Hobby Lobby "... is a case of religious power at war with secular power in a battle for how to morally distribute goods"

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The Hobby Lobby case is all about power, not religious liberty
By Elizabeth Stoker, April 1, 2014

Last week, arguments closed in the Supreme Court case Sebelius v. Hobby Lobby Stores Inc., but the debate over the legitimacy of the case has raged hotly since. While Hobby Lobby argues that it should be exempt from portion of ObamaCare due to its owners' Christian beliefs, what is at stake here isn't freedom of religion. It's about power.

At issue for Hobby Lobby, a business run by conservative Protestant Christians, are the portions of the Affordable Care Act that would require it to provide insurance coverage that includes forms of abortifacient birth control, i.e. birth control that can end extremely early term pregnancies. Hobby Lobby's core argument is that by paying for insurance that provides such coverage, it would thus be morally responsible on some level for procedures, medications, and/or devices it objects to, which would violate the owners' religious beliefs.

Yet it's not so cut and dry.

Let's breakdown the process by which Hobby Lobby "pays" for birth control: Under the Affordable Care Act, Hobby Lobby is required to pay money to an insurance company in exchange for insurance coverage for its employees. A Hobby Lobby employee could then go to her pharmacy and request one of the contested forms of contraception, which would then be paid for by the insurance company hired by Hobby Lobby. By the judgment of the owners of Hobby Lobby, this would mean that its own money would be channeled toward the purchase of potentially abortifacient materials.

On the surface, this seems to make sense, but look at it from a different angle and the logic breaks down. What exactly would appease Hobby Lobby and other businesses with similar objections? Ostensibly Hobby Lobby would merely like to pay money to an insurance company in exchange for a coverage plan that does not extend to the contested forms of birth control. But this could still open the company up to identical hazards if that insurance company provided other customers with plans that did extend to those forms of birth control. This is because when a business pays an insurance company, the money the insurance company goes into a "pool" — this is, after all, how insurance works. When Hobby Lobby pays its bill to an insurance provider, its money becomes indistinguishable from other money paid by other corporations, and all of it forms a block of identical money, some of which will be used, so long as the insurance company offers plans extending to contraception, to pay for it.

Thus it looks like an exemption from particular types of plan isn't really what Hobby Lobby needs, but rather an exemption from particular types of companies. But that itself isn't clearly a solution: After all, woman employees of Hobby Lobby are not prohibited from paying for those very contraception options out of their own pocket — which is presumably filled with money that comes directly from Hobby Lobby. If Hobby Lobby cutting a check to an insurance company doesn't transfer responsibility, why is Hobby Lobby cutting a check to a woman any different? It's difficult to say.

Even more challenging is imagining a world per Hobby Lobby's frame that's truly pluralist — in which female employees in disagreement with their employer can remain employed and access the legal forms of contraception they desire without infringing upon any sincerely held religious belief. Single-payer health care, in which the state pays all health expenses similar to a system like the United Kingdom's much-beloved National Health Service, would perhaps push this argument a little down the road — but given early reactions to the considerably weaker Affordable Care Act, arguments over whether or not "tax payer money" should fund contraception and/or abortion would come along at a good clip.

In other words, why is Hobby Lobby objecting to this specific insurance plan and not the entire insurance company's practices? And why not protest female employees spending Hobby Lobby-earned money on those very same contraception types? If this is a hard-line moral case about preventing culpability of any kind in the use of abortifacient birth control, then Hobby Lobby really should be scouring each of those eventualities to extricate itself totally from blame. Instead, it's opting for the very mild, ambiguously helpful "solution" of removing itself only from payment of one particular type of plan.

In short, Hobby Lobby is settling for that option because it can win it. This is because the Hobby Lobby case is not so much about culpability or religious liberty as it is about the degree to which individuals and businesses can wield the power that they have — however limited and bracketed by law and societal norms — to create the kind of world they find moral. Even if Hobby Lobby wins, it is not a clear-cut solution to their money being used to buy objectionable birth control; still, it's a swipe at the practice, however muted, however insubstantial. They want to use the strength they have as a corporation to allocate resources in the most morally perfect way they can envision, even if that turns out to actually be only very slightly different in practice than the current world. It's an act, in other words, with symbolic significance.

The most major claim being made here is, therefore, that societies should allocate resources in accordance with moral goods. Hobby Lobby's objection and widespread support from religious communities demonstrates that it's not enough to defer to law or societal expectations to determine which allocation of resources is just; rather, it suggests we must defer to more authoritative moral standards yet. A laissez-faire attitude won't do. Rather than the possibility of religious practice being infringed (as is usually the interpretation of "religious liberty") this is a case of religious power at war with secular power in a battle for how to morally distribute goods. Therefore so long as secular and religious powers differ on what constitutes the good — which I suspect will always be the case — cases like Sebelius vs Hobby Lobby won't ever do much more than kick further skirmishes down the road.
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