Cross-posted from Smirking Chimp
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 -- believes that action makes him complicit in sinful behavior, then he/she/it has the right to refuse to engage in it.