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Hobby Lobby, the national chain of craft stores, has been performing a kind of solo act of defiance of law by refusing to close stores around the country because its owners would like to stay open during a pandemic. This follows three weeks of insistence that it wouldn’t close, a summary firing (by email) of staff, and then a grand reopening in select states in violation of shelter-in-place orders. Is any part of you somehow surprised that Hobby Lobby believes itself to be above the law?
After all, just a few years ago no lesser an institution than the U.S. Supreme Court announced that the company could simply ignore federal law when it wanted to deny contraceptive care to its employees. Having been blessed with the right to skirt the law as it sees fit, regardless of the harms it rains down on everyone else, Hobby Lobby strides into this pandemic self-certain, anti-science, and at war with the country—just as Samuel Alito invited it to be.
In 2014, by a 5–4 vote, the Supreme Court determined that under the federal Religious Freedom Restoration Act, the religious owners of a the for-profit craft supply stores could exempt themselves from the contraception mandate of the Affordable Care Act. The ACA had provided that businesses with over 50 employees needed to offer workers birth control coverage as part of a basic preventative care package, or pay a fine. The owners of Hobby Lobby, claiming a religious belief that some birth control devices were abortifacients, sought to deny that coverage. The case, Burwell v. Hobby Lobby, set new goal posts in the religious freedom wars playing out in American courts. For-profit corporations could claim to be religious persons and opt out of general legal obligations. Alito, in his majority opinion, was emphatic that the holding was extremely narrow and specific:
We do not hold, as the principal dissent alleges, that for-profit corporations and other commercial enterprises can “opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.” Nor do we hold, as the dissent implies, that such corporations have free rein to take steps that impose “disadvantages … on others” or that require “the general public [to] pick up the tab.” And we certainly do not hold or suggest that “RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on … thousands of women employed by Hobby Lobby.”
It was a teensy little case about a teensy mom and pop company with sincerely held religious convictions.
Justice Ruth Bader Ginsburg, writing the principal dissent that helped cement her status as the Notorious RBG, disagreed. She opened her dissent with this warning:
In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs. Compelling governmental interests in uniform compliance with the law, and disadvantages that religion-based opt- outs impose on others, hold no sway, the Court decides, at least when there is a “less restrictive alternative.” And such an alternative, the Court suggests, there always will be whenever, in lieu of tolling an enterprise claiming a religion-based exemption, the government, i.e., the general public, can pick up the tab.
It wasn’t just the breadth of the majority’s holding that worried Ginsburg, who believed there was nothing in it to stop other religious for-profit corporations from similarly opting out of generally applicable laws. Under the majority’s logic, the Religious Freedom Restoration Act “demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners’ religious faith.” Employees of Hobby Lobby who did not share the owners’ religious values would be materially harmed by the decision and the cases that would follow. Women who needed and could not afford expensive contraceptive care would suffer. Alito seemed unbothered by the so-called third-party impacts, but Justice Ginsberg, presciently, was worried.
Six years later, we have witnessed a long and thickening string of cases brought by religious dissenters who make all kinds of claims about the primacy of their own faiths and the implicit irrelevance of the harms born by everyone else. So it should hardly come as a surprise to anyone that Hobby Lobby itself seems to be leading the move to defy state orders about the need for nonessential businesses to close during the COVID-19 pandemic. Hobby Lobby, once again, is in it for Hobby Lobby, the religious institution and beating heart of spiritual conviction. To everyone else? Good luck.
And so Hobby Lobby reopened stores this week despite stay-at-home orders by governors in Colorado, Ohio, Wisconsin and Indiana. State attorneys general in Colorado and Ohio threatened the chain with sanctions if they do not close immediately. The Milwaukee Journal Sentinel reported that some Wisconsin Hobby Lobby stores had reopened on Monday, having closed last week, now posting signs indicating they were “essential businesses” because they were now “offering PPE masks, supplies, educational supplies, office supplies and various components for home small businesses.” After threats of legal action in Colorado and Ohio, the stores appear to finally be closing their doors.
Hobby Lobby’s founder and CEO, David Green, has been openly defiant about remaining open through the pandemic. On March 19 he sent a letter to employees, thanking “God who will Guide us through this storm,” promising to keep the company open, and insisting that his wife Barbara, “the prayer warrior” in their family, assured him that the workers were all able to labor safely after consultation with God. Then late last week Green sacked thousands of his hourly employees and canceled their health insurance via email. As Micah Schwartzman was quick to note on Twitter, at oral arguments in Hobby Lobby in 2014, the Green family had insisted that it could not abandon the employees to fend for themselves in the exchanges, thus relieving the company’s religious burden to fund contraception, because apparently the family’s religion required it to provide employees with health care. Not anymore.
Now that some stores remain open, it’s been further reported that they are not being cleaned to appropriate standards, and staff has not been given protective gloves because so many of the hourly workers were laid off. The company has been singularly uninterested in the health and welfare of staff, shoppers, or anyone else. And why should they be? The Supreme Court told David Green none of those interests was relevant when it came to health insurance and the special status of Hobby Lobby, and Green doubtless still believes it. Back in 2014 the high court couldn’t even be bothered to address the third-party harms it was creating when it was “just” birth control being denied to its workers. Today, Hobby Lobby believes it can ignore third-party harms, and why shouldn’t it? After all, this is just a pandemic.
In her dissent in Hobby Lobby, Ginsburg distinguished between religious liberty for people and the interests of corporations: “Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community.” She further warned of the slippery slope that would follow: “The Court’s determination that RFRA extends to for- profit corporations is bound to have untoward effects. Although the Court attempts to cabin its language to closely held corporations, its logic extends to corporations of any size, public or private. Little doubt that RFRA claims will proliferate, for the Court’s expansive notion of corporate personhood—combined with its other errors in construing RFRA—invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith.”
The court is at this very moment poised to further bolster individual religious liberties and harm third parties. These cases are invariably cast as pitting the dissenting voices of small but mighty religious Davids against the trivial civil liberties of nameless, unimportant third-party Goliaths. But the coronavirus has rapidly proved that a few small and mighty religious Davids can quickly infect whole populations who did not choose to adhere to the religious tenets of those making reckless decisions. This time, the third parties are the grandmothers in nursing homes, the kids with asthma, the elderly store and warehouse workers. Those third parties had been invisible statistics to the court for quite some time now. They will not be invisible statistics for long.
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