USA: +1(669)289-8683 
Sign in
The basis for this discussion is the U.S. Supreme Court case of Burwell v. Hobby LobbyStores, Inc.
This case is about a business’ leadership making real business decisions about employer-provided employee health care benefits. This decision violated a government mandate that private for-profit businesses provide certain types of birth control benefits. The company, Hobby Lobby Stores, Inc., took a stand against the government’s position, based on the business ownership’s religious beliefs, raising a Constitutional question under the First Amendment.
In addition to the Hobby Lobby case itself, please consider, in particular, the Horwitz article listed in this week’s eReserve Required Readings, as well as other research on the subject, to inform your own thoughts on the following and discuss in a narrative post.
DISCUSSION PROMPT:
Please do not simply list “questions and answers.” Address the questions within an essay format min 500 words.
- Which part of the 1st Amendment was at issue in this case?
- Discuss how the government violated Hobby Lobby’s 1st Amendment right, according to the U.S. Supreme Court.
- Hobby Lobby Stores. Inc. is a family owned business, described as “closely held.” What does this mean, i.e., what is a closely held corporation? How did the fact Hobby Lobby is closely held make a difference in the court’s consideration of Hobby Lobby’s 1st Amendment religious freedom argument? Would the same argument work for a large publicly held corporation like IBM? Should it? Why or why not?
- Should a business operating as a nonreligious commercial entity be able to invoke this 1st Amendment protection at all on the basis of the business owner(s)’ personal beliefs as human beings? Why or why not? If the business is a separate person, as the Court has held in finding that the business has an independent Constitutional right, how can this “corporate person,” as an entity, manifest an independent religious belief? Isn’t it separate from its owners? (For this question you might want to also take a look at the Supreme Court’s opinion in the Citizens United case.)
- Share any additional thoughts you have.
Please clearly and thoroughly discuss these points in a well organized post. Your text and other required readings and research should form a foundation for your discussion. At a minimum your thoughts should be informed by the court’s opinion in Hobby Lobby, the Horwitz article, and your textbook readings. You may have other ideas — research further to support them. We invite and expect respectful debate in the discussions. Enjoy the challenge!
American religious liberty is in a state of flux and uncertainty. The
controversy surrounding Burwell v. Hobby Lobby Stores, Inc. is both a
cause and a symptom of this condition. It suggests a state of deep
contestation around one of the key markers of the church-state
settlement: the accommodation of religion.
The problem is social and political, not judicial, although judges are
obviously influenced by those larger forces. Courts are rarely at the
forefront of significant social change. Judges are constrained by their
function: to decide specific cases, based primarily on a finite (if
malleable) set of materials such as prior precedents and
statutes. Hobby Lobby itself turned not on the vagaries of the Religion
Clauses, but on the directions laid down by Congress in the Religious
Freedom Restoration Act of 1993 (RFRA). The Court is routinely
criticized for the incoherence of its Religion Clause jurisprudence.
Inevitably, there are doctrinal disagreements among judges on these
issues. On the whole, however, the judicial treatment of the American
church-state settlement has been relatively stable.
Conditions are much more fraught outside the courts. In public
discussion and in the scholarly community, the very notion of religious
liberty — its terms and its value — has become an increasingly
contested subject. In the space of a few short years, the basic terms
of the American church-state settlement have gone, in Professor
Lawrence Lessig’s useful terms, from being “taken for granted” to
being “up for grabs.” Once a fairly “uncontested” issue that remained
in the “background of public attention,” religious accommodation has
become a “contested” issue occupying the forefront of public debate.
The change has been sudden, remarkable, and unsettling. The
Court’s decision in Hobby Lobby will influence the debate outside the
courts. But the decision will not resolve that debate. If anything, it
seems more likely to heighten and prolong the public tension than to
calm it.
Unsurprisingly, given the polarized nature of the larger debate over
religious accommodation, most discussions of Hobby Lobby and the
contraception mandate have been equally polarized. On one side of
the divide, some saw the contraception mandate as “trampling” or
“assault[ing]” religious liberty. On the other side were those who
warned that a win for Hobby Lobby threatened our local and national
civil rights laws, and perhaps the rule of law itself. After the ruling,
most of the immediate reaction to the decision was similarly divided.
The polarizing nature of the issue, and of the Court’s decision, was
both reflected in and encouraged by Justice Ginsburg’s stinging
dissent.
As always during times of revolutionary (or reactionary) passion, those
who are more concerned with analyzing the conflict than with
participating in it may find themselves squeezed from both directions.
When an issue moves to the foreground of social contestation, one is
expected to choose sides. Nevertheless, some writers have taken an
interest in evaluating and sometimes lamenting the current struggle,
not just fighting it.
This Comment falls into the analytical category. I have my own views
on the merits of Hobby Lobby. But it is the controversy over the
contraception-mandate litigation, not the case itself, that takes center
stage here. I focus less on the doctrinal questions the Court dealt with
or left unanswered, and more on the legal and social factors that
turned a statutory case into the legal and political blockbuster of the
Term.
More specifically, in thinking about the broader social context that
made Hobby Lobby so prominent and the debate over it so inflamed, it
is the moment that matters. We are in the middle of a process of
social contestation on some key questions: between certain issues
being taken for granted in one direction and their being equally taken
for granted in the other direction. It is difficult, if not impossible, to
stand outside such moments. But there is some value in focusing, at a
slight remove, on the fact of the moment itself.
A great deal of recent constitutional scholarship has examined the
relationship between social and legal change, and between social
movements and courts. The Hobby Lobby case and its ancillary
issues offer an excellent opportunity to consider these relationships.
More specifically, this occasion allows us to scrutinize one particular
stage in the life cycle of social and legal change: the moment at which
an issue is at its most contested and foregrounded. It is unsurprising
that courts will speak up at these moments, particularly if Congress
has left them little leeway to avoid or postpone the question. In some
ways, however, these critical moments may also be the ones in which
judicial action is likely to be the least fruitful. These are surely fertile
times for activists and advocates. But perhaps there is good reason at
such moments to hear from ironists and tragedians as well.
The heated nature of our current debate over the contraception
mandate and related issues may prove short-lived. It may be a mere
byproduct of the energy expended in a period of dramatic social
transformation. The degree of controversy occasioned by Hobby
Lobby would have been unlikely thirty years ago, given the state of
social consensus at that time. It may prove equally unthinkable thirty
years from now. In the meantime, the Hobby Lobby moment gives us
a chance to take stock of the nature and effects of the social
contestation we are experiencing, and of the rapid changes and
reversals of view that have thrown one of the central aspects of the
American church-state settlement into question.
Part I of this Comment summarizes the Hobby Lobby decision. In my
view, the decision itself is not the primary source of the controversy. In
any event, both the majority and dissenting opinions are thorough and
lucid, although like all opinions they leave questions in their wake. My
discussion in this Part is thus quite brief.
Part II discusses the legal and social sources of the controversy.
Legally, it discusses a key element of the American church-state
consensus as it existed until recently: the accommodation of religion.
That consensus is aptly summed up by Professor Andrew Koppelman:
Religion is “a good thing,” and “[a]ccommodation of religion as such is
permissible.” We may debate whether courts or legislatures should be
responsible for it, but it is generally agreed “that someone should
make such accommodations.” Until recently, there was widespread
approval for religious accommodation. That consensus found strong
expression in RFRA, which passed just two decades ago with the
overwhelming support of Congress. There have been dissenters from
this consensus. On the whole, however, it enjoyed “taken for granted”
status. In Lessig’s terms, disagreement over religious
accommodations was a background issue, not a foreground issue.
The past few years have witnessed a significant weakening of this
consensus. Contestation over religious accommodations has moved
rapidly from the background to the foreground. Accommodations
by anyone — courts or legislatures — have been called into question,
including by those who acknowledge that until recently those
accommodations would have been uncontroversial. Whether religion
is “a good thing” — whether it ought to enjoy any kind of unique
status, and whether that status should find meaningful constitutional
protection — has itself come up for grabs.
This legal contestation has been accompanied by — indeed, may be
driven by — significant social dissensus. Although Hobby Lobby itself
involves a controversial social issue — the status of women’s
reproductive rights — much of the reason for the shift in views on
accommodation involves another contested field in the American
culture wars: the status of gay rights and same-sex marriage. The
cause of marriage equality, which seems to be a fait accompli awaiting
final confirmation from the Court, has come increasingly into conflict
with the views of religious objectors to same-sex marriage. Same-sex
marriage and its consequences have become a central, foregrounded,
socially contested issue. The church-state consensus, drawn into the
gravitational pull of this contest, has been put up for grabs as a result.
Part III offers some thoughts about the lessons and implications of this
debate, both for religious liberty and for the general culture wars that
have featured so heavily in the Hobby Lobby controversy.
A brief caveat is in order. I offer a particular framework for thinking
about the Hobby Lobby moment in this Comment. It focuses in
particular on LGBT rights and changes in the marketplace as drivers
of the controversy surrounding the Court’s ruling. I believe that those
factors have been major influences on Hobby Lobby as a social and
legal moment and have contributed significantly to changes in current
views on religious accommodations. But other possible frameworks,
and other factors, exist. One of those, obviously, is the status of
reproductive rights and women’s access to contraceptive services. I
argue in this Comment that despite the emphasis on that subject
in Hobby Lobby, and especially in Justice Ginsburg’s dissent, other
factors were at work in contributing to the degree of public attention
and disagreement that accompanied this case. This focus is not
intended to deny or disparage the importance of reproductive rights. It
is simply intended to direct attention to other factors, less apparent on
the face of the opinion, that are nonetheless essential elements of
the Hobby Lobby moment.
