In the Spotlight

Todd McFarland

General Conference Associate General Counsel

The Adventist Church and the Hobby Lobby Decision

On the last day of the Supreme Court’s term an NPR commentator knowing that the decision in Burwell v. Hobby Lobby would be coming out in a couple of hours, described the case as the intersection of the Affordable Care Act, reproductive rights, and religion. With these three hot button topics coming together its no wonder this was the biggest case of the term. It also was one that not only divided the country, but also the church. How truly divisive the issue is became evident when a colleague who was part of the team that put out the church’s response (which described the church as being “encouraged” by the decision) came in the next day noting that his wife demanded to know what he was thinking. (See Adventist Church Encouraged by Court's Hobby Lobby Decision)

My colleague’s wife was not alone; a lot of church members were not pleased. The most extreme were upset we took the side of the “Catholic Supreme Court “(all of the justices in the majority are Catholic) but the more reasonable felt the court had gotten this one wrong. That the goal of providing women with contraception outweighed any religious liberty concerns.

So what was the church thinking? Why weigh in on such a divisive and controversial issue? The short answer is: because the larger issue the court decided matters to the Church. For the Adventist Church it was not whether the government could require denominational employers to provide the drugs required by the ACA, because the church does that. Rather, the issue was the Supreme Court’s interpretation of the First Amendment and the Religious Freedom Restoration Act (RFRA).

First Amendment

The First Amendment and RFRA together provide some of the strongest religious liberty protections in the United States. Had the court ruled against Hobby Lobby, the damage to RFRA and religious liberty would have been significant. Having worked hard—along with other faiths—to pass this law the church could hardly remain silent while its fate was determined.

For many critics of the court’s decision, the issue of women’s health and reproductive rights strikes at the core of their identity. Any position viewed as endangering women’s reproductive autonomy or rights is bound to evoke strong reactions. These issues are so important that for many they trump just about any other concern or interest, including religious liberty.

The task of weighing competing interests is at the heart of almost every religious liberty debate. Few people, especially in western countries, seek to restrict religious rights simply for the sake of doing so. Rather, there is some other value or interest that conflicts with a religious belief. For example, a church member wants off on Sabbath and the employer needs work done on Sabbath.

If the court were only weighing two competing rights this would have been a less crucial case. No single right, whether religious freedom or reproductive rights, always wins. But balancing competing interests was not the primary issue. To be sure, the administration felt that providing cost free contraception was more important than any religious liberty interest. But what the government argued was that a for-profit corporation is entitled to no religious liberty protections and therefore no balancing of interest was necessary. The government just won.

Religious Rights

Many people are uncomfortable with extending religious rights to for profit companies because they feel it gives corporations rights that should be reserved only for natural people. This is a curious argument because despite the heated political rhetoric that “corporations aren’t people” we routinely give companies “rights” without controversy. What is unusual is denying constitutional rights to companies, not granting them.

If Congress tried to outlaw NBC making fun of the President, not only would Saturday Night Live and the Tonight Show be a whole lot less funny, the life expectancy of that law would be measured in hours, as the courts would strike it down so quickly. If Congress tried to prohibit Exxon-Mobile from lobbying to allow offshore drilling more people might think that is a good idea, but courts would take only slightly longer in finding the petition clause of the First Amendment violated.

The protection of the First Amendment goes beyond Jimmy Fallon making fun of President Obama. While it has not always been popular, the courts have extended First Amendment rights to “exotic dancing” establishments—cases the Adventist Church often relies on when defending the rights of our student literature evangelists to go door-to-door during the summer. While the First Amendment does not give these business owners carte blanche, there is no question the First Amendment is in play. Put more starkly, to argue that Hobby Lobby gets no protection under the First Amendment is to argue that it gets less protection than a strip club.

The anomaly isn’t that corporations get rights under the constitution; the anomaly is that the free exercise clause of the First Amendment is given second-class status. Virtually every other part of the Bill of Rights applies to corporations just as it does to natural people.

A common argument for not extending religious liberty protections to shareholders and corporations is that by incorporating and putting “space” between the owners and the company, the owners’ religious principles are not impacted. The corporate structure serves to partially insulate owners from some liabilities. Therefore, the reasoning goes, these owners should not get to have it “both ways”—protection from personal liability and protection of personal religious beliefs. In other words there is no moral complicity for the owners for decisions made by the corporation they own and control.

In other contexts this logic is not followed and in fact, flatly rejected. Society often imputes moral culpability of the actions of even a large, publicly held company (which is not the case with Hobby Lobby) to its stockholders. This is why the Adventist Church, and many others, screens its investments so as not to invest in companies making tobacco or alcohol. If it turned out that the Adventist Church owned 10% of Philip Morris (which, to be clear it does not) most people would see a contradiction with the church’s health message despite PM’s corporate form. Would the Greenpeace invest in BP other than to show up at a shareholders meeting to cause problems? It seems to only be when talking about religious rights such a constrained view of moral responsibility is adopted.

Moral Concerns

These concerns of moral complicity are magnified even more when you are talking about a closely held corporation such as Hobby Lobby. Hobby Lobby’s owners have a long history of running the company according to their beliefs. Among other things, the stores close on Sunday because of religious concerns of breaking their Sabbath.

While as Adventists we do not agree with their choice of day, we certainly should be sympathetic to business owners trying to operate according to God’s desire. It’s hard to read the Bible as having a “business judgment rule” that insulates owners from the decisions they make through a corporation.

Reproductive rights advocates would argue that providing contraception is not the moral equivalent of being a big tobacco company or Anheuser-Busch. And they are right, it is in fact worse if you believe these drugs cause death of a human life. For many people, paying for these drugs means being morally complicit in murder.

Comparing the drugs in question to murder infuriates those in the reproductive rights community. They vehemently disagree with the premise (abortion is murder) and the factual predicate (these drugs cause abortions). In fact there is a legitimate question whether these drugs do in fact cause abortions. There is evidence both ways, and the Adventist Church, while implying they do not cause an abortion, leaves that decision up to individual members. And of course whether abortion is murder is a debate that society will never solve.

But neither of these issues was for the Supreme Court to decide. We do not want courts determining the truth or falsity of people’s moral beliefs nor do courts want to be. One can disagree with another’s religious beliefs. But it is not appropriate to say they are unworthy of protection because you don’t share them or they are “wrong”—no matter how much scientific evidence you have.

To say that religious freedom requires a balancing of rights is as trite as it is true. But a balancing test is not what the administration argued for. The government argued that the Hobby Lobby never got to square one, that no religious liberty right existed and that no religious liberty interest was at stake simply because Hobby Lobby is for-profit.

Dangerous Road

This is a dangerous road to take, that religious liberty is absent when it comes to making money. When people of faith are excluded from the economy, or compelled to chose between their religious beliefs or earning a living, that starts to look an awful lot like not being allowed to buy or sell. No one should be forced to choose between making a living (even a very good living) and their faith.

This was not a case where Hobby Lobby sought to force its religion on its employees. It never sought to ban its employees from using birth control like the Adventist Church bans its employees from consuming alcohol. Rather, the only imposition on the employees was economic. No employee was claiming it violated her constitutional rights (religious or otherwise) to pay for her own birth control. Hobby Lobby sought not to pay for something it objected to, not prohibit its employees from using these drugs.

Arguing that employers’ religiously motivated decisions are improper if it costs the employee any money is also problematic. There are many decisions employers make that have a financial cost on employees. For instance, under this logic an Adventist who closed her business on Sabbath is also in the wrong because she is depriving her employees of the “right” to work on the Sabbath thereby costing the employee money.

While the Court ruled in a way that upheld RFRA and strengthened religious liberty, it further polarized the issue, and that is, as they say, a very bad thing. This has to change if we hope in the long run to protect religious freedom. This cannot be the issue of one party and historically it hasn’t been. RFRA passed in 1993 unanimously in both the House and Senate and was signed by Bill Clinton.

The Adventist Church is in a unique position to show leadership that religious liberty is not a partisan issue. One of the church’s strengths is that it has a true diversity of views not common to other denominations. The Church will continue its non-partisan approach to religious liberty. But in this case, the Church had little choice but to stand up for a law crucial to religious liberty no matter how controversial.  

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