From humble beginnings in the 1970s in their Oklahoma City garage, David and Barbara Green launched what is now the sprawling nationwide commercial enterprise, Hobby Lobby. Their company – now owned entirely by five members of the Green family – is now at the epicenter of an important legal battle over the breathtaking reach of the Affordable Care Act. At issue is whether – due to the Greens’ deeply held religious objections – the Hobby Lobby owners have an enforceable freedom-of-conscience right not to provide several contraceptive methods (four out of the 20 ACA-required methods) to the crafts company’s employees. The Supreme Court will hear oral argument in this closely watched case on March 25.
Had the Greens not incorporated Hobby Lobby, they would likely win the case hands down and leave the Supreme Court’s marble palace with a federally granted exemption from Obamacare’s sweeping regulations. That’s because of another statute passed by Congress (by an overwhelming majority) back in 1993. Signed into law by President Clinton, and appropriately dubbed the Religious Freedom Restoration Act (RFRA), this far-reaching measure requires the federal government to provide a very strong (“compelling”) justification for imposing a regulatory requirement that “substantially burdens” the free exercise of religion.
To the Greens, all five of whom are devout evangelical Christians, requiring the Hobby Lobby employee benefits plan to include four contraceptive methods which they view (with substantial empirical support) as abortifacients is morally repugnant. Their religious freedom claim carried the day in the federal Court of Appeals in Denver, but the Obama Administration has fought the case all the way to the nation’s highest court.
The Greens should emerge victorious, even though the ACA’s contraceptive-services requirement is directed at their corporation, not the Greens personally. That is, the Greens as individuals are not required directly to do anything. It’s the Hobby Lobby employee benefits plan that is in the cross-hairs. After all, even non-lawyers well know that a corporation is a distinct entity separate and apart from its owners or shareholders. That’s the whole idea. Incorporating a business is a smart, commonplace way of doing business, even if the enterprise is entirely controlled by a Mom and Pop – or, in the case of the Green family, Mom and Pop and their three children.
How, the government rhetorically asks, can a for-profit corporation possibly have a legally protected right to the free exercise of religion? Freedom of speech, yes, and so too freedom from unreasonable searches or uncompensated corporate property grabs by the government. That is, corporations – even for-profit entities – enjoy a panoply of constitutional rights. But free exercise of religion seems by its nature to be peculiarly limited to individuals. Corporations obviously don’t pray or go to church, even though corporations can engage in free speech and exercise other constitutional rights. This point is at the core of the government’s main anti-Hobby Lobby argument.
At first blush, the government’s argument seems plausible. How can, say, General Motors or Intel be seen as exercising freedom of conscience? But Congress itself provided the counter-intuitive answer in yet another part of federal law that by its terms extends RFRA’s coverage to any individual or entity – including for-profit corporations.
Legal niceties aside, Hobby Lobby is, at bottom, the five Green family members. They are its nerve center and soul. They determine, with accountability only to and among themselves, whether to turn aside substantial profits by closing the doors of their 600 stores on Sundays; to greet Hobby Lobby patrons with strains of Christian music; to advertise Christian holidays, not the latest Hobby Lobby wares manufactured in exotic venues; and to donate millions of dollars of corporate profits annually to a variety of Christian missions. No Wall Street gnomes, corporate raiders or dissident shareholders can hold the five owners accountable, nor do they have any pecuniary interest whatsoever in Hobby Lobby’s business plans or the execution of its corporate strategy. Hobby Lobby is the Green family. To argue otherwise is a risible example of highly strained arguments that give lawyers a bad name.
But strange things happen in high-stakes litigation. If the Supreme Court accepts the government’s formalistic argument, it will deal an unnecessary blow to the cause of religious liberty and simply create incentives for families of conscience to carry on their business enterprise in another form. The Greens will, win or lose, be able to carry on and continue their admirable mission to serve a cause higher and nobler than their own commercial success. But something very valuable – the nation’s historic commitment to religious freedom – will have been needlessly compromised.
Former U.S. Solicitor General Ken Starr is president and chancellor of Baylor University.