The Supreme Court’s decision in Burwell v. Hobby Lobby — that for-profit businesses could have religious rights — was groundbreaking and, for many, alarming. A year later, the question on everyone’s mind remains: How far do those religious rights go? Knowledge@Wharton spoke with Amy Sepinwall, Wharton professor of legal studies and business ethics, about two papers she authored on the limits of that ruling, how the law might evolve, and where courts ought to draw the line. The two papers are: “Conscience and Complicity: Assessing Pleas for Religious Exemptions After Hobby Lobby” and “Corporate Piety and Impropriety: Hobby Lobby’s Extension of RFRA Rights to the For-Profit Corporation.”
An edited transcript appears below.
Knowledge@Wharton: I understand the research papers you published recently tie back to an op-ed you wrote for The Washington Post about whether a corporation can have a conscience.
Amy Sepinwall: That’s right. And subsequent to that, there were two theoretical articles that followed after the court issued its decision in the Burwell v. Hobby Lobby case, which is the jumping-off point for questions about corporate conscience.
Hobby Lobby, as I’m sure you know, involved a large chain of craft stores that was owned by the Green family. They had incorporated. The Green family has objections to certain contraceptive devices, but under the Affordable Care Act, employers have to provide their employees with health insurance, and that health insurance has to include all 20 FDA-approved contraceptive devices. Four of those are ones the Hobby Lobby owners believe have the potential to cause embryo destruction, so they didn’t want to fund an insurance plan that included those. And they were asking — not that they as individuals get an exemption from having to fund these methods of contraception — but instead that the corporation itself get an exemption. And they invoked as the legal hook for their plea the Religious Freedom Restoration Act.
Knowledge@Wharton: In terms of the research you were doing, what were you really looking for? What were you going after?
Sepinwall: One of the really interesting questions in all of this is the place of the corporation when it comes to religious exercise and religious freedoms Twitter . There are lots of churches that are incorporated. There are Catholic hospitals that are incorporated. We don’t seem to have too much trouble acknowledging that they should have rights of religious exercise, but what about for-profit corporations? What is it that the for-profit corporation is for? And is that an appropriate platform or venue for individuals to be seeking to express their religious beliefs? Or instead, should we say, “Look, your religious beliefs are private. Feel free to do what you’d like in your home, but you can’t be imposing those beliefs on your employees.” Or, you can’t be using them to guide this entity that is, first and foremost, an entity aimed at making money.
“Is [a for-profit corporation] an appropriate platform or venue for individuals to be seeking to express their religious beliefs?”
Knowledge@Wharton: How much of this discussion relies on the fact that the Hobby Lobby case involved a family-owned company? How much does the ruling that companies may have religious rights depend on the idea that they may be family-run operations?
Sepinwall: The Court was at pains to underscore the fact that the decision in the case — which allowed Hobby Lobby to claim these rights of religious freedom — applied only to closely held corporations — so, family-owned corporations. You might think that the decision isn’t going to have a lot of reach as a result of that. And typically when we think of corporations, we do think about these large, publicly traded corporations.
But in fact, there are closely held corporations that employ thousands and thousands of employees. The J.W. Marriott Corporation, which owns Marriott Hotels; Cargill is another one that has a lot of employees — the number of employees who might be affected is potentially very large. A lot of small and medium-size enterprises tend to be not publicly traded, and the decision would apply to them as well.
Knowledge@Wharton: It’s hard to believe that when you’re talking about a family owned business that the family’s beliefs wouldn’t come into play somehow. But for the most part, when you think about family-owned businesses, you’re talking about smaller entities. You’re talking about an operation where the people who own the company have probably a fairly solid relationship with the people who are in the warehouses, doing the work, whatever it might be. So, to have that not be a part of it is a little surprising to me.
Sepinwall: Right. And I am largely in agreement. In the case of Hobby Lobby, you’re right that the religious beliefs permeated other facets of the business too. Hobby Lobby doesn’t sell shot glasses. And it’ll hold prayer sessions.
This case was not a pretext to get out of having to pay for contraception for women. I think it’s safe to say that the owners sincerely believed that these methods of contraception were wrong. At the same time, Hobby Lobby employs over 20,000 employees, and the health insurance covers not just the employees but the employees’ family members too. So, the number of women who were potentially going to not have coverage for their contraception was very large.
With all of that said, the government was able to provide a work-around so that Hobby Lobby didn’t have to subsidize the contraception and women wouldn’t have to pay out of pocket to get contraception. Given that the government was able to arrive at this compromise such that women were not going to bear the costs of the owners’ religious observance, I think it makes very good sense to proceed in a way that honors their religious convictions.
Knowledge@Wharton: Right. So, going forward, now that the Hobby Lobby case has set the bar, what are the areas that need to be looked at as potential areas for religious exemption?
Sepinwall: I think where we’re really seeing the impact is in cases involving businesses that don’t want to have to participate in gay weddings. There is this concern that the Supreme Court is going to rule very imminently that states either have to allow gay marriage or, if not, that they have to recognize gay marriages that are legal in other states. The response among those who oppose gay marriage is, “OK, fine, maybe gay marriage is legal, but we don’t want to have to facilitate it in any way. So, I’m a florist, I’m a baker of wedding cakes, I’m a wedding photographer — don’t make me participate.” Because of this, you see these Religious Freedom Restoration Acts being enacted at the state level in Indiana and Arkansas, which have attracted a great deal of media and public attention.
Knowledge@Wharton: If memory serves, there was a baker in Indiana who objected to doing a cake for a gay wedding ceremony. And the bakery received unbelievable backlash. It really didn’t have to involve the government in any way. The community around them really made their statement. I think they boycotted the baker.
Sepinwall: Right. There has been a tremendous amount of public outcry in the face of these efforts on the part of wedding vendors to not participate. I mean, everyone from Miley Cyrus to MC Hammer is getting in on the game — tweeting their opposition. And the Indiana story broke right around the time of the NCAA championship game, which was going to be held there, so there was a lot of public attention in light of that, too.
“There are Catholic hospitals that are incorporated. We don’t seem to have too much trouble acknowledging that they should have rights of religious exercise.”
But the relationship to Hobby Lobby is one where these bakery owners or florists are saying, “Look, what I do is expressive in a certain way and I don’t want to have to be lending my expressive, my artistic capacities to this enterprise with which I disagree.” And there’s, I think, some sympathy that the claim should garner. Imagine, for example, that you’re a wedding singer and you’re being asked to bless the union through your music and you oppose gay marriage.
At the same time, I think the relevant legal precedent in the way that we as a polity should be thinking about this is the case of Loving vs. Virginia, which was a case challenging what was, in Virginia at the time, a law prohibiting interracial marriage. And that law had as its motivating ideology not just the idea that the races shouldn’t be mixing, but that the races shouldn’t be mixing because one is superior to the other. These wedding vendors want to be able to say, look, we’re not opposed to gays and lesbians. One in particular was a florist in Washington who was asked to provide the flowers for a gay wedding ceremony. And she said, look, one of the members of the couple was someone who had been a customer of hers for 20 years. She liked him a lot. But she just couldn’t as a matter of conscience provide flowers for this ceremony that she opposed.
I think the way to think about that is to say, if instead it were an interracial couple, we would have great difficulty thinking that someone could legally enact their opposition to interracial marriage by turning away customers. And that seems to be the way we should think about gay marriage as well.
Knowledge@Wharton: In some respects I think that this is also just an issue of time. As you mentioned with interracial marriage, obviously there were people that did oppose it. I think that there are still probably some that do. But there are probably far fewer people that do than 20 or 30 years ago. As time goes on, we’ll see these types of beliefs change. And, as you said, the Supreme Court will have its influence as well.
Sepinwall: I think that’s exactly right. It’s really been remarkable how quickly attitudes about gay marriage have changed. It’s been remarkable and wonderful. And some of the commentary in this area is that these claims of religious freedom are not really about religious freedom. They’re about trying to find a space from which to argue against practices that one doesn’t like. It’s about trying to undermine gay marriage, not just trying to prevent one’s soul from being wrapped up in enterprise that one doesn’t believe in.
On this question of time, the Supreme Court is poised, as I said, to rule on whether states have to legalize gay marriage. And the conservative justices seem to be focusing on that piece, saying, “Look, it’s not really for the Court. This should be a matter of popular opinion. We should just wait until society as a whole is ready to embrace gay marriage.” So, it’ll be interesting to see how that dynamic ends up informing the decision.
Knowledge@Wharton: It is an interesting and important piece for the Court to think about, because of how important it is to our society right now.
“As it currently stands, the law doesn’t ask courts to think very much about what the implications are going to be for third parties.”
Sepinwall: I think that’s right. There was another one of these cases involving a wedding vendor — this time, a New Mexico photographer who didn’t want to participate in a lesbian commitment ceremony. She took her case to the Supreme Court of New Mexico and lost, so she was not allowed to deny service to gays or lesbians. And then she asked the U.S. Supreme Court to take her case, and they declined to do so. So the U.S. Supreme Court hasn’t yet rung in, but I think in the legal community it’s expected that at some point the Court is going to have to get involved in these questions.
Knowledge@Wharton: Even a year later, the Hobby Lobby case is still something that is very much talked about. And it’s going to be continually talked about because of how important and how groundbreaking it was.
Sepinwall: That’s exactly right. It’s the first case to recognize that corporations — for-profit corporations — have rights of religious freedom. It potentially affects thousands and thousands of people. The worry is that it’s not just going to be employers who object to contraception, but employers who object to other kinds of health treatments — that it’s going to extend beyond health care benefits to other kinds of benefits or employment practices: whom we hire, whom we fire, and on what grounds.
Washington, D.C., had a law pending that was going to overturn a prohibition on businesses from firing women because they had had abortions. The House voted in favor of this law that would make it okay for businesses to fire women because they’d had abortions. And it didn’t get beyond the House.
Knowledge@Wharton: You said this has the chance over the next few years to play into other areas. Is there a natural stopping point, beyond which the courts will have to say, this was not what the Hobby Lobby decision meant?
Sepinwall: It’s a great question, and one of the pieces that I [wrote] is related to this. It’s a worry that as it currently stands, the law doesn’t ask courts to think very much about what the implications are going to be for third parties. In the Hobby Lobby case, what burdens are women going to be made to bear if we do grant this exemption?
Nowhere in the tests that the courts apply are they asked to think about what it’s going to mean for other people who aren’t before the court right now if we grant an exemption. But I think that question is one that needs to figure centrally in judicial deliberations about this. If courts are made to think about how much of a burden they impose on other people by granting an exemption, and if they’re also given guidance that they shouldn’t impose too much of a burden on third parties, then I think we create a stopping point. And the stopping point becomes, no, we can’t give you this exemption, because if we give it to you, it’s going to unfairly burden these other people.