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Hobby Lobby: A Victory for Social Liberals

07/09/2014 11:15 am ET | Updated Sep 02, 2014

Social liberals have fought time and time again for the rights of individuals to hold and abide by values that differ from those of the majority. Social liberalism, at its core, strives for freedom from government in matters of sex, love, health, and family, and opposes laws aimed at influencing private morality, such as restrictions on homosexual activity or abortion. This struggle against moralizing majoritarian tyranny has often been aided by the Supreme Court. Prohibitions on private homosexual activity remained in force until the Supreme Court struck down these unfair and bigoted laws in the Lawrence v. Texas decision of 2003. The Defense of Marriage Act prohibiting federal recognition of same sex marriage was gutted in last year's United States v. Windsor decision. Perhaps the most controversial socially liberal ruling of modern history was the Roe v. Wade decision, affirming the right of women to legal abortions until the fetus is viable, and thus expanding the power of women to adhere to the dictates of their consciences with regards to motherhood. These rulings, among others, eschewed the coercion of social conservatism for a kind of moral libertarianism.

Despite popular statements to the contrary, the private freedom championed by social liberals has been expanded by the recent Hobby Lobby v. Burwell ruling. The Green Family, the founders and owners of billion-dollar crafts company Hobby Lobby, argued that funding four of the twenty contraceptives required by the Department of Heath and Human Services under the Affordable Care Act mandate would violate their pro-life religious views. The Religious Freedom Restoration Act of 1993, passed almost unanimously by a Democratic Congress and president, held that federal laws and regulations could not unduly burden one's freedom of religion, even if the statue had no intention of singling out one particular religious group. Under this twenty-year old act of Congress, federal statutes burdening one's freedom of religion must demonstrate a compelling governmental interest and be the least restrictive means of furthering that interest. In a 5-4 ruling, the Court's conservatives held that the Department of Health and Human Services (HHS) unfairly burdened Hobby Lobby's religious beliefs in requiring the corporation to either fund contraceptives or face hefty fines(about $2,000 per employee). The Court controversially ruled that closely-held, for-profit corporations have religious rights, and argued that the government can accomplish its interest in promoting women's health by other means.

Several leading social liberals have viewed the Hobby Lobby ruling as a blow to women's rights and a victory for theocrats. In her thirty-five page dissent, Justice Ginsburg wrote, "Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations ... The Court has ventured into a minefield." Cecile Richards of Planned Parenthood said in a statement, "the Supreme Court ruled against American women and families, giving bosses the right to discriminate against women and deny their employees access to birth control coverage." The New York Times editorial board criticized the Court, arguing that it "swept aside accepted principles of corporate law and religious liberty to grant owners of closely held, for-profit companies an unprecedented right to impose their religious views on employees." Ilyse Hogue, president of NARAL Pro-Choice America, argued that "five male justices essentially rule that discrimination against women is not discrimination at all" and allowed "bosses to make personal decisions about health care which we pay for with our labor." Hillary Clinton, Harry Reid, and Nancy Pelosi echoed similar sentiments, arguing that women's reproductive choices should be unimpeded by the religious beliefs of their employers.

This approach to the ruling by leading social liberals is in fact deeply illiberal, as well as disingenuous. Much of the criticism against the ruling has written off the decision as the whims of bigoted men, even though a Gallup poll released a month ago shows men and women split almost equally between pro-life and pro-choice positions. This data belies the repeated trope on the left that accounting for the concerns of religious groups is itself a manifestation of sexism and male privilege. Though much has been made of five male justices on the right overruling three female justices on the left, the ruling is more obviously a cleavage of left versus right than one of male versus female (especially given that male Clinton-appointee Stephen Breyer also dissented).

Another problematic criticism of the ruling has focused on the much-maligned concept of corporate personhood. Some social liberals fear that the ruling promotes a further expansion of corporate power in the wake of the disastrous Citizens United ruling, which allowed corporations free reign to spend money on elections and subvert the democratic political process. Despite its size and market cap, Hobby Lobby is a family-owned, family-run business, and it is indeed a reflection of its owners, as it is run on Christian principles. Workers are given time off on Sundays, and the company provides substantial funding to charitable organizations.

In being cast as an archetypal, evil corporation, Hobby Lobby has been unfairly vilified. A company that pays its workers almost double the minimum wage need not be seen as another horseman preceding an apocalyptic corporate takeover(save those feelings for McCutcheon v. Federal Election Commission). Justice Alito rightly argues that religion does not stop at home, but continues into the workplace. Though many throw around the word "corporation" as a kind of demeaning term in itself, it would be unfair to argue that one's right to religious practice is abolished if one decides to undertake the most American of activities, entrepreneurship. Alito rightly rejects the distinction between home and work, family and family office with regards to freedom of conscience. Engaging in for-profit work does not mean checking one's values at the door, or being required to fund something that is perceived as immoral.

Liberal critics have argued that the Court has chosen owners over employees by allowing employers to impose religious beliefs on employees. A popular sign held by pro-choice protesters outside the Court read, "Birth Control: Not My Boss's Business." This message results from a poor reading of the case. The Hobby Lobby ruling does not allow an employer to regulate what an employee does in his or her free time away from the office, but rather prevents the government from forcing an employer to fund what it considers to be an immoral activity. Birth control becomes a boss's business when the Department of Health and Human Services requires the boss to make birth control his or her business. In their admirable efforts to ensure broader access to contraceptives for women, the Obama administration and the HHS have run-up against a familiar foe: employer-based health insurance. Ezekiel Emanuel of the University of Pennsylvania argues that relying on employment for health insurance "promotes job lock, fuels health care inflation and keeps wages down." Emanuel argues that a shift towards vouchers and away from employer-sponsored health insurance may be an unintended consequence of this ruling. This change would have beneficial economic effects, and render mute the issues raised by Hobby Lobby. Still, as long as the employer-insurance system endures, requiring an employer to involve itself in its employees' health insurance will make private healthcare decisions, in some respects, the business of the employer. Given this anachronistic system, the Court rightly ruled in favor of protecting the freedom of conscience of the employer against the well-intended pro-choice coercion of the federal bureaucracy.

Considering the diversity of opinions in this country with respect to when life begins even among people of the same gender, and the complications of employer-sponsored health insurance, social liberals should see this ruling primarily as a victory of religious accommodation. Allowing a family-owned business to recuse itself from funding activities it deems immoral on religious grounds is a noble cause for social liberals. The American Civil Liberties Union strongly opposed the Hobby Lobby ruling on pro-choice grounds despite fighting for religious accommodations in the past, such as advocating to allow Muslim police officers to grow beards; why not support freedom of conscience again when it comes to a Christian family business? Supporting reproductive rights does not necessitate limiting the free religious exercise of businessmen. Women's legal reproductive rights are not threatened by this ruling, and the Court urged alternative means of providing cost-free contraceptives, such as direct federal subsidies.

It is short sighted for social liberals to decry this ruling because it lands on the wrong side of the pro-life/pro choice divide. Those on the left should view this ruling as a further endorsement of the idea that the private sphere of conscience is beyond the long reach of government. The Hobby Lobby ruling is a movement away from theocracy, not towards it. The five conservatives of the Supreme Court have scored a victory for individual freedom for religious and secular alike. For those who are truly social liberal, Hobby Lobby is another reason to celebrate this 4th of July.