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Wednesday, July 16, 2014

Two (more) op-eds on Hobby Lobby

Ann Lipton has nicely captured the zeitgeist with the notion that "there is something of an obligation for all corporate law bloggers to weigh in on Hobby Lobby."  Today, for example, the Conglomerate is starting up on its second Hobby Lobby symposium.  So it is with some trepidation that I highlight for you two additional pieces on that speak to this case once again.  First, Brett McDonnell defends the decision from a progressive perspective in "Ideological Blind Spots: The Left on Hobby Lobby," appearing in the Minneapolis Star-Tribune.  Brett argues that the decision provides space for corporations to have goals outside of shareholder wealth maximization -- something that liberals have promoted in the corporate social responsibility context.  The op-ed also recounts the history of RFRA, which overturned Justice Scalia's Smith opinion, and points out that progressives have traditionally been defenders of religious liberty and toleration.  The op-ed has (at this point in time) 716 comments, which kind of puts us blawgs to shame.

Second, Grant Hayden and I have penned "Who Controls Corporate Culture?", which appears this morning in the St. Louis Post-Dispatch.  Although not written with this intention, it is actually a nice complement/rejoinder to Brett's piece.  It argues that folks are riled up about Hobby Lobby in part because the company's 13,000 employees had no role in making the decision.  If corporations are going to be according political and religious rights, we argue, the employees need a voice in choosing how to exercise them, particularly when the primary impact is on employees.

Posted by Matt Bodie on July 16, 2014 at 10:57 AM in Constitutional thoughts, Corporate, Current Affairs, Workplace Law | Permalink


Sorry for typos.

Also, even if corporations can bring RFRA claims, something two of the dissenters leave open apparently, the particular facts of this case makes the ruling suspect. This would still leave open various types of RFRA claims with liberal overtones.

If we want single payer, fine, but without it, like with the benefit scheme in U.S. v. Lee, a comprehensive scheme will be logically in place for for-profit corporations in the public sphere generally speaking. Even exemptions in limited cases might not apply to big employers like those here.

Posted by: Joe | Jul 19, 2014 1:09:48 PM

Seconding the first comment some:

"In my world, activists and liberal professors (like me) are constantly asserting that corporations can and should care about more than just shareholder profit."

So? The debate here is if for purposes of RELIGION or particularly RFRA claims should a for-profit corporation be deemed to be able to bring claim. There are various ways corporations can and should care about more than profit. Is a right to a religion claim (as compared to let's say a free speech claim, since corporations more clearly "talk" such as via advertising) necessary for this? Arguably, but this "gotcha" to liberals is not so easy.

"seem deeply uncomfortable with RFRA’s strong protection of religious liberty against laws that do not explicitly regulate religious beliefs"

This is a general statement for which examples would be helpful. I think lots of liberals are okay with that, but wary in this context. If it was a single individual as compared to an employer of thousands, e.g. They are fine with a "respect for diverse viewpoints."

Finally, the concern is this won't have "little damage" in this case. The case opens up a range of health insurance benefits to be subject to exemptions, causing confusion when the aim is to have a united group of benefits under one program. The government makes a limited exception when certain non-profits and clear religious corporations (like a school) is at issue because on balance it protects a range of interests. I think this issue has been somewhat ignored in the face of other things. It is not so easy merely to have the government provide the specific coverage broadly. And, yeah, if all these conservatives what single payer, grand. Do it then.

Regulation for profit corporations to protect the rights of employees is a liberal policy. Nice try on that point, but no sale Mr. McDonnell.

Posted by: Joe | Jul 19, 2014 1:04:27 PM

"Brett argues that the decision provides space for corporations to have goals outside of shareholder wealth maximization -- something that liberals have promoted in the corporate social responsibility context. "

First, they've always had that - for how many corporations is the
primary goal maximization of the wealth of the top few executives
and the board?

Second, this assuming that this was a 'Scalia-ball' decision,
which won't be allowed to apply to liberal requests for exemptions.

Posted by: Barry | Jul 18, 2014 9:53:54 AM

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