It’s not something I am particularly proud of, but I am a veteran of a few rocky relationships.
The story is usually somewhat similar. The atmosphere, on the best days, shifts to one of barely tolerating each other. Arguments begin to crop up – usually over things that seemingly shouldn’t matter much. You begin to forget or even dismiss the common ground employed to navigate the path you had previously shared. And then come the blowups, where the real issues come out. Turns out the tiff over laundry was really about sex and the argument about spending on clothes was really about extreme weight gains and the venting about a car in disrepair was one more high volume discussion of money. These threads exposed, things start to come apart at the seams.
At this point, you seek support and the opinions you find seem to stack up on your side. He is being a jerk or she is being a … a little bit unreasonable. In many instances there is no other solution than to end up in court and to dissolve a union that many – including you and your partner – thought might last forever.
But Civil Court is a crapshoot. Despite the best intentions to come to an amicable resolution, in reality there are often winners and losers. Thus begins another cycle of animosity – resulting in the short term in hard feelings, things you wish you wouldn’t have said and the collateral damage of unintended consequences.
The technical term for this is Irreconcilable Differences. For many these days it is all too familiar terrain.
What Actually Happened Here?
The recent United States Supreme Court decision regarding the Hobby Lobby case caused the internet to explode the day that is was announced. Why was this decision the one that launched a thousand memes and not any of the other seven decisions rendered by the Supreme Court in the last few weeks?
When asked this basic question, Auburn attorney and former Bay County Commissioner Brian Elder suggested, “If you go to Facebook for your opinions, you can see to a large degree, this is a proxy war for abortion and the Affordable Healthcare Act (ACA).”
Just like the arguments in a tenuous personal relationship, every argument actually comes back to some core disagreements. These days this often means the new battleground – “Obamacare” – neatly dovetails with the old battleground – Reproductive Rights.
It is a debate which rarely leads to civil or thoughtful argument, as it intertwines individual morals, personal freedoms and the role of government, all underpinned by a less than cordial debate about the place of religion in social policy. Once you take those into account, you don’t have a lot of room for common ground in today’s political climate.
One of the first things we ought to do is actually parse this story down into its key elements. The case centers around the objection of Hobby Lobby, a company with 575 stores nationally and approximately $2.3 billion in annual revenue, to providing insurance coverage within its benefit plans for certain birth control methods as required by the ACA. Their main complaints were that the company is family owned (in their estimation “closely held”) and that their religious beliefs conflicted with this requirement.
In a 90-page opinion, the Supreme Court, in a 5-4 decision, affirmed the right of companies “like Hobby Lobby” to reject the funding of the provision of certain birth control methods because of these values.
What the written decision did not do: Create the right to restrict coverage for most birth control pills, condoms, sponges and sterilization. What the ruling did cover: “morning after pills,” including Plan B and Ella, hormonal and copper IUDs.
On first blush, this would hardly seem to be the sweeping decision that one might expect from the public outcry. Despite language which would appear to attempt to limit the interpretation to the issues contained in the original suit, this decision is on the books and has the potential to impact other cases in which religious tenets conflict with federal law. As Elder put it “Precedent is precedent. I guarantee you that this week employers all over the country are going to their lawyers and asking ‘Can I do this? And what about this?’”
This was a very interesting comment as, unbeknownst to us at the time of our conversation, the Court has now issued instructions to lower courts that allows them to reexamine previous cases which involved similar issues. We did not have to wait for new lawsuits, as the Court seemingly drop their concern for expanding this ruling within a couple days of its rendering.
How Big a Deal Is This?
I first decided to contact Brian Elder because he seemed to be splitting the middle on the implications of the decision. Part of this is the outcome of a trained legal mind and part would seem to be a basic understanding of practical realities.
“Every first year law student learns to diagram a case. The first thing you have to do is decide the key questions that are in play. In this case, there seem to be two key issues. First, what is the meaning of the term ‘closely held company?’ Traditionally this has not hard a firm definition, but it has been interpreted to mean family businesses. But this is a company with hundreds of stores. There are minority investors. Based on this decision, is Walmart a closely held corporation? What happens if you are talking about a chain with a thousand stores?”
Aside from the apparent broadening of the meaning of a “mom and pop shop,” Elder suggested that this ruling is the first time that the Courts have ruled that a private corporation “can willfully ignore federal law based on religious beliefs.”
The last part of this point is very important. On this point Elder indicated, “The Supreme Court has stated it will not try to decipher if religious beliefs have merit. They are simply accepted on face.”
In this instance it would appear the Court has created more questions than answers. What is a closely held company? This is still ill defined. It is simply bigger than we might have thought. Can a company have religious convictions, as a closely held company is simply an extension of the individual? Maybe, until someone asks for something repugnant to a majority. If the company doesn’t like a law, can it cite its religious foundations for a reason not to comply and in the process undermine the fundamental and constitutionally protected rights of its employees? Apparently, at least for now.
How big a deal is this? Potentially a pretty big one if you work for Hobby Lobby or any other corporation that holds very conservative values. The first time you have to purchase medicines outside your health plan, it will be a big deal. It’s going to take a few clarifying lawsuits to further interpret this ruling and in this fact, Elder takes some solace. “Realize a lot of the Jim Crowe laws were rooted in religious beliefs. Women’s rights before the 1970’s, the same thing.”
As Elder explained, “If you read The Bob Jones University case, the school stated they couldn’t be forced to integrate as they had religious objections to the races mingling and interracial dating. The Court ruled their beliefs could not trump anti-discrimination laws. When the lower courts take these rulings and continue to say ‘No, No, No,’ common sense always prevails.”
There seem to be other issues at play in the 5-4 decision – men versus women, Catholics versus Protestants, conservative versus liberal appointees. These issues arguably fan the fire, rather than fuel it. The construction of the Court has been a hot button since it was encoded into the Constitution and these are issues that will not be lost on Hillary Clinton or whichever Bush whose turn it is to run in 2016.
Predictions, Possibilities or Poppycock?
Let’s be clear, this is not the last showdown. Cases like Hobby Lobby are stern indications of the deep and intractable splits that exist in our culture. They are a result of two completely differing definitions of freedom. But, one thing is sure – no matter what the public sentiment or your personal view on the core issues of the decision – it is going to have impacts, short and long term.
Here are a few potential outcomes – small, medium and large; short term and long term:
• Most will remember the Chick-Fil-A case from several years ago. The management of the company let it be known – sans Federal lawsuit - that they were not supportive of homosexual lifestyles. The response in the marketplace was swift. While the exposition of these traditional values ingratiated a small number of customers, a much larger number of liberal or centrist consumers stayed away. The company quickly did an about face and has largely recovered its place as a purveyor of some of the better fast food sandwiches available.
Hobby Lobby’s customer base is rooted both in the crafting and artist communities, as well as the frugal home decorator. These customers are largely women. It is realistic to expect that some fair proportion of the market will – at least in the short term – desert the chain. Retail is a business of slim margins and any dip in sales is potentially significant.
• A majority of the products sold by Hobby Lobby bear the label ‘made in China’. For many years China has had policies leading to forced abortion. Although their ‘one-child’ policy recently has been relaxed, many forced abortions still occur there. So now that the company has prevailed with their ‘deeply held religious belief’ in denying women their freedoms, will they make an equally profound statement of faith by not buying any products from China as long as China maintains policies that lead to abortion? One can only hope their deeply held Christian beliefs are not ‘situational’.
• Some might say “Well, if you don’t like their policies, you don’t have to work there,” and in this sentiment, they are right. Benefits are one of the main ways of attracting and retaining good talent. If a company is known for offering a reduced or unattractive set of benefits, they will eventually feel it through a smaller candidate pool for key positions. Even for a “family” business, it takes talent to run a company this big.
On this front, birth control and the resultant ability for women to better plan pregnancies, has largely been lauded as a key tool in achieving workplace equity. This won’t be the last lawsuit. Wait until women start suing over the fact that they were held back in their careers over the perfectly natural acts of pregnancy and childbirth in a company that does not offer broad coverage for birth control products.
• This decision could be neutered by subsequent decisions. Mr. Elder cited as example Chaplinski v the State of New Hampshire, in which a Catholic man was absolved of pummeling a Jehovah’s Witness who showed up on his doorstep and offered an “inflammatory message.” While the court originally upheld the right of Mr. Chaplinski to react in this way, subsequent common sense rulings in the lower courts rendered this decision moot.
This is particularly important in light of Ruth Bader-Ginsburg’s minority opinion, which asks if this protection could be expanded to other religious convictions. The use of blood transfusions, antidepressants, and vaccinations all carry objections from well-established religious groups. Let’s assume we know what the outcome will be the first time a Muslim contractor decides that he prefer that crews not eat ham sandwiches on his job sites. It is a real possibility that a few absurd suits just might gut the Hobby Lobby decision.
• One ironic outcome might be that there is increased interest in an expanded social medicine system. Most people don’t have a lot of tolerance for employer interference with their personal life. With the ACA in place and some trend toward small to medium companies using the coverage available through State insurance marketplaces in place of private company-sponsored policies. If the coverage offered in these plans turns out to be broader than that offered under employer funded plans, there could be increased interest in the public option. If you add in the benefits of the playing field leveling that takes place when a corporation removes a large portion of medical insurance benefits from its books, Hobby Lobby could conceivably be a turning point in the larger health care funding debate.
• In a development that might cause Ayn Rand to break out in a posthumous grin, big companies might simply choose to go private – allowing them to implement a broader set of corporate policies that support their worldview. Having intentionally extracted a huge proportion of the value of the Stock Market – leaving mainly inflated electronic money in its wake – the One Percenters are largely trading equities amongst themselves. They could exert a lot more control if they decided to develop their enormous “closely held” enterprises that have the ability to dictate employee behavior in return for the privilege of employment.
Just like a divorce, the stresses might become too much and we just might eventually be forced to split. While there would be logistical issues if the conservative Midwest and the South pulled out of the Union, leaving the more liberal East and West Coasts to their own devices, it is not the most inconceivable outcome. If you trust the Internet there seems to be almost as much support for this outcome as any. Court decisions and Administrative policies deepen the division, acting again as a proxy for a cultural war.
A continent containing two countries – the Divided States and ‘Merica? Possibly. But that doesn’t sound like the kind of solution that you reach in Court.
16th November, 2023