The US Supreme Court’s decision in in Burwell v. Hobby Lobby has resulted in two main talking points, both of which seem odd, in particular to those of us outside the U.S.A. Firstly, the fact that the “conscience” of a legal corporation is protected by the Religious Freedom Restoration Act 1993 (RFRA); and secondly, that the sexual healthcare of women can be controlled by their employers. Both these sticking points have far-reaching implications, not least that the latter, which on first appearances seems to allow for the religious rights of a non-human to trump the health needs of a human. One of the reasons many of the issues in this case feel peculiar to a non-American is that the problem is one unique to that country. In most other countries the healthcare of full-time employees is not provided for by their employer, it is either provided free at the point of use by the state or through private insurance plans.
Regarding the first point; the majority held that a “closely held corporation” is to be considered a legal person for the purposes of the RFRA and is therefore entitled to whatever protections that Act may offer. The logic of the court in affording the privileges of humans to what can only be described as legal fictions was simple yet flawed. They argued that since the Department of Health and Human Services already treated non-profit corporations as humans under the RFRA, they had to similarly treat for-profit corporations as such since “no conceivable definition of the term includes natural persons and nonprofit (sic) corporations, but not for-profit corporations.”
This is hardly a compelling argument. If no distinction can be drawn between non-profit and for-profit corporations, then this must include “regular” corporations as opposed to merely closely-held ones. This is not how this decision has been understood, much emphasis has been placed on the fact that it seems logical that a closely-held corporation (understood here to mean one which is family owned) is allowed to exercise the rights of its owners. To be fair to the court, that is clearly not the way they expressed the argument, intimating that the ratio decidendi could well be wider than the press have reported. In any event, the court’s reasoning is weak on its own terms. Surely there are sound reasons of policy why a non-profit corporation should be allowed greater flexibility than one whose purpose is to turn a profit. The sole purpose of non-profit corporations is to be of benefit to the public (or at least a particular constituent thereof) and it therefore would be prudent to incentivise their creation. For-profit corporations on the other hand, while they may well be of net benefit to society, are set up purely to make money for its shareholders and hence there is no need to treat them with such reverence.
Arguments to this effect were made by the lower courts, yet the Supreme Court explicitly rejected them. They contended that “for-profit corporations, with ownership approval, support a wide variety of charitable causes, and it is not at all uncommon for such corporations to further humanitarian and other altruistic objectives.” This strikes me as a characteristically American approach. Not only are profit-driven corporations thought to be positive economic forces, creating jobs and stimulating the economy, but their owners are thought to be noble philanthropists whose primary motivation is the well-being of society’s most dispossessed. It goes without saying that compelling arguments can be made to the contrary.
Turning to the other controversial aspect of this judgement: In this instance the court did indeed allow the religious rights of Hobby Lobby’s owners to trump the needs of its employees. However, this was only because it was felt that to force corporations to provide various forms of contraception would not be the “least restrictive means of furthering a compelling government interest” as required by the RFRA. It was not that the court felt that with regards to providing contraceptives, religious freedom should prevail over the interests of individuals, it was simply in this circumstance there was a less restrictive way of doing this. According to the majority, the least restrictive method of providing for these women would be for it to be paid for by the federal government. While this may seem a satisfactory solution to a government-loving European, it surprises me that this was the opinion of a conservative-led Supreme Court and that the decision was hailed as a victory by the political right who seem intent on shrinking the government at whatever cost. I suppose for some, the prospect of the law permitting their religion to coerce is so compelling that it even trumps their extreme libertarian tendencies. Nonetheless, this argument is similarly weak. It is hard to imagine how there could be a less restrictive way of providing contraception than for a legal entity to do it. Shareholders themselves need not take part in any activity they find morally repugnant and neither are they being forced to dirty their hands directly administering the birth control; it is unlikely anyway that the Green family, the evangelical owners of Hobby Lobby, are personally involved in the insurance plans of their employees.
I am not aware of any similar case in my own country, the U.K., but there have been a number of recent human rights cases where freedom of religion has been weighed up against protection from discrimination. In Bull v. Preddy and Hall, a hotel refused to provide accommodation for a same-sex couple. The U.K. Supreme Court held that even though the hotel owners chose to do this due to their deeply held religious beliefs, such actions fell afoul of various discrimination laws and therefore it was illegal for them to do so – the freedom of religion does not amount to the freedom to victimise. It is a shame, therefore, that Burwell v. Hobby Lobby did not focus more on the discriminatory aspects of the case. Surely, seeing that the religious feelings of Family Green only seemed to extend to the sex-lives of women and nothing else a strong case of discrimination can be made. As a foreigner in a country with no written constitution, I often look admiringly at the Constitution of the United States and its commitment to the dignity of the individual. It therefore seems a shame to me that one of the world’s most respected constitutional courts should undermine the healthcare and autonomy of those who need a rights-based constitution the most.
Michael Goldin just completed a law degree and will soon begin pursuing his Master’s at University College London.
