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Reductio ex absurdo!

The potential impact of the Hobby Lobby case

Investor Relations Magazine

September 3, 2014 | By Ian Williams

Religious tolerance can only go so far

The Supreme Court seems to have been replaced by some religious conventicle. In the course of

ignoring reality to fit theology, it has previously created some awesome precedents, but the

Hobby Lobby case is a doozy.

For any American ostriches with their heads in the sand or non-US readers who thought it was

just a strip from Ripleys Believe it Or Not!, this is the recent ruling that says a corporation

owned by religious believers has the right to opt out of providing otherwise mandatory

contraceptive services to its employees under their healthcare plans if it offends the owners

sensibilities.

It has always been surprising how many Americans imbue the Supreme Court with some

objective detached legal wisdom, as it has always interpreted laws in a highly partisan way. In its

glory days, at the time of the Dred Scott case, the Supreme Court invoked states rights to

protect the rights of citizens from slave states to retrieve their property, even in states that did not

recognize that people could be property.

In the Hobby Lobby case, the Supreme Court follows the famous Citizens United case in

endowing corporations with powers, souls and consciences. I can hardly count the ways this

ruling offends common sense. The justices seem to have a very circumscribed view of religion,somewhat contiguous with the Vatican (before the current pope, at least). First, the same court

ruled some years ago that using peyote in American Indian religious ceremonies was still illegal,

and somehow I cant see the learned justices even considering the documented use of big spliffs

in Rastafarian liturgy.

So would a sincere religious belief in the virtues of slavery as espoused by almost all churches

in the South before 1860, and a few even since allow companies to enslave the sons of Ham?

(This is, of course, hypothetical it is much cheaper to employ them on Federal minimum

wage.)

I foresee an almost endless line of petitioners for religious exemptions: Christian Scientists who

own companies will want exemptions from providing surgery in employee healthcare plans;

Jehovahs Witnesses will want to exclude blood transfusion services. Shakers and similar sects

eschew procreation will they be allowed to avoid providing pregnancy services and maternity

leave for their fecund employees? The courts have previously frowned on Quakers and other

pacifist sects objecting to paying taxes to support military spending will those same sects now

be allowed to refuse legal leave to military reservists if it offends their sensibilities?

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There are also interesting business implications. To begin with, once the Green family

incorporated its Hobby Lobby business, it became a separate person, surely? But if the

personhood of the owners is coterminous with that of the company, what happens to limited

liability? If the company goes bust, doesnt it follow that if the owners and the company are one

and the same thing that those owners should accept the moral hazard of the financial or indeedcriminal charges against the company?

When a company breaks the law, it cannot be imprisoned, executed or otherwise returned to the

path of righteousness. Its owners and managers can practice corporate mayhem and escape

unscathed. If the Green family and Hobby Lobby are coterminous in conscience, should they not

be coterminous in consequences? If the company does wrong, shouldnt the full force of the law

come down on the owners who cannot draw any distinction between themselves and the

company when it suits?

There is more than a moral hazard here. As Forbes enterprisingly discovered, most of its pensionplan is invested in companies making precisely the same type of products it refuses to allow its

health plans to buy. Should the Green family be sued for its failure to maximize returns by

discouraging employees from using products that would enhance the companys pension funds?

Why not?