As I See It

Hobby Lobby’s legal challenge to Obamacare is about conscience

Updated: 2014-01-13T00:47:31Z

By JOSHUA HAWLEY

Special to The Star

The U.S. Supreme Court recently announced it would decide the challenge brought by Hobby Lobby to the federal contraceptive mandate, the regulation that requires businesses, as part of the Affordable Care Act, to include contraceptives in their employee health plans. Hobby Lobby’s owners, the Green family, are devout Christians who object to four of the 20 types of contraception mandated by the administration on the grounds that those four can prevent a fertilized egg from implanting on the uterine wall and thereby cause an abortion.

I am one of Hobby Lobby’s attorneys in this case — the Greens are represented by the Becket Fund for Religious Liberty, where I am Of Counsel. Not surprisingly, I find the Greens’ case compelling. But setting aside the technical legal arguments, there is a strange quality to the federal government’s claims. In effect, the government is arguing that Hobby Lobby should be punished for being a socially conscious corporation.

The government claims that people who run for-profit corporations do not have religious liberty rights when it comes to managing their businesses because for-profit corporations have nothing to do with moral convictions. They’re about profits.

That’s a profoundly troubling argument.

If we learned anything from the financial debacle of 2008 and the companies that helped perpetrate it, it is that a sole focus on profits can cause terrible social damage.

One of the most heartening developments of the last decade has been the flourishing of for-profit entrepreneurs who want their business to be about more than profits alone. Companies like Toms Shoes, Warby Parker, and Tegu Toys — all corporations, by the way — operate to make a profit but devote a portion of their earnings to helping those in need. These companies have what’s sometimes called a double bottom line. They are corporations with a conscience.

Hobby Lobby is a lot like those businesses. The Green family run Hobby Lobby in accord with their deepest convictions in an effort to make their piece of the world a better place. That’s why Hobby Lobby starts its full-time employees at nearly double the minimum wage and offers an on-site clinic at company headquarters with no copay for their employees. That’s why the Greens forgo thousands of dollars of revenue every year by refusing to engage in business practices that violate their beliefs — like hauling alcohol in Hobby Lobby trucks.

Not every person will agree with the Greens’ social conscience of course, just as not everyone agrees with Starbucks’ recent public statements in support of gay marriage. The point is, companies should be encouraged, not penalized, for having a conscience in the first place.

Some might say that corporate conscience is all well and good, but Hobby Lobby is attempting to impose its convictions on its employees. But this is quite wrong. Hobby Lobby has no objection to its employees using whatever forms of contraception they may choose. Hobby Lobby is not asking that any contraceptive drugs be made unavailable. It is simply asking not to be forced to pay for a handful of contraceptives that can cause abortions.

The real issue in this case is whether corporations can have a conscience and whether corporate owners can run their businesses in accord with their convictions. That’s all the Hobby Lobby and the Green family want. The country would be better off if more corporations wanted the same.

Joshua Hawley of Columbia is an associate professor of law at the University of Missouri and of counsel to the Becket Fund for Religious Liberty.

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