the corporation in question is a “person.” The Religious Freedom Restoration Act applies to “persons,” not corporations (and if you still take at face value the Court’s declaration of the limits of its decision, you have not been paying attention). Do corporations—even closely held, family corporations, have religious freedom rights? More pertinently, does a corporation have religious beliefs that exist apart from the beliefs of the owners? That leap of reasoning in the decision seems to be unprecedented.

      Second, assuming for the sake of argument that the RFRA does apply to a corporation, the Act prohibits only “substantial burdens” on religious belief. Did Congress really intend that any bald assertion of a substantial burden would suffice? The sincerity of a person’s belief should, of course, be given deference by the courts (even where, as here, that sincerity seems awfully situational—until 2012, Hobby Lobby seems to have had no problem with providing contraceptive coverage to its employees). In other words, under any normal practice, a party who claims the benefit of a statutory defense bears the burden of proving that it applies to them. Where is Hobby Lobby’s substantial burden? No one is forcing anyone to use a particular type of contraception. The burden on Hobby Lobby was that it had to choose between offering coverage and not receiving tax benefits for offering a medical plan. This burden is trivial.

      The majority opinion does violence to the statutory scheme of the RFRA. It is not a principled piece of jurisprudence; it is another volley in the culture wars.

    • Submitted by Jon Kingstad on 07/07/2014 - 11:07 pm.

      Legitimate disagreement and intellectual dishonesty

      It is indeed wrong to assume or attribute malice to those with whom we disagree. And indeed, it is true that every justice brings their own life experiences to bear upon decisions that they are expected to make. But I think we generally assume that the justices will at least make some effort to suppress their conscious impulses to allow their biases or personal religious convictions to override common sense.

      The Hobby Lobby decision is a case where that did not happen. Let’s look at just one part of the opinion:

      “According to HHS and the dissent, these corporations are not protected by RFRA because they cannot exercise religion. Neither HHS nor the dissent, however, provides any persuasive explanation for this conclusion.”

      Really? It’s necessary to support the assertion that “corporations do not exercise religion” with a “persuasive explanation”? It’s impossible to avoid the conclusion that a “persuasive explanation” does not exist for a majority which made up its mind how the case was going be decided before they read the briefs or heard the arguments. It recalls the decision in “Bush v. Gore” which was supposed to have been an outlier if you believed the majority who denied that it represented any precedent. I don’t think it’s really necessary to “assume” that five right wing white men on this Court have a political agenda which they are intent on carrying out, no matter what impact it has on the court’s reputation, to justice or the public interest in this country: the opinions speak for themselves.

    • Submitted by Rachel Kahler on 07/09/2014 - 09:04 am.

      What legal opinion?

      Not all opinions on the law or judicial decisions constitute a “legal opinion.” Legal opinion requires a certain set of attributes of the person giving an opinion for it to be legal opinion. As you pointed out, the author of the article isn’t even a lawyer, so this isn’t legal opinion. As a lawyer, you should know that. But then, I’m not convinced that, as a lawyer, you have put your best foot forward in understanding the implications of this decision. Already, it has resulted in further questionable judgement by the Court–allowing a college to continue to neglect to fill out paperwork that allows employees and students to pursue alternate coverage outside of the college that covers contraceptives. I understand that a legally binding decision hasn’t been made on that case, yet. However, the law currently is that the paperwork must be filled out in order not to impose such beliefs on other people, so it seems inappropriate to grant the injunction.

      Also, just because a person doesn’t have a law degree, doesn’t mean they’re not smart enough to suss things out. Conversely, a law degree does not make anyone magically smarter than anyone else. I’ve worked with plenty of attorneys. Some of them, I’m pretty sure, pulled a pass on the bar exam straight out of their keister.

  5. Submitted by Paul Udstrand on 07/08/2014 - 08:40 am.

    The problem with legal precedent

    One can’t assume that all previous legal decisions were right or well reasoned. Once you start basing legal decisions on previous bad decisions, or tortured interpretations of previous decisions, jurisprudence can devolve into little more than circular reasoning that produces progressively incoherent law.

    One thing it is to grant corporations certain legal rights, another thing it is to grant them personhood. Having granted them defacto personhood one goes on to claim that they have religious rights of the person, and since they are privately held they can impose their religious beliefs on their employees. So now corporate religious freedom trumps actually human religious freedom and the government can remedy that by picking up the tab. So now if you happen to work for a company owned or controlled by Scientologists you have no access to the mental health system because they don’t believe in psychiatry. No problem, the government can pay your psych bills. Listen, psych meds and treatment are A LOT more expensive than birth control. The poison pill here is the specious legal notion that corporate religious freedom is violated by the requirement that pay for employee health care.

    Furthermore, the whole notion of American Jurisprudence is supposed to be a basic premise that the law is accessible to the “people”. Mr. Hamilton seems to be assuming that without special knowledge an ordinary citizen cannot access the wisdom of the court. Now I’m not saying that no specialized knowledge is required, but that knowledge and training is required for those make the arguments before the court, not for those who are reading the courts decisions. And as our comments have demonstrated, even those with the legal training and special knowledge will frequently disagree. Mr. Hamilton may have argued a single case that was related to religious freedom once, but the Justices he’s disagreeing with have been grappling with such issues for years if not decades.

    • Submitted by John Appelen on 07/11/2014 - 07:27 pm.

      Free Will

      Somehow you think people will be forced to work for that Scientologist company that has non-competitive benefits. I am happy that I understand that employees have the power to choose where they work. It would be depressing if I believed I was forced to work where I am…

      • Submitted by Richard Helle on 07/13/2014 - 09:24 am.

        The unintended consequence

        This decision will hopefully, albeit painfully, point out the worst consequence of health insurance being tied to employment. Employers can do whatever they want. Employees then can either put up with it or leave, that’s true but for those employees with a lifetime invested in a company, leaving is not really an option.

        “Scientologists you have no access to the mental health system because they don’t believe in psychiatry. No problem, the government can pay your psych bills.”

        This one example, get’s to my point of unintended consequences. This decision may give traction to the move toward universal single payer health insurance. Once we decouple health insurance from employment then this kind of behavior by employers won’t be an issue.

        • Submitted by John Appelen on 07/13/2014 - 09:29 pm.

          Really

          “Employees then can either put up with it or leave, that’s true but for those employees with a lifetime invested in a company, leaving is not really an option.”

          The reality of our modern times is that employees had better stay current and ready to find a new employer no matter how many years they have invested in their current company. Two reasons:

          1. You can lose your job at any time.
          2. Why should your employer keep you around if your skills and knowledge are out of date?

          By they way, the employees are jumping more and more often also. The companies had best keep competitive benefits or the most capable and confident will move to greener pastures.

  6. Submitted by Paul Udstrand on 07/08/2014 - 09:55 am.

    It’s time face facts…

    We have a number of judges on the Supreme Court who are intellectually dishonest and prone to rendering legally specious decisions. I’m not saying that simply because I disagree with some of their decisions, I’m saying that because several of their decisions now have been the product of tortured logic and manufactured fact. Scalia literally just made up an Ancient Right of Self Defense and claimed it was part of the reasoning behind the 2nd Amendment. He just made that up and called it “Originalism”.

  7. Submitted by jody rooney on 07/07/2014 - 09:44 am.

    Here is some perspective Mr. Swift. Almost no women get

    pregnant without male assistance. If all men were required to raise the children they fathered and the women didn’t have health issues it would be a very different country.

    All societies decide who they are going to allow to die, people identified as enemies in war and the collateral damage, people without access to medical care, poor people, people of different castes, people who have committed horrible crimes. It is naive to think otherwise. Many of those people could be equally “innocent” of sin.

    Do those people deserve to die? How about you up your game on perspective.

  8. Submitted by Thomas Swift on 07/07/2014 - 09:53 am.

    I agree 100% that men who impregnate women are 50% responsible. We should ensure they get 50% say in the lives if their children, and hold them 100% accountable for that responsibility.

  9. Submitted by John Appelen on 07/11/2014 - 06:56 pm.

    Choices

    No one forces women to raise the children they conceive. (ie adoption, abortion, morning after pill, IUD, etc) This ruling still allows all of these options. What is your rationale in asking to force men to do so?

    The difference here is that you are trying to force a closely held company to buy the “gun” that will be used to kill that fertilized ovum.

    Assuming you are against capitol punishment, I assume you would be uncomfortable if you personally had to write the check for the lethal injection drugs to be used in a legal execution. Now imagine if you had to do it dozens of times a year.

  10. Submitted by Tim Walker on 07/07/2014 - 12:20 pm.

    I agree 100% that Thomas Swift has dodged the question.

  11. Submitted by Logan Foreman on 07/07/2014 - 02:04 pm.

    Surprised

    Hardly

Leave a Reply