Support or Oppose Hobby Lobby Decision - Case Study Example

Lecturer Opposition to Hobby Lobby Ruling The ruling in the case of Burwell v. Hobby Lobby limited brought to the fore important anecdotes about how far religious freedoms can affect observance of certain laws by companies. To begin with, this case in anchored on the provisions of Affordable Care Act (ACA) that requires employers to provide medical insurance to employeesi. This paper will spell out why the ruling in itself was flawed and therefore establishing a dangerous precedentii to corporation law. For a very long time, corporation law had presumed that a corporate entity had a separate existence from its owners1 (Amicus, pg. 3 par. A; Arndt, 2014). Hence the amicus to the court rightly observed that for profit corporations have obligations, power and privileges different from the natural individuals who created it2 3(Amicus, pg. par. A). Brougher thus observed that it is only individuals who could be deemed to have any basis for protection of religious rights4 (2014, pg. pg. 7). Besides, given than corporations are separate from individuals making them, they cannot be regarded as having conscience and feelings necessary for one to form a religious basis such as a belief in a deity5 (Ginsburg, pg. 14, par. 1). An artificial person cannot therefore claim rights attributable to natural persons (Ginsburg, pg. 14, par. 1)6. However, Justice Alito, who ruled in favour of Hobby Lobby, did not see this separation7. He argues that shareholders, employees and other officers of a corporation should not lose their religious rights or other such personal rights on account of their membership to a corporation because in any case, a corporation is no more less than an organization by which these individuals use to achieve their desired goals (Alito, pg. 18 par III, Tushnet, 2013, pg.74)89. Thus, the protection enjoyed by the corporation by virtue of its status extends to benefit members of the corporation as well10. However, in my opinion, this thinking does not take into consideration the intention of the law. For instance, the limited liability clause protects shareholders, employees and officers of a corporation up to a certain extent (Alito, 2014 pg. 17 part III; Ginsburg 2014 pg. 4 part I), meaning that they have to operate within a given confine of the law. The majority judge decisions thus tended to overlook this fat of law. The decision of the judge means that a corporation can now be treated as a partnership or sole proprietorship. The separateness between the corporation and the natural persons making it is what is referred to as the veil of incorporation or the corporate veil (Tushnet 2013 pg. 76; ). According to the amicus to the court, the ruling of judges in a way tended to imply that this separation may be irrelevant with regards to ‘closely held’ corporations such as family businesses11. Conversely, whether a corporation is large publicly traded or small family business, cannot be ‘pierced’ unless in cases of misconduct or fraud on the part of the business owner12. Piercing of the corporate veil if permitted means that the business may have problems raising capital or even employing staff13 because the owner and the business are taken to be one and the same thing. This way, people will thus be wary of dealing with such an entity. Yet by disregarding the separateness between owners and the corporation for ‘closely held’ businesses, the majority ruling seems to have in a way pierced the corporate veil in what the amicus14 calls, insider reverse piercing15 which is requested by an insider to the corporation. Piercing the veil basically means that both the corporation and the owners are one and the same thing. However, such a move is likely to be disruptive to the running of corporations if accepted. For instance, numerous frivolous arguments such as which religion the corporation should adopt or whether it should adopt a religion at all are likely to be the order of the day. Another way of looking at it is ‘values pass through’16 whereby the majority can force their beliefs, religious or otherwise on the minority. This may lead to oppression against those opposed to majority view and may take the form of loss of jobs, exclusion from decision making and even stoppages of dividends. Piercing of the veil is normally done by the courts to achieve equity17. However, the effect of the ruling on corporation law means that sometimes piercing of the veil may lead to inequity. In the case at hand, permitting Hobby Lobby prayers to the court, competitors may find themselves at a disadvantage. This is because they will have to spend more in terms of health cover for their employees compared to Hobby Lobby. Amicus to the court insists that Hobby Lobby cannot have it both ways. It cannot seek to enjoy benefits of separateness on one hand and yet looking for protection from government regulation in the other18. This is the view that dissenting justice Ginsburg holds when she points out that the law should not be bended to favour owners of business19 like in this case. In fact, the right application of the law should be in favour of the business. The ruling was based on the Religious Freedom and Restoration Act of 1993, the judges having rejected the argument by Hobby Lobby that blanket provision of contraceptive to women infringed on its rights under the First Amendmentiii. However, it must be noted here that the Religious Freedom and Restoration Act which shifts the burden of proof to the governmentiv. In this instance, the government has to prove that the laws burden delivers in the minimal way possible. Anything beyond this is deemed to be a contravention of religious right of an individual. However, as aptly noted by the dissenting judge Ginsburg20, the ruling was too broad to an extent that it becomes vaguev. Consequently, it seemed to go over the intention of Congress by extending religious freedoms to profit based organizations. It has to be noted that the ruling even failed to acknowledge Hobby Lobby’s First Amendment argument explicitly21. It can thus be broadly applied. For instance, business owners’ religious beliefs against homosexuality may be reinforced, thus making it legal to deny services to gay customers or to violate a worker’s rights. In essence, the argument here is that by protecting religious rights of a commercial entity, itself expected to both hire and offer services without discrimination2223 whatsoever, it endangers the basic rights, religious or otherwise of those employees or customers when the owners of a business seek to uphold their religious beliefs. This therefore is dangerous because some people’s rights, enshrined under the First Amendment may be contravened. Amicus saw this and alludes to spillover effects not related to contraception24. The ruling also touches on the right of women to access medical care. The contribution of women in corporate life is largely dependent on their welfare. Indeed, Justice Ginsburg notes that one of the factors that have rolled down inequality in the corporate world has been the inability to control their reproductive health25. One barrier to access to reproductive healthcare has been the cost itself. For instance, women are estimated to be spending around 68 per cent more than men in out of pocket expenses26. What this means is that women are disadvantage on account of their gender and that is why corporations are being mandated, through legislation to provide reproductive healthcare as part of preventive care given that absence of such a service has put disproportionate burden on women27. The impact of such a ruling on corporations, especially with regard to women rights is well captured by the dissenting judge. She rightly observes that many women and their dependants who do not share the beliefs of their employers may end up being denied reproductive health28. In reaching its ruling, the majority judge’s decision, noted that the government already had a framework within which services complained of can be provided to Hobby Lobby2930 employees, along the lines under which the not-for profit organizations’ employees are covered. The argument is that for profit corporations are not only interested in profits alone. In fact, they engage in philanthropy activities such as control of environmental pollution and improvement of health. Thus separating them from the nonprofit organization does not make sense31. On the other hand, Justice Kennedy, in supporting the courts position, holds that provision of such coverage which means that employers are not allowed to cater for the costs is the only option where both the rights of employers and employees are not impinged32. In any case, there is no reason supporting the fact that the government cannot finance such a strategy33.This ruling by the judges is seen as less restrictive and does not in any way deny the employees their right to access reproductive health care of their choice. However, looked at it closely, it appears that they were keen on downplaying the separateness of corporations from its members. To further this line, RLIUPA, an amendment to RFRA which held that natural persons should not be treated differently3435. However, Ginsburg36 observes that even if for profit organizations were to engage in philanthropy is merely to enhance its business purpose. In any event, RLIUPA was focused on having the courts not to give prominence to centrality of religious beliefs3738. Corporations are likely to be negatively affected by the ruling in this case. One instance where this is likely to be prominent is the various anticipated lawsuits being brought by individuals and companies seeking various objections, following this landmark ruling. The implication of Hobby Lobby ruling is that in some instances, the religious beliefs of the employer are more compelling than the main interest of the regulationvi. Failure to give regulation prominence over the objection of the employer simply means that a door has been opened whereby employers can go to expeditions with the court. That it is possible the spirit of the legislation can be challenged and they can get concessions out of it. However, justice Alito holds that such disputes are expected and the law has provisions to deal with them39. In effect, the implication that employer’s beliefs may in some instances be accommodated under the RFRA is not wholly expected but at the point, there are no expectations that such beliefs are undeserving of being accommodated. What this means is that Justice Alito appears to have erred in his proposition that the rule was only aimed at minimal application and specifically with matters touching on reproductive health. It is therefore easy to see what sort of mess this throws up within the justice system. By guaranteeing this minimal concessions to Hobby Lobby, it becomes increasingly difficult to see how to handle other objections brought by employees and argued along the same lines of ‘seeking minimal restrictions not to abide by certain laws due o their religious convictions’. In effect, when employers are in a position of being able to choose which laws to abide by and which ones not to abide by, then it makes a mockery of the intention of legislation40. Legislation, as mentioned earlier, should not be something that an individual or employers or whoever it is, could be given an option of observing or not observing while others have no option whatsoever. It should be applied uniformly to all people under similar circumstances. That is why religious beliefs of a profit making entity should be separated from that of that of the owners. The owner’s religious beliefs, safeguarded by the law, should not extend to being regarded as the beliefs of the company. Apart from the danger that bosses can choose what to abide by and what laws to simply ignore because they are against the religious rights of the employer, the ruling also opens the door for bosses to overreach themselves in applying their religious freedomsvii. Take for example the Family and Medical Leave Act (FMLA) which requires that male employees be given unpaid child care leave. In an instance where the boss religious beliefs stipulates that the place of a woman is the house, and that it is the duty of the man to provide for the family. What happens when this employee wants a child-care leave for whatever reason? Will he be denied leave because by granting such a leave the employers will be going against his beliefs that men should work and provide for their families? This may seem outrageous, but the crux of the matter is that at this point in time we have no idea what employers, in pursuit or defense of their religious convictions might do41. Apart from the legalese involved in arguing this case, there is also the political implausibility. To this end, Justice Alito suggests that the government may provide some of the reproductive options not provided by the insurance companies because they are not provided for under due to employers’ religious schemes42. To anticipate that the government can provide some of these services is self defeating. Already, we have many legislators in congress who are vigorously opposed to Obamacare. There have been many instances where these legislators have failed to reverse the stride made by Obamacare. It is implausible to think that politicians who have severally tried to repeal Obamacare would kind heartedly accept a new government funded programme to provide women with morning after pills or the IUDs. Such thinking is far- fetched and does not take into consideration the existing political realities on the ground. It is therefore fair to say that the ruling by Justice Alito failed women and may be a stage at which some of the gains made in expanding access to contraceptives are rolled back. As noted by Ginsburg in her dissent, such an assumption that the government can fund reproductive healthcare needs for women which would otherwise be provided by their employers save for the religious objections is nothing but a fallacy. The ruling of the judges thus must take into consideration the possibility that their decisions can be implemented. This is because the role of the judges is not only to make right decisions, but also decisions that are possible of performance. Otherwise, decisions not possible of performance are a kin to a waste of time and a nullityviii. It can thus be rightly pointed out that failure to take into account the political dynamics of the country at this point in time and by extension in the foreseeable future, the Supreme Court has let down women role especially with regards to their rights to reproductive health. This, given that Justice Alito as averred that indeed access to reproductive health is an important aspect and compelling reason for government to intervene in the said situation. Conclusion I am opposed to the Hobby Lobby ruling because of the potential negative impact on corporate law and the fact that the majority judges erred by disregarding the separateness between the corporation and its members43. Therefore, this in a way goes ahead to challenge the definition of a corporation44. This is because a key plank of corporate law has been disregarded. The majority judges assertion that their decisions should apply only to ‘closely held’ corporation and not large corporations does not wash either. By taking this line, the judges have simply opened a can of worms; companies can opt out of some laws deemed disadvantageous and therefore gain undue advantage over their competitors4546. This is plainly unfair. Works Cited Amicus. Amicus Curiae Brief of Corporate and Criminal Law Professors in Support of Petitioners. American Bar Association.2014. Available at http://theusconstitution.org/sites/default/files/briefs/CAC_Merits_Brief-Sebelius_v_Hobby_Lobby.pdf Alson and Bird. Employee Benefits and Executive Compensation. 2014. Available at http://www.alston.com/Files/Publication/9211a0a5-e03f-415e-94fa-630bf7f19aaa/Presentation/PublicationAttachment/066506bc-0dc9-4831-ba86-65f5e2176ba8/14-553%20SCOTUS%20Hobby%20Lobby%20Decision%20-%20What%20Employers%20Insurers%20and%20TPAs%20N%20%20%20.pdf Arndt, Anya. Legal Precedent, Religious Freedom, and the Hobby Lobby Court Decision.2014 Web. Available at http://www.citizensproject.org/2014/07/15/legal-precedent-religious-freedom-and-the-hobby-lobby-court-decision/ Brougher, Cynthia. Free Exercise of Religion by Secular Organizations and Their Owners: Implications of the Affordable Care Act (ACA). Congressional Research Service. 2014. Available at http://fas.org/sgp/crs/misc/R43329.pdf Gans, David. ‘Can Corporations Pay’. Constitutional Accountability Centre, Washington. http://theusconstitution.org/sites/default/files/briefs/Issue-Brief-Can-Corporations-Pray-1.pdf Ginsburg, Justice. Burwell v. Lobby Stores, Inc. Supreme Court of the United States. 2014. Web. Available at http://www.scribd.com/doc/231974154/Ginsburg-Dissent Greenfield, Kent. Hobby Lobby Symposium: Hobby Lobby, “Unconstitutional Conditions” and the Corporate Law Mistakes. 2014. Available at http://www.scotusblog.com/2014/06/hobby-lobby-symposium-hobby-lobby-unconstitutional-conditions-and-corporate-law-mistakes/ Justice Alito. Burwell v. Hobby Lobby Inc. Supreme Court of the United States. 2014 http://www.politico.com/story/2014/06/hobby-lobby-ruling-full-text-pdf-108430.html Tushnet, Mark. “Do For Profit Corporations Have Rights of Religious Conscience?” Cornell Law Review. vol. 99 no. 70 pg. 70-86. 2013. Available at http://cornelllawreview.org/files/2013/12/99CLRO70-November.pdf END NOTES Read More