Five Reasons That Hobby Lobby Decision Is Bananas

(Not including the five dudes who voted for it!)


“We believe that it is by God’s grace and provision that Hobby Lobby has endured. He has been faithful in the past, and we trust Him for our future.

Hobby Lobby is THE place to shop with everyday Super Selections and Super Savings! Store hours are Monday through Saturday from 9 a.m. to 8 p.m. and all Hobby Lobby stores are closed on Sunday.”


“Our Company” page, HobbyLobby.com

Behold, the crux of Sebelius v. Hobby Lobby Inc., aka the Hobby Lobby case, decided today by the Supreme Court of the United States. HobbyLobby is a company — but it’s a company that is run by people, and those people have religious principles.

Those people are the Green family, devout Christians who run a privately-held, for-profit corporation with 602 locations across the United States and 13,000 employees — and they don’t want to have to provide contraception coverage for any of them. Making them do so under the Affordable Care Act contravenes their religious beliefs, they claimed.

But “they” were not at issue here — at issue was an “it” — Hobby Lobby, which is a corporation, not a person. Which led to the questions before the court: Does the law provide a corporation with this kind of religious protection? Can private employers deny women health care? Is Hobby Lobby is THE place to shop with everyday Super Selections and Super Savings?

In a 5-4 decision, the Supreme Court ruled YES to the first two questions. The last is between you and your doctor.

Just kidding. Who would ever consult a doctor about this stuff?

Today, the highest court in the land ruled that the yes, Affordable Care Act violates the religious freedom of certain employers and yes, those employers can refuse to provide contraception coverage to their employees, regardless of what religious beliefs those employees may hold.

That’s pretty bananas — and not just because a decision about what kind of access a woman can have regarding their personal reproductive health was made by five dudes with penises on behalf of more dudes with penises (well actually it was made on behalf of a corporation but apparently those can have penises now, too, as long as they’re only used for praying).

Okay okay. Now that we’ve had a moment to bonk our head against a wall, here’s why this decision is — say it with me — BANANAS.

  1. The Supreme Court Just Gave Corporations Entirely New Rights

Before today, corporations were not able to claim any sort of religious identity. That right was reserved for people. But today’s ruling held that in a closely-held corporation — legally defined as one wherein five or fewer individuals control more than fifty per cent of the stock — can take on the “sincerely held religious beliefs” of its its owners. That is new. Now certain corporations can claim a religious identity on their own.

The relevant text of the Religious Freedom Restoration Act (RFRA), states that the government “shall not substantially burden a person’s exercise of religion” — a PERSON’s. This ruling expands that definition to corporations and makes Mitt Romney retroactively and exruciatingly sort of right.

2. It’s a slippery slope.

Oh how we used to make ‘slippery slope’ jokes in law school, in conjunction with case notes for Lord Glidewell and Learned Hand. But actually, here, it is: There is no judicial test for “sincerely-held beliefs” (going to church? praying daily? just sort of having an opinion?) which leaves the door open for the less-than-devout to claim that they, too, are being oppressed in having to extend mandated health care coverage to women. No doubt lawyers are already scrambling to reconfigure corporate structure to qualify under “closely held” (you know those 5 or fewer “individuals” mentioned? Well “individuals” are defined to include “certain trusts and private foundations”). Pretty soon insurance companies will no doubt be offering a slew of packages to cater to all kinds of corporate clients, and surely those that don’t have to cover certain kinds of health care will be reflected in price! (Who knows, maybe the insurance companies have sincerely-held religious beliefs, too.)

Also slippery: The ACA already had an religious exemption — for religious groups.

Though the majority opinion states that this reasoning is limited to contraception (pause to let that sink in), Justice Ruth Bader Ginsburg disagreed, calling it “a decision of startling breadth” that could potentially open the door to opting out of all sorts of other laws on religious grounds. Gee, I wonder if an employer would feign religious belief in order to opt out of a law? Geee, I wonder if this could lead to workplace issues around sexual orientation?

3. This affects TONS of people.

As Justice Ginsburg points out in her dissent, “‘closely held’ is not synonymous with ‘small’” and many of them employ “thousands of persons of different faiths.” Per the Notorious RBG:

“Hobby Lobby is hardly the only enterprise of sizable scale that is family owned or closely held. For example, the family-owned candy giant Mars, Inc., takes in $33 billion in revenues and has some 72,000 employees, and closely held Cargill, Inc., takes in more than $136 billion in revenues and employs some 140,000 persons.”

Wow. That’s a lot of people.

But maybe these tiny little corporations with sincerely-held religious beliefs are few and far between? Not so fast: “Over 90 percent of all businesses in the United States are closely held.” Holy moly.

4. This is completely, totally backward.

Wait which part? The part where:

  • Male justices apply this decision specifically to contraceptive care for women — in order to protect against discrimination?
  • any decision limiting access to cost-free contraception will actually increase the number of unintended pregnancies and thus the number of abortions?
  • most of the underlying complaint was based on bad science, because the pregnancy-terminating “abortifacients” complained about by Hobby Lobby included Plan B, Ella and ye olde time-tested intra-uterine devices (IUDs) which are all, literally, contraception — that is to say, they prevent pregnancy from taking place, so aren’t abortifacients at all?
  • sometimes birth control pills are prescribed — by a doctor — to regulate brutal periods (can I get a what-what ladies)?
  • that anything prescribed by a doctor could be subject to override by the sincerely-held religious beliefs of your boss?
  • contraception has been objectively found to be “critical” for giving women “the economic autonomy to pursue goals like becoming financially independent or getting a college degree”?
  • women’s health care has been carved out as separate and lesser than just “health care”?
  • 99% of sexually active women have used contraception?

Wrong! Actually the most backward thing about this is that Hobby Lobby claims to run its company “in a manner consistent with biblical principles.” Which means you’d best be getting yourselves to the unclean tent, ladies. Leviticus 15:19-30.

5. WTF with this activist court????

Wasn’t it the GOP decrying activism from the bench? Yet here are Justices Alito, Roberts, Scalia, Thomas & Kennedy going an inventing new corporate rights, ignoring the Court’s own precedents, using the First Amendment like a sword and pretty much making stuff up as they go along. As Michelle Dean at Gawker points out, Congress already specifically considered this issue with the Blunt Amendment in 2012, which called for granting employers with moral objections the right to opt out of the contraception coverage requirement — and which was defeated.

Never mind that discrimination against women is being defined as less compelling than discrimination against the people who want to discriminate against those women. Redefining “discrimination” as “freedom of religion” seems very activist indeed.

So in conclusion, for these and many other reason, this decision is bananas. I just hope that somewhere, sometime, there will be an opportunity to…appeal.


BANANA PUN FTW!

Rachel Sklar is the cofounder of Change The Ratio & TheLi.st as well as a former lawyer who writes frequently on gender, media and culture. This was her favorite song in Grade 4 Music. She does not apologize for that banana GIF.