July 19, 2014
Hobby Lobby: Limitations and Extensions, Employees and Disclosure
Posted by Eric Orts

I'd like to thank the organizers again for this excellent symposium.  Here are a few of my final thoughts responding to a few comments.

First to return to the allegation that my concern for employees is one from the "Left" (see my previous response here) consider the following hypothetical.  Corporation L run my liberal thinking managers (and let's say it's a privately held firm similar in structure to Hobby Lobby) decides to run a progressive advertising campaign designed to appeal to LGBT consumers.  (Imagine a stonger and more politicized version of the United Colors of Benetton.)  A long-time conservative Christian employee -- Employee X -- works in the public relations department.  He asks to work on other related advertising, but requests not to work on this campaign.  He is fired, and the corporation claims a defense under Hobby Lobby.  What result?  I would argue that Corporation L has discriminated against Employee X's free exercise rights -- and should be legitimately subject to a lawsuit under the employment discrimination laws.  Protecting employees' rights to religion within organized firms is not a right/left issue, though it is true that the question is very highly politicized in our current environment.

Second I may have some answers or at least further thoughts to add to Jayne's interesting and self-described "pragmatic" post.  

On the question of the insurance companies ability to provide "work-around" coverage, I'm informed by a colleague that this is possible because the costs of pregancies/births/new children that insurers would have to cover if they do not provide effective methods of contraception are higher than the costs of the contraception.  The majority and concurring opinions seem to rely rather heavily on this fact.  (See, e.g., Court's Slip Op. at 3) (referring to "no net economic burden on the insurance companies that are required to provide or secure the coverage").  This fact may provide a limiting principle for the case acting as a precedent going forward, though it imposes an additional burden on the government to provide the adequate administrative work-around.

Jayne also asks about the next shoe to drop, and my guess is that it will be with respect to the similarly controversial question of gay rights.  An interesting recent case in the U.K. is relevant in this respect.  Hazelmary and Peter Bull ran a bed and breakfast out of their home.  They denied a room to Steven Preddy and Martyn Hall, a gay couple, and were sued for discrimination.  (Don't you love these names?)  The B&B owners claimed religious principle as a defense.  They lost.  In my view (at least tentatively), this case was wrongly decided (at least if transplanted to U.S. law).  It illustrates the wisdom of restricting some anti-discrimination laws with respect to very small businesses.  We may have a general policy favoring anti-discrimination in public-facing businesses, but it seems to me that forcing a conservative Christian to rent a room in their house to people who practice behavior in their own home that they believe is deeply immoral to their religious beliefs goes to far.  Note that a larger business with more than 15 employees or holding itself out to the general public in hotel or motel form should yield a different result.  Example:  Marriott (owned by Mormons) announces an anti-gay rental policy (which I don't think, for purely business reasons, they will do).  The next big case on the heels of Hobby Lobby may well be an LGBT discrimination case.  And note that customers as well as employees may be involved as plaintiffs.

Lastly, Jayne and others (including Joan here) ask about disclosure.  And Stephen Bainbridge has also inquired about my position on this question.  See his blog here.  I agree that disclosure seems to be appropriate in these cases.  I'm not sure who exactly should have jurisdiction -- perhaps the Department of Labor.  But disclosure of both nonprofit organizations and for-profit firms that invoke a free exercise claim seems to make sense.  I'm a little hesitant to emphasize this point, however, because I'm recently reading a book by Omri Ben-Shahar and Carl Schneider that makes a strong case against relying on disclosure too much.  In the case of organizational claims of religious rights, though, disclosure would allow for market forces to act against those who choose to enact various policies that are based on religious claims and in some cases allowed to discriminate against employees, suppliers, and customers in ways that would otherwise be illegal.








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