Mental Gymnastics

Doobster418 issued this challenge to the Internet, wanting a defense of the recent decision by the U.S. Supreme Court(“SCOTUS”) to let Hobby Lobby and a couple of other companies exercise religious beliefs. I put up my personal views earlier today, and I stand by those remarks. However, since I think this case represents more than just a simple denial of contraception to the female employees of three corporations, there should be a better back-and-forth between both sides of this issue.

So, in the interests of Internet diplomacy, and my own personal interests in reshaping this debate, I will now offer a defense of the Hobby Lobby decision.

Moreover, I’m going to justify it from an atheistic perspective(i.e., I’m not going to quote the Bible or other religious texts, or try to explain or rationalize the Green family’s personal beliefs). My hands are shaking at writing such an ambitious sentence.

Let me start by saying that the loss of access to contraceptives is not a desirable outcome, at least from the perspective of the principle that women should have all the tools to make decisions about their bodies at their disposal. I think it is fortunate that the Department of Health and Human Services(“HHS”) can act to get these women access to contraceptives, but this only mitigates these employees’ losses. It can serve as an interim fix until the ethos at Hobby Lobby changes.

I’m still waiting for something positive to be said about SCOTUS.

And here it is: the decision announced on Monday can lead to long term benefits at the sacrifice of the short term consequences.

This conclusion seems counterintuitive, but it is sound. The Green family’s personal beliefs about contraceptives was something they claimed was a controlling factor in running Hobby Lobby, and those beliefs were determinative in the outcome of the case. Those beliefs included the proposition that they run their business in a moral manner, consistent with their faith. And this is important because it’s the first time the proposition that a person was trying to run his business ethically actually won a case.

Up until now, the only real ethics for a shareholder in a closely held corporation was to make money. Ever since the first corporation was established in the 1600’s, these so-called “artificial persons” had one duty only: to make cash hand over fist. Companies could lie, cheat, and steal their way to fortune. Even until recently, the only redress for corporate wrongdoing was to sue them. If the person wronged didn’t want to sue, then the company could get away with whatever it wanted.

With companies now able to claim religious belief to shield itself from regulation, there is now room in American jurisprudence to finally add a conscience to corporate affairs. Don’t get me wrong, the decision does not impart a duty on Hobby Lobby to act ethically, but the fact that Hobby Lobby can borrow the ethos of its shareholders is the first important step on a long road. From this decision, future cases can require corporations to act a certain way if it claims religious exemptions. For example, if Hobby Lobby claims to have a religious intent then that intent can be used to impart criminal liability for cheating people.

The possibilities are endless in this regard, and admittedly this will require a change in how we as a society deal with the ethics of both natural and artificial people. But if we can form a framework of how companies should behave to people, then there is no reason this case can’t eventually lead to an environment where businesses must do no harm in addition to making money.

Admittedly the point where this argument is weakest is that the positive outcome is currently hypothetical. The cynical part of me believes this case wasn’t even decided with such a lofty endgame in mind. Rather, it was just a backhanded way of diminishing the effect of the ACA. Be that as it may, I think the possibility of being able to finally require more than just money from a corporation is noble enough a pursuit to warrant the notion that this case is a good thing.

Why it can be a good thing.

This case can get members of society talking about the role companies play in our everyday life. We don’t have to just sit there and think of a business as a thing that gives me a paycheck, or that thing that makes me enough money to live on. With the power of corporations on the rise, including a relatively new right to free speech, it is more than appropriate to look at why they do things in addition to how, what, and when they do things.

And more importantly this case has just opened the door to consider those possibilities under the law. Right now the employees of Hobby Lobby might not be able to get contraceptives, but eventually the company might begin doing it on its own because society demands it. Right now companies might act with malice and bias towards certain minorities in society, but eventually the law can force them to act with compassion. Right now companies can neglect their customers in favor of exploiting them, but eventually they might be compelled to act responsibly.

This possibility is now more likely than it was before this decision. Although it is not certain, public debate can influence the direction of the law that this case propagates. People can begin sharing what it means to them to be an ethical company with each other and their elected officials, and we can see progress made in the way we as human beings do business.

It is important to note that this is limited currently to religious beliefs, so the change would initially have to come from people in the faith-based community. Leaders in that community could begin demanding companies do more than just make cash off of people. It would allow them to have a positive impact on the people they claim to care about. In short: it would give the faith community the chance to prove that they want to act in the interests of humanity.

Another note is that the faith community could help recognize Humanism as a “belief system” for the purposes of faith beliefs in changing business ethos. This would allow Atheists a greater voice(and recognition of the seat at the table when it comes to doing the right thing) in what constitutes moral action. We might not get together and sing “Kumbaya,” but I do think it would go a long way to establishing a more just society.

The bottom line.

Right now the ethics of Hobby Lobby are important, but I consider them misguided. If we talk about and form a new ethical structure, it is possible to right this and other wrongs that companies perform. Because the ethical structure was given weight under the law in this case, then those new structures would have the force of law. Because the case allowed for businesses to act under ethical principles, it can increase the benefit of companies to humanity. The possibility of righting previous wrongs, coupled with increasing benefit to humanity, means this decision was made correctly despite its negative outcome.

4 thoughts on “Mental Gymnastics

  1. You have an intriguing idea in seeing capitalism shift to acquire attributes of a non currency based value system. I wholeheartedly agree that capitalism, business, and people should care more, act on that caring, and bring note altruism to marketplaces. I thought of Gene Roddenberry as I read that bit.

    Then you jerked me back to reality with the reminder of the recent money is speech SCOTUS ruling. Sadly, that is the state of the things we hold dear.

    Here’s your challenge. Invent an alternative to capitalism that retains its benefits while eliminating its harm. I’ve actually pondered this on occasion and made no meaningful progress.

    Would be nice, though.


    • It would be nice!

      And challenge accepted!! I’ve thought about this sometimes, and I think there are some principles worth tossing about. This is a perfect excuse to create a thought experiment page. My only question is: do you want me to send the post to you for publication, or do you want me to post it here?


  2. “The decision announced on Monday can lead to long term benefits at the sacrifice of the short term consequences.” I agree. Perhaps this case will finally wake people up and cause them to realize the consequence of political apathy and will get them to go to the polls and vote every chance they get.

    But I have to disagree with your conclusion regarding this finding being one to promote business ethics, as I think there was nothing ethical about the motives of the Greens and those who supported them in this suit. I say this based upon the fact that the Greens’ are selling goods imported from China, a country where abortions are government sanctioned and promoted, and the fact that the Greens used to cover the contraceptives in question in the health plan they offered to employees until it was mandated as part of ACA. That’s not ethics. It is, as you correctly noted, “a backhanded way of diminishing the effect of the ACA.” And that, to me, is what it’s always been about. This whole religious thing was a cover. This finding by the SCOTUS has opened the door to all kinds of opportunities for companies to get out of abiding by the law as well as to other types of discrimination and unfair treatment of other employees and maybe even customers in the name of “seriously held beliefs.”

    Anyway, thanks for taking the time to write a thoughtful and provocative post in response to my challenge. I guess time will tell how positive or destructive the consequences of the Hobby Lobby case will be.


    • I apologize for the late response, as I had a busy 4th of July weekend and hadn’t had the time to devote to making a reasoned reply. Thank you for issuing the challenge, as I wracked my brain to find a way to justify the ruling.

      I wholeheartedly agree that the Greens’ motivations were unethical for the evidence you have provided. I would like to point out, though, that the reasoning for my position here carefully avoided the Greens’ beliefs in support. Where I think my position above is weakest is that it is poor sport to justify something because it “can” be good instead of saying it “will” be good. The difference lies in certainty, and being uncertain about getting the women who work for Hobby Lobby the medical care they need is small consolation for some unknowable future world of ethical companies. It would be nice if their suffering wasn’t in vain, but does that really excuse the hardships they’re asked to endure?

      I don’t know the answer to that question, but I am at the least grateful that I have explored this issue more carefully than I originally wanted to. As a lawyer, I am reminded that cases like these have real consequences for real people, and treating people as non-people can lead to dismal outcomes.


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