Tuesday, March 4, 2014

Kent Greenfield's Hobby Lobby Op-Ed: "Unfair advantage would spur abuse of exempt status"

On Sunday, the Boston Globe published a cogent, concise and compelling op-ed by Kent Greenfield  on the issue of religious exemptions for corporations as raised in the Hobby Lobby case.

Professor Greenfield argues that corporations can have a conscious, but that corporations should not use religion to avoid regulations -- and thus gain a competitive advantage -- "claims of religious conscience could liberate companies to become bad actors in the economy and society at large. Instead of sacrifice, corporate conscience could devolve to sacrilege."

In last week's post, I took a similar position in my post on Hobby Lobby, "More or Less?".

-Anne Tucker


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I thoroughly enjoyed your piece last week and thought it offered a fresh perspective to the conversation.

Posted by: Kelsey | Mar 4, 2014 11:02:13 AM

Hobby Lobby is more like a conscientious objector than a business trying to gain an unfair competitive advantage. Is there any evidence that HL has gained a competitive advantage? Any plausible threat of someone successfully claiming their conscience requires them to pollute? HL's conscience claim is clearly sincere and has a longstanding history; granting it an exemption would have a minimal impact on the public.

Posted by: Kenny | Mar 4, 2014 4:16:29 PM

@ Kenny, I have no doubt that the owners of Hobby Lobby sincerely hold their belief, but that does not resolve this issue for me. I will concede that the exemption Hobby Lobby is seeking may not lead to a significant competitive advantage, although it would lessen their regulatory obligation relative to others. I'll even acknowledge that I am not presently concerned about a religious right to pollute. I am concerned about a precedent that establishes exemptions for corporate actors based on their individual owner's beliefs that may allow for a religious justification to treat women unequally (many religions restrict women from leadership positions) and engage in other forms of discrimination. I think it also raises a series of issues under securities laws, which will be the subject of an upcoming post. Thank you for reading, thank you for thinking about these issues, and thank you for the comment.

Posted by: Anne Tucker | Mar 5, 2014 5:49:18 AM

@ Kelsey, thank you for reading the blog!

Posted by: Anne Tucker | Mar 5, 2014 5:49:34 AM

The Court could and should enter a caveat to the opinion that this opinion only pertains the narrow issue of coerced provision of contraception. That will avoid the slippery slope. Then the legislature can act accordingly to amend the existing law to provide health coverage without a conscience violation. This would fix the unequal treatment of different corporations while respecting the bona fide religious convictions of individual business owners who choose to operate in the corporate form. To refuse to is making a political statement. Rights that are provided for through coercion of others should be limited to basic, natural rights (life, liberty and property). Contraception should not be classified in this way (negative of life), but should be an option for the individual to provide for him or herself at their own expense. Protected classes will receive the Title VII treatment, and pretext will be proved by the same means it has been.

Posted by: John Gallagher | Mar 5, 2014 12:09:59 PM

I thank Anne for posting a link to my op-ed and her kind words about it. I also appreciate the thoughtful comments above. Let me make a couple of points that bear emphasis.
Some (including Steve Bainbridge on his blog) have argued that the plaintiffs in these cases will not in fact gain a competitive advantage if they receive a waiver. I can see that point, especially if live births are more costly to insure than contraceptive care. But giving HL and the scores of other companies making similar claims the right to opt-out is essentially giving them an option as to whether to abide by the regulation. This option has a value greater than zero, even if it is never exercised or exercised only in low-gain situations. Those companies have a choice that other companies do not. (Note that Hobby Lobby formerly offered insurance coverage that *included* contraceptive care, before the ACA required it.)
This option is worth even more outside the ACA context. Remember that the tenets of various religions run the gamut. Segregation was defended on religious grounds, as is discrimination against LGBT people, as is the unequal treatment of women. My op-ed point about pollution was for rhetorical effect, but a holding in Hobby Lobby’s favor would not be limited to those companies claiming religious beliefs we consider within some kind of norm. It would not – and could not -- be limited to contraceptives.
Indeed, I think this case is *really* about gay rights. As the norm in the country is increasingly protective of LGBT people, the religious right is looking for ways to opt-out. Individuals always have a way to opt-out. You don’t have to invite people over for dinner you don’t want to host. But the rule has always been that if you’re engaged in business, you are held to the norms of the marketplace. A holding for Hobby Lobby would disturb that foundational principle.

Posted by: Kent Greenfield | Mar 7, 2014 11:45:57 AM

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