Judge Ginsburg certainly got it right when she said that the Supreme Court's Hobby Lobby decision is going to create "havoc." And as the repercussions mount, so do the questions, in areas that range from economics and taxation to theology and philosophy.
There are those who might say that these questions are disrespectful to believers. But it is the Court which has arguably transgressed here, by declaring that a bloodless corporation is capable of belief. It has suggested that an economic and legal entity is capable of sharing in the profound and uniquely human phenomenon that is the spiritual experience. That notion could be described as disrespectful toward humanity.
Some might even call it blasphemy.
The ruling states that "closely-held corporations" don't have to provide reproduction-related health coverage if it violates the corporation's religious beliefs. If the Court intended to use the IRS definition of that term, then this decision covers more than 90 percent of all American corporations and more than half of all American workers -- over 60 million people in all.
This decisions has created an understandable firestorm of confusion, since the Court didn't trouble itself to explain what it means by "closely-held corporation." Which gets us to our first question:
1. Which owners determine a corporation's "religious beliefs"?
However "closely held" is ultimately defined, it will almost certainly involve a small number of owners (the IRS standard is up to five) who own a substantial portion of the corporation's shares. This often happens in family-owned companies whose principal owners are presumed to share the same religion.
By its nature, this ruling is heavily oriented toward Catholic and fundamentalist Christian families. That raises certain questions that would make my Catholic grandmother very angry, but which must be asked anyway:
What if they don't share a religion? What if some family members break with the faith, as is so common nowadays?
Do a majority of the private owners need to have religious objections in order for this ruling to take effect? Or can a minority among the ownership dictate the "religious beliefs" of the entire corporation?
What happens if Mom joins a New Age cult, Junior becomes a Scientologist, and Sis becomes an atheist? At that point, the majority of our five-member family no longer has a religious objection to contraception. Then what?
And, as a practical matter, can owners be deposed regarding their religious affiliations in order to determine the corporation's legal obligations?
On these and related questions, the Court offers no guidance.
2. What if different family members interpret Scripture differently?
Even if all the owners share the same faith, questions could arise. Law professor Eugene Volokh states emphatically that "when the person believes that complicity itself is sinful, the question is not whether our secular legal system thinks that he has drawn the right line regarding complicity; it is whether he sincerely believes that the complicity is sinful."
Volokh is saying it doesn't matter whether society believes a certain action is contributing to the sinful behavior. If the religious "person" -- in this case, the corporation -- believe that action makes him complicit in sinful behavior, then he/she/it has the right to refuse to engage in it.
But who determines that belief? In the example of our five-member family, is it Mom? Dad? A majority vote? Again, would depositions -- in this case regarding the details of each owners' theological positions - be considered appropriate?
Volokh may believe that his interpretation brings clarity to this ruling. It doesn't.
3. If a corporation has already violated its own "religious beliefs," can those beliefs still be imposed on its workers?
This question is particularly relevant to Hobby Lobby, since it's already been reported (in Mother Jones) that it invested heavily in corporations that manufacture contraceptives. In fact, nearly three-quarters of Hobby Lobby's retirement funds are reportedly invested in accounts which include contraceptive manufacturers among their holdings.
Does that render the corporation's self-professed beliefs null and void? Or is a corporation allowed to be selective, imposing its faith upon others but not upon itself according to its whims?
Which gets us to...
4. Does a corporation with "religious beliefs" have to follow all the tenets of its self-professed faith?
Most American Catholics use contraception. In fact, 82 percent of American Catholics find contraception "morally acceptable." (My grandmother would not have been among them.) That makes the "corporate person" known as Hobby Lobby an outlier within its own theological community.
Even if we recognize this particular entity as Catholic -- and somebody really should ask Pope Francis about that -- it is being far more doctrinaire, at least in one area, than most of its human peers.
And yet, Hobby Lobby is the kind of believer which Catholic conservatives derogatorily describe as a "cafeteria Catholic," picking and choosing among church doctrines like a restaurant-goer at a buffet. The Church's reproductive doctrines are based on what it describes as "reverence for life" and are inseparable theologically from its opposition to the death penalty, its commitment to ending poverty, and its opposition to unjust wars (Pope John Paul II explicitly included in Iraq in that category). The Church calls it a "consistent ethic of life."
Conservative, ideologically right-wing Catholics -- whether at Hobby Lobby or on the bench -- don't go for that. They're far choosier when it comes to Church teachings. Is that permissible under these circumstances? Volokh would presumably say "yes," because the interpretation of faith is a personal matter.
But that's just gets us back to our earlier question: who is the person here, and how is that interpretation performed? Unless individuals are empowered to speak for the corporations on matters of theology, shouldn't the appropriate religious authorities dictate what it means to hold such beliefs?
Unfortunately for Hobby Lobby, the Church probably wouldn't approach of its selective reverence for life.
5. Does the "religious belief" rule apply even when it's based on false information?
One of the striking things about the Hobby Lobby decision is the fact that its moral position was based on a misperception of reality. This is not attack on anyone's faith. It's a statement of fact. Hobby Lobby has reportedly argued that certain forms of contraception -- emergency contraceptives and IUDs -- terminate a fertilized egg after that moment has passed. But that isn't true. They prevent conception before it happens.
This does not meet Volokh's standard regarding an individual's personal right to determine what constitutes complicity in a deed. In this case, there is no deed being performed.
Someone may have a moral objection to techniques which prevent conception, but that is not the position that Hobby Lobby took. Will "corporate persons" be routinely allowed to make these decisions on false grounds, or to rewrite reality as "a matter of faith"?
6. What does it mean for the future of "corporate personhood" now that some corporations have more rights than others?
This decision specified that only "closely-held corporations" -- whatever those are determined to be -- may have "religious beliefs," and therefore can be relieved of certain obligations. That gets us into another knotty area that has yet to be explored. It means that, in this era of "corporate personhood," there are now two distinct types of corporate persons: one which can exercise religious rights, and another which cannot.
The long-term implications of that have yet to be considered, but here's one right off the bat: if one corporation is relieved of a costly obligation while its competitors are not, it will quickly find itself at a competitive advantage in the marketplace. That could provide a powerful incentive for corporations to "get religion."
It also means that the Supreme Court is tampering with the one thing it may hold even more sacred than religion: the free market.
7. Can a corporation be relieved of other responsibilities on the grounds of "religious belief"?
Our employer-sponsored healthcare system is arcane, clumsy, and all but unworkable. It is a historical accident, and it makes us unique among all developed countries. But, over time, U.S. employers eventually came to provide most of the nation's health care coverage. This was not and is not an act of generosity. It's a response to economic reality.
As leading healthcare economist Uwe Reinhardt recently explained in The New York Times, employers aren't giving health care coverage to their employees as a gift. The employees are indirectly financing their own health insurance through reductions in their take-home pay. What's more, no large American corporation could survive for long without offering health insurance benefits of some kind.
The system is the result of a historical anomaly which placed this obligation in employers' hands in return for lower salary costs. With the passage of the Affordable Care Act, that obligation was enshrined into law.
If corporations can be relieved of one legal obligation on the grounds of "religious belief," where does it end? Sure, the Court limited this particular decision. But that probably won't last for long. What is the difference between exempting a corporation from providing insurance coverage and exempting it from, for example, paying taxes?
8. Will a "third-party fix" be applied and, if so, who will carry the economic burden?
Austin Frakt is a very competent healthcare economist -- and he doesn't know the answer to this question either. It's already clear that any "fix" will be administratively complex and burdensome. What's not clear is whether there will be additional government cost.
If there is, that will constitute a redistribution of coverage cost from the employer to the general public. Isn't that, in effect, a government subsidy for religion?
If the government does not pay for coverage, it looks as if someone will have to write specialized coverage for contraception only. How would you underwrite something like that?
Whatever solution is proposed, we can be sure it will be complicated. And Congress is sure to object. So, if nothing is done...
9. How will the Court justify its decision's discriminatory effect on lower-income women?
And how will their conservative friends feel about a sudden upsurge in births on the poor side of town?
10. Will this finally force some common sense into the political debate, so that we replace employer-sponsored health care with a single payer system?
Years ago, I used to say that my only objection to single-payer healthcare was that it wasn't politically feasible. After seeing what the legislative (and lobbying) process did to the ACA, I'm now convinced that nothing but some form of single-payer can make it through our political process and still be capable of substantially improving our failing healthcare system.
This decision is proof of that. So is the obstruction against Medicaid expansion which is taking place at the state level. So are the dozens of other complications we've seen along the way.
And so is the ongoing high cost of healthcare which continues to burden most Americans. The rate of cost increase has slowed in recent years, for reasons that are still unclear. But, while that offers some relief, it's not a solution to costs that are already too high -- for results that are inferior to those of comparable nations.
That leaves us with just one final question. It's a bonus question for the Court majority, one which may have occurred to you already: If a corporation can hold religious beliefs, does that mean it has a soul?