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The Hobby Lobby Decision, why it's right, why it's wrong, and what to do about it

Opinions about the Hobby Lobby Decision

Generally speaking, I'm going to irritate just about everybody with this post, so get in line.

I'll begin by your irritating women, atheists, and Justice Ginsburg.

The Hobby Lobby decision was right. 

The Hobby Lobby decision was right. By "right", I mean "correct". In America, companies do have rights based on their ownership. They are allowed to make value decisions and judgments, right or wrong, based on the owners' own values. Owners are liable for the decisions a company makes in some cases. Therefore, to force an owner to betray their core values is unconstitutional.

Read the entire Burwell Vs Hobby Lobby decision including dissent by Justice Ginsburg

Realize, this doesn't apply to public companies. As an owner and a public company you can choose to own or not own stock based on a company's values. I'll never purchase tobacco company stock because I believe their core value system is fundamentally wrong. I do, however, own stock in other companies that I see as innovative and ethical. If one of these companies violates the law, I have the right to sell the stock, and I can't be held personally liable.

Privately held companies don't have the same protections as corporations. Closely held corporations and Limited Liability Corporations can commit crimes or be liable for their actions, and that liability can transfer to the owners in some cases. Because of this, the Supreme Court has decided that closely held corporations are permitted some leniency in situations where regulation violates their personal moral code.

Because liability is transferred (in a limited fashion) therefore rights of the owners must also be transferred in a similar limited fashion. For this reason corporations do have rights. One of our fundamental rights is freedom of religion. In this case, the Supreme Court was correct, upholding the freedom of religion for a corporation.

The Hobby Lobby decision was wrong. 

The Hobby Lobby decision was wrong. By "wrong", I mean "dangerous" to the rights of other Americans.

Generally speaking, we believe in individual rights when they don't impose on overall civil rights. For example, you are allowed to dislike people of a different race. You are not, however, allowed to use that dislike to inhibit a group as a whole.

That may seem cut and dried, yet, civil rights or process. In the 1860s, it was legal to own other people. Abolition didn't create equal rights, it simply defined people as individuals rather than property universally.

It wasn't until the 1960s that this former group of slaves were given rights to equal education, equal access to public transportation, and equal rights to voter registration.

It wasn't until 1990 that people with disabilities gained to these rights. As a landowning white man, I've had the right to vote since the original Constitution yet it was over 200 years before it was required that polling places become wheelchair accessible.

As anyone in a wheelchair, anyone who speaks other than English, and anyone with dark skin knows that even with all these rights, "equal" is a very malleable idea.

In respect to Hobby Lobby, legally they have the right to impose (in a limited fashion) the moral code of the owners onto the behavior of the company, in this case not purchasing health insurance that covers contraception.

The Supreme Court of the United States had the opportunity to change the law. Four out of nine Justices in fact, voted to do just that. In a beautifully worded dissenting opinion written by Justice Ginsburg, she eloquently demonstrated why the law, as it is, is dangerous.

Now, it provides privately held companies more discriminatory rights. Gay marriage may be legal, but now there is a case to be made that companies whom are morally opposed to same-sex marriage may not be required to abide by all of the rules associated with legal marriage. Other companies have already chosen the other route. Some companies were granting spousal privileges, such as insurance benefits and hospital visitation, to partners who couldn't legally marry.

Let's separate the Hobby Lobby decision from Christianity. Actually, most Christians use birth control, so let's narrow it down to only Christians who believe that sex is for procreation exclusively.

Suddenly, this is not a Christian issue. Suddenly the issue is of Christians that hold an extreme belief. Personally, I'm a Christian, and I hang out with many Christian people and almost all of us like sex. Very few of us consider sex as exclusively procreative.

If that's the case, this means that any value could ultimately be claimed as "religious" in nature.

  • Conservative Christians and conservative Muslims both hold that leadership roles should only be held by men. Does this mean that owners of a company can refuse to hire a female CEO?
  • Can ultra conservative Muslim companies require men to grow beards and women to wear a burqa?
  • Can a Wiccan company require its employees to dance undressed at the solstice and equinox?
  • Could a Rastafarian owned school bus company refuse the State the right to do drug testing on their drivers because marijuana is part of their religious celebration?

Suddenly we have an issue where virtually every behavior, or even individual characteristics, could violate a moral code.

It sounds extreme, but to many, corporations with the rights of a human being also sounds extreme.

So what do we do from here?

First, and many have brought this up, vote with your dollars. If you don't like the way a company does business, don't purchase from them. Generally, Hobby Lobby will likely overcome their religious fortitude if women stop shopping there in droves, or if they can't find enough employees to staff the registers. Capitalism has a way of convincing owners that morality is flexible. In this case, it could work to our advantage.

Boycotts, however, aren't a solution.

You see, there are some companies from which we must purchase products. Sometimes these are known monopolies such as utility companies. Other times, they are virtual monopolies, such as a grocery store chain that has a dominant presence. (A topic for another day is how Internet service providers are milking virtual monopolies.)

We can't effectively boycott every company.

Therefore, the law needs to change. But can it?

Absolutely! We need to encourage Congress and the Senate to build safeguards into this system of influence utilized by large privately held companies. Today there are many companies in the billions of dollars that are still not public. Additionally, some smaller public companies have managed to go private, or to sell off segments of their business to create new privately held enterprises.

We need to create a lie that establishes a dollar value for which a private company cannot impose its religious morality.

This will protect small companies. If you own a Jewish delicatessen, it would give you the right to only hire people of Jewish faith. If you own a $200 million chain of Jewish delicatessens, that right would be revoked.

But, the Constitution is universal, correct? Once a right, forever a right, right?

No, there is precedent.

The Americans with Disabilities Act states that public places and places that receive public monies must be accessible. For this reason, Hobby Lobby or the U.S. Postal Service, must abide by accessibility rules.

However, the Americans with Disabilities Act also recognizes that making something accessible to a wheelchair user is not the same as granting access to other minority groups. Permitting black kids to go to school, and sit anywhere on the bus they choose, is easy. Retrofitting a school and putting a wheelchair lift on a school bus, however is expensive.

Therefore, the Americans with Disabilities Act was interpreted by the courts to make it more fair.

Companies below a certain number of employees (in this case, fifteen) are permitted to take disability into account during hiring. If your small company with a sales force of three believes that a wheelchair user would not be well received as a salesperson, you may elect not to hire him or her. (I don't like it, but it is, in fact, the law.)

Additionally, due to costs of physical accommodations, private businesses and even some public entities are permitted leniency when it comes to retrofitting for wheelchairs.

For example, there was a major case in Philadelphia. Cities aren't required to retrofit curb cuts, however, when they make sidewalk repairs on a particular block, they are required to add curb cuts.

As more sidewalk repairs occurred within major cities like Philadelphia, it meant navigating a zigzag course through the city, as each corner gradually became more accessible.

To avoid expense, Philadelphia repaved some major streets, but did not make changes to the sidewalk. A group of citizens sued, and it was determined that repaving streets was a large enough renovation that the sidewalks (including ones that had already been fitted with curb cuts) must become accessible. The repaving process had specifically excluded sidewalks to save money, yet the process of repaving damaged most of the existing curb cuts. The Court determined that sidewalk repairs or street repaving both warrant the inclusion of curb cuts. If this hadn't happened, accessibility would have decreased as curb cuts became damaged during repaving.

Wheelchair accessibility was required for public transportation, however private busing companies fought this, the largest of which, Greyhound, lobbied heavily to become an exception. Ultimately this privately held corporation was required to make buses accessible, however they were only required to purchase new buses with wheelchair lifts. They weren't required to retrofit buses. This may seem fair, however the average lifespan of a bus is more than thirty-five years. This means that most of the buses purchased between 1980 and 1990 are still in service. Furthermore, due to Greyhound lobbying, the first accessible buses weren't purchased until 1994. It will be another fifteen years at least until every Greyhound bus is accessible.

Was the Greyhound ruling unfair? In my mind, absolutely, however that's how the law was interpreted.

Had everyone in America been angry at Greyhound for excluding us, and spending millions on lobbyists to make it happen, we could've boycotted Greyhound. Had this happened, the company would've retrofitted every bus within six months. Boycotting Hobby Lobby isn't the answer to the ruling, but it certainly helps.

There you have it. The Supreme Court was correct, technically. They were also wrong, because they chose to start us down a potentially slippery slope. Finally, we can do something about it, individually and collectively by voting with our dollars and communicating with our legislature.

Meanwhile, I'm going to go to Michael's because they sell top quality craft supplies, and the company is run more in line with my view that sex is really awesome and has many uses other than to procreate.

I would call a taxi… but unfortunately, 99% aren't accessible. Baby steps.


  1. Anonymous2:46:00 PM

    Interesting read, but I think you missed a major point of the issue. Those who are bringing the case see it as a right to life issue morally which stands over and above the laws of the land. For them, abortion is legal but immoral (from that perspective) becuase it terminates a life. That being said, you have to move to a distinction between 1) preventing a pregancy (i.e. the pill, vasectomy), 2) preventing implantation of a zygote (a fertilized egg by a drug), and 3) surgical or pharmaceutical termination of an embryo/fetus. Where does human life begin (i.e. conception, implantation, quickening, the will of the mother/parents, post-uterine viability, delivery), and then human rights start is what is driving the conflict. Your quote, "Christians who believe that sex is for procreation exclusively." misses a large portion of people who are very cool with sex outside procreation, but who think that once a life is conceived the game changes. You now are committing a violation of human rights by terminating that life (i.e. the morning after pills that prevent implantation and the other above forms of terminating a pregancy) if you fall into one of the camps that moves towards conception as the starting point of human rights. You have a whole category of peope (from their perspective) who are being denied the right to survive. It's a murky moral/ethical/theological argument, but it has somehow gotten lost in the political rhetoric. The question 'what is a human being' plays out very prominently in the arguments from both sides. If you hold that a zygote/embryo/fetus has rights then you head down one path. If you don't, you head down another with respect to these medical choices/decisions/rights. Should someone who stomach punches a pregnant mother be prosecuted for attempted murder? Some would say yes, some no. I get where you are coming with the legal logic, but it all stems (in my opinion) from where you fall on this question. Any thoughts?


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