Hobby Lobby and the death of all reason

Today the Supreme Court released their verdict in Burwell v. Hobby Lobby or, as people know it, the case about contraception.  The ruling came down 5-4 with all the women plus one dissenting.  The talking heads have been at it all day and I doubt that I could add anything very novel to the discussion about the politics around the case.  That said, my particular schooling is in business so there are some things I want to say about that.  First let's talk about the case.

Just the facts

Hobby Lobby, Conestoga Wood, and Mardel are each corporations that are privately owned by small families.  For brevity I will refer to Hobby Lobby from here on out, but I include all three companies when applicable.  These families have brought cases against HHS over the Affordable Care Act's mandate that large employers provide contraception to their workers.  Specifically they object to four of the 20 contraceptives that have been approved by the FDA on the basis that they can prevent a fertilized egg from implanting in the uterus..

• Plan B "morning after pill" (Note the sidebar box at the top of the page)
• Ella "morning after pill"
• Two different Intra-Uterine Devices (IUDs)

According to the Mayo Clinic, Ella can prevent a fertilized egg from attaching to the uterus.  As for the IUDs, one does and one doesn't according to WebMD.  Disclaimer here:  I'm not a doctor.  Do not take what I say as definitive medical knowledge.  I just know how to use Google to find things.

So Plan B and the copper IUD prevent the egg from ever getting fertilized.  That seems like relevant information in a case about abortifacients but who needs facts in a legal case?  I can find no place where actual doctors were brought in to educate anybody about how these things work.  Just accept that two contraceptives whose only function is to prevent fertilization were lumped in as abortion drugs.  And real abortion drugs, such as RU-486, are not mandated to be covered by the Affordable Care Act.

If you really want to get your nerd on, here's an actual academic paper on emergency contraception.

Seems legit

There are particular lines from the verdict I want to call out.  Ruth Bader Ginsburg's dissent is becoming perhaps the mostly widely read dissent (by laymen) in history so I'll leave that alone.  I'm more interested in lines from the majority opinion.

"According to HHS ... if these merchants chose to incorporate their businesses ... they would forfeit all RFRA (and free-exercise) rights."

Yes.  Exactly this.  By definition a corporation is its own "person" in the legal sense.  To quote that link, "The process of legally declaring a corporate entity as separate from it's owners." (emphasis mine)  It is separate.  This is meant to protect the owners, but it also means that the new entity does not share any personal traits of whoever owns it at the moment.  Not heredity, nationality, opinion or religion.  This new entity is not concerned about it's own immortal soul, and can make no decisions concerning religion.  So it is right that once you incorporate a business, the business loses RFRA protections.  The owners are still protected personally, but the gap that keeps them safe from liability also separates the business from their religion.

"As we will show, Congress provided protection for people like the Hahns and Greens by employing a familiar legal fiction: It included corporations within RFRA’s definition of “persons.”

Even the majority acknowledges that considering corporations to be people is a fiction.

"And protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies."

Nope.  They're two separate groups.  See above for the definition of incorporation.

“General business corporations do not, separate and apart from the actions or belief systems of their indi­vidual owners or employees, exercise religion." - Third Circuit

"All of this is true—but quite beside the point. Corporations, “separate and apart from” the human beings who own, run, and are employed by them, cannot do anything at all. " - Alito

Someone send the Third Circuit a basket of cookies.

Let's look at Alito's point.  Apart from the people who run it, the corporation is basically a stump.  When I was a boy, my great-grandmother was almost always sedated by her medications.  Other people cared for her and made necessary day-to-day decisions for her.  If one of the people who saw to her needs was Jewish, would that make my grandmother a Jew?  No, it wouldn't.  What if they were gay, would my grandmother get a hankering for girls?  No, that's idiotic.  The traits of those who act on behalf of an entity are not assumed by that entity.

"According to HHS and the dissent, these corporations are not protected by RFRA because they cannot exercise religion. Neither HHS nor the dissent, however, provides any persuasive explanation for this conclusion."

Wait... people arguing in front of the Supreme Court couldn't explain how a mental concept couldn't exercise religion?  Who did the government send, Mr. Bean?  Dorf does law?  WTF?  One more:

"The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients."

See how science and reason were barred from the courtroom?  Show me in the bible where anyone discussed Plan B or copper IUDs.  Plenty of religion relies on unquestioning faith and I'm not challenging anything intangible like heaven or a soul or a deity or the divinity of certain practices.  But I am challenging the idea that uninformed opinions can be passed off as religious beliefs.  I mean opinions about things that can be explained in the here and now.  

I guess, in the face of Young Earth Creationists, that needs to be narrowed further.  These drugs and devices were invented recently, and information about how they actually work is only hidden behind the effort to find it.  Just researching this blog post I have 20 or so tabs of information open.  It is easily found.  This isn't ignorance on the part of the Greens and Hahns, it's forced negligence.

What now?

The critical problem here is that the separation between owners of corporations and their companies has now been bridged.  Under the guise of religious liberty (and isn't that always the way?) owners can now enforce whatever they want on the employees of their companies.  It doesn't even have to pass a test as a legitimate part of the religion or even a fact.  So long as the owner claims it is his/her religious view, they now have Supreme Court precedent to enforce it on their employees.

What about when the pendulum swings the other way?  When someone dies because they didn't have access to medicine or a transfusion or some other thing denied by religious edict, will the owner still enjoy the protection of the corporate structure?  Or will that protection be found meaningless in light of the transference of actions between owner and corp?  All people attached to a corporation work on behalf of that entity.  If the entity itself is working on behalf of a person, then the separation is meaningless and will be found so before a judge before too long.  This gap in liability is what separates a corporation from a sole proprietorship.  Today's ruling carries dangerous precedent for our entire approach to business structuring.

I submit that the solution to not just today's travesty but several rulings going all the way back to Citizens United is this: Update the Dictionary Act definition of "person" to not include non-biological entities.  Give those things that enjoy legal status but are not human another word.  Perhaps "entity".  And that way we could leave behind this last decade of insanity where people seriously discussed whether the company itself, instead of the people acting on its behalf, were actually capable of worship, or participation at a super-citizen level in our democracy.