By now, the world seems to have read the Hobby Lobby ruling issued by the Supreme Court and fallen into one of two camps. There is the side that thinks the court invaded the reproductive rights of women everywhere and needs to be castrated, and there is the side that is convinced it is about time that the President’s healthcare plan get some brakes applied to it. Republican and Democratic talking heads on television seem to be convinced this will be the defining issue of the 2014 election. Truthfully, I had not even been aware of the ruling until a phone call from the local press late Monday afternoon. I had encouraged Robin to leave, and was making ready to bike home before the arrival of the storms, when the phone rang. One of those who has reported on our efforts to free survivors of human trafficking wanted to know if I had an opinion about the day’s Supreme Court ruling. When I asked her what ruling, she was a bit surprised I was unaware. The problem with working in a church sometimes is that we end up cut off from the rest of the world. As the internet was its typically spotty self, I had not yet logged onto Facebook or Yahoo or really checked my inboxes. She told me that the Supreme Court had just declared that employers could not be forced to provide contraception to their employees. Better yet, as a religious leader in this community, she wanted to know if I had anything to say about the ruling and its impact on society and working women, in particular (And I thought the severe weather was the impending derecho!)
I laughed a bit at her flattery, but then I asked if that is really what the court had decided. I learned it was all over the newswires, blowing up Twitter and Facebook, and that it would be a lead story on many evening newscasts. Thankfully, I had recently been forced to organize my thoughts about gun control, so, as I tried to look up the ruling on the internet, I commented that decisions where our rights infringe upon one another sure do produce a lot of passion and hyperbole. Only important ones like gun control and contraception, she pointed out. I agreed, but noted that my thoughts on something like this would not be easy to fit in an article. Why? There are rights as citizens in conflict and even obligations as Christians in conflict in this discussion. Each side wants to declare the other an enemy of humanity, and neither really seems to want to talk. What would you say to both sides then?
What would I say, if I had the bully pulpit of the local press? One, slow down and pause. A quick glance at my Facebook feed made me wonder if people had taken the time to understand the issues at play in the ruling. Why is that? Some of my FB friends were declaring that we had returned to the age and understanding of cavemen; others were excited that the satanic baby killers were finally being reigned in. The name-calling was out of control, and I had invested a whole minute, maybe two while speaking with her. So, you don’t have a quote? Yes, I had a quote. I had several, but none would likely appeal to her and help her deadline. Like what? Like, I wish people would at least make an attempt at reading about the case. Hobby Lobby asked for an exemption from four specific items they deemed abortifacients. The company was not opting out of contraception; the company wanted not to kill any fertilized eggs, a position held by many Christians around the world. Like, I wish people understood that companies sometimes get a pass on certain activities because those who write the laws have not figured out the right balance to the conflicting rights of people. Like how companies can depend on public access on the one hand but limit it on the other? I caught her inference and agreed wholeheartedly. But I continued, like, a decrease in access to abortifacients will necessarily mean that women will choose abortions over other types of birth control. Like, Hobby Lobby needs to be careful if it wants to claim the mantle of a so-called Christian company. Like is there a difference in the way we treat closely held and publicly held companies. Like is contraception a right that companies need to meet on the part of their employees, or is it a benefit which can cause employees to seek employment elsewhere. Like maybe something negotiated by unions or employees but not necessarily a “Bill of Rights” issue? Maybe it is a Bill of Rights issue in the minds of some, but is it not also a Bill of Rights issue for those who own the business?
She started laughing at me. You are absolutely right. None of your quotes are going to be pithy enough for me. Good, I responded. That means I won’t be quoting you in the article I’m doing for tomorrow. I told her I could live with that. That doesn’t mean, though, I’m not interested in your thoughts. I really want to know what you mean by a so-called Christian company. I just have a job to do. Maybe you could take some time to explain that? We parted ways, with me warning her to be safe in the coming storm. Little did I know that the ruling would dominate the next few hours of my life. Can I shop at Hobby Lobby, or should all women, and men who love women, boycott it? How can you not condemn the ruling? Did you read Justice Ginsburg’s dissent? Did you hear Boehner hopes to use the ruling to get ObamaCare repealed? Where does our church stand on contraception? On abortion?
If we are going to decide what is best in the Hobby Lobby case, we should probably familiarize ourselves with the facts of the case. The owners of Hobby Lobby objected to the requirement that their healthcare plan had to cover two forms of IUDs and two drugs that are considered to be possible abortifacients. By abortifacients, scientists simply mean drugs that can cause a fertilized egg not implant or to miscarry. The so-called “Plan-B” drug might be the most famous nowadays. IUDs can also cause a fertilized egg not to implant in the woman’s uterus. For those who hold that life begins at conception, such drugs and devices are an anathema. I am not a lawyer, I do not play one on television, and I did not sleep in a Holiday Inn Express last night, but the ruling seems to say that Hobby Lobby, and other closely held companies, cannot be forced to provide access to what they perceive to be an immoral form of contraception. What is a moral form of contraception? In Hobby Lobby’s case, any drug or device which keeps the sperm from reaching the egg seems to be acceptable. Not widely published on my Facebook feed or any article or interview I have seen on the matter, Hobby Lobby seems to offer coverage for the such drugs as the pill and other implants. Accordingly, coverage for those drugs and devices will still be offered to those employees of Hobby Lobby on their healthcare plan.
Is this a silly distinction? For any who love Monty Python’s Meaning of Life, the answer would be yes. One of the big discussions in the Christian faith has been the question of when life begins and whether faithful Christians can use contraception. Over time, Roman Catholics have tended to focus on the purpose of sex primarily as a procreative act and therefore consider any attempt to prevent conception as a sin against God’s intent; Protestants, on the other hand, have tried more nuanced positions. Some would agree with Hobby Lobby’s distinction. Others would argue that Hobby Lobby’s distinctions are unnecessary. Claiming the mantle of fully Catholic and fully Protestant, it is not surprising that we have such a range of opinions within our own church. Within our parish, there are a number of opinions; and as we include the diocese and other larger bodies in the discussions, the opinions increase correspondingly.
Who is right? God only knows. I say that sincerely and with no hint of sarcasm. Is one of the purposes of sex procreation? Of course. Is it the primary purpose? I am not sure that it is necessarily the primary purpose. I am certain that it creates a unique bond between a husband and a wife, a bond that ought not be entered into with others as cavalierly or as lightly as we seem wont to do in modern times. Scripture often describes sex between a husband and wife as “knowing.” Part of that knowing is the shared intimacy that should come from the cleaving described by Genesis and by our Lord in His commentary on that passage in the Gospel. It can lead to procreation, but is procreation the primary purpose? Perhaps we should consider sex as having two or more primary purposes, and leave it at that for the purposes of the Hobby Lobby decision.
The case, as it was determined by the Supreme Court of the United States (SCOTUS), had merit. Hobby Lobby was being asked to provide something for its employees for which it had a moral objection. Interestingly, the case seems to have been more a referendum on the so-called 1993 Religious Freedom Restoration Act than on the Bill of Rights. In 1993, Congress passed a law near-unanimously that was signed by then-President Clinton which tried to implement a rather complex formula for balancing religious claims against certain policies (The impetus for the law was the denial of benefits of two Native Americans who had been terminated from their jobs for using peyote). SCOTUS, in its decision rendered this week, basically affirmed that certain companies are exempted from what the companies deem to be immoral policies. The certain companies are those that are tightly held. By that, the court held that those companies with a small ownership group could not be forced to act against their conscience. Presumably, publicly held companies and companies that are jointly owned by a number of different investors do not enjoy such a protection.
What happens next? My guess is that the decision will linger until the next big event. Some politicians will try and use the rhetoric around the decision to get elected to office. I have already heard a number of politicians talking about SCOTUS joining the war on women in this decision. There will be many talking heads and pundits describing what this means for the Affordable Care Act, for women, and for companies. There may even be discussions regarding other exemptions for tightly held companies whose faith is not of Christian origin. I do think, after listening to some talking heads on the left-leaning channels, one of the unintended consequences of this decision will be the walking back of requirements for a number of companies and their employees. Much praise has been heaped on Justice Ginsburg for her scathing dissent. The problem with her dissent, as smarter heads have already pointed out, is that her dissent gives certain judges cover to enlarge the number of companies given religious exemptions for any number of public policies. Put another way, just as Justice Alito’s dissent on Same-Sex Marriage has allowed left-leaning judges to rule various states’ laws against SSM unconstitutional, Justice Ginsburg’s dissent will give right-leaning judges the cover they need to grant more and more exemptions to companies, essentially gutting some of the Affordable Care Act’s reforms from within. Time will tell.
Will there be boycotts of Hobby Lobby? I would be shocked if there were not. Some consumers no doubt believe that the rights of workers supersede the rights of companies. I also imagine that there will be people who shop at Hobby Lobby because of this decision. They will agree with the company’s stand that they should not be forced to provide abortifacients and continue to shop. In other words, consumers will be voting with their dollars. In the end, that is the capitalistic economic system by which we govern ourselves.
As a pastor, and as I shared with the reporter earlier this week, I am more concerned about a company that proclaims itself “Christian.” Hobby Lobby will no doubt come under further scrutiny for its practices in the weeks and months ahead. If they are truly trying to be a Christian company, I applaud them. But if they are simply wrapping their company in the mantle of Christendom, we will hear the charges of hypocrisy and our Lord misrepresented yet again in the public sphere. Living as a Christian is hard enough as an individual; living as a Christian company must be infinitely harder. The decision is barely hours old, and already people have pointed out that Hobby Lobby’s 401K allows employees to invest in the companies that manufacture the drugs in question. Is that not a case of hypocrisy? As a former investment representative and a member of our Diocesan Board of Directors, I can say that it is challenging to invest morally. It is challenging not because it is harder to make money, but because companies are nimble. Acquisitions happen all the time. Companies that are able to be held today under so-called “morality clause” investing, may not be six months from now or a year from now. Policing such policies requires greater attention which means, in the end, higher management fees which reduce overall returns.
While I am willing to give the company the benefit of the doubt with respect to its 401K options for its employees, I wonder about other issues. Part of that wonder caused me to pause and consider before responding in writing. Does Hobby Lobby pay its employees a living wage? A Christian company would. Does Hobby Lobby purchase its goods knowing that its supply chain could be tainted by the stain of slave labor? A Christian company would not. Is Hobby Lobby generous in benefits regarding childbirth (maternity and/or paternity leave and/or adoption leave)? A Christian company should be. Does Hobby Lobby force its employees to work Thanksgiving and Sundays? A Christian would not. Other Christians could probably think of other aspects of the faith which should govern Hobby Lobby business practices and operations.
After just a couple days of looking for the answers to such questions, I am bit more comfortable with the idea that the company tries to govern itself according to many Christian principles than I was while on the phone with the reporter. Hobby Lobby is famously closed on Sundays in an effort to allow their employees an opportunity to go to church and spend time with their families. But they seem to do some other things well, even if much less publicized. The company has pledged to continue to offer the other 16 forms of contraception that were not included in the appeal heard before SCOTUS (yes, they offer 16 of the 20 contraceptions demanded by the Affordable Care Act). While the country needs to have a serious discussion about “livable” wages, Hobby Lobby does pay its employees, even its part-time employees, above the current minimum wage. Part-time employees receive $9.50/hour; full-time employees receive $14.00/hr. Compared to the current minimum wage of $7.25, Hobby Lobby is not doing too badly by its employees in terms of hourly wage. There is no way to know whether salaried employees are being compensated fairly for their hours worked other than anecdotally. If managers are jumping ship all the time, then that would be a sign they feel their compensation was not good compared to other companies. If managers stay with the company for long tenures, then their compensation may be competitive. Another negative sign would be the poor participation in its 401K plan, as noted by Brightscope. Are people making enough to be in a position to save, or do the employees of Hobby Lobby simply have bad saving habits? On another positive note, Hobby Lobby does not seem to be practicing overtly the current business practice of reducing all employees’ hours to make them “part-time.” Many companies, as a result of the Affordable Care Act, have simply reduced the “hours worked” to reduce those to whom they must offer healthcare plans. According to NPR, Hobby Lobby would be far better off financially by simply refusing to offer any healthcare plan to its employees, another common practice by many companies today. The fine to the company would only be in the neighborhood of only $26 million dollars, a huge savings compared to their healthcare plan costs.
Of course, one can make the allegation that there are supply chain issues in its current model. The company, as most, seems to try and buy goods at the cheapest possible prices and pass some of that savings onto its consumers. The greatest cost for many of the goods sold is the labor cost. Unfortunately, that means many owners of businesses in the supply chain decide to use slave labor to increase their profits and decrease the labor cost. As a result of California’s Supply Chain law, many companies have begun to pay attention to their supply chains. Some pay attention in words only; others, recognizing the negative PR and negative Goodwill should it come to light they were using companies that used slaves, have hired inspectors and tried to implement policies which give consumers some confidence that the items purchased are not tainted by slavery. In a cursory glance, I cannot state one way or another whether the company undertakes reasonable efforts to ensure that workers in its supply chain are not forced labor.
One last note to consider is whether Hobby Lobby is a blessing to those communities in which it does business. After all, part of God’s promises to His people is that He will be their God, they will be His people, and they will be a blessing to those around them. Are Hobby Lobby’s business practices generating similar SG&A as those companies that operate in a traditional manner? If so, perhaps other companies will look to model themselves a bit more like Hobby Lobby. If not, then companies will ignore them and God’s teachings on fair pay and sabbaths. Is Hobby Lobby a good neighbor or a revitalizer in the communities in which it operates? Does the fact that Hobby Lobby does business in a community cause an increase in employment and an increase in employee wages? Again, I cannot answer such questions myself. Those are questions best answered by city and community leaders around the country. If their stores are not well-maintained, if their stores appear uninviting, if the stores are not attractive, if they are helping to increase the job pool, if their taxes paid support the community, perhaps the company is not really embracing Christian principles in all things, just in certain things. Would it make them the first or worst hypocrites in Christian history? No. But it would do harm to the witness of Christians in the various communities in which Hobby Lobby operates.
Where do we go from here? Unlike those out trying to score points for their various perspectives or games, I do not know that the country needs to get excited or to panic. SCOTUS seems to have tried to apply the exemption of the RFRA narrowly. Will subsequent judges try to narrow the exemptions or widen the exemptions? I would bet on it. Will companies come forward and claim religious exemptions? Most likely. But many more companies will continue to view healthcare plans as a benefit used to attract and retain valued employees. In the end, the women affected by this decision will be our best source of information. If women and men (yes, employed men with spouses are impacted by this decision, too) who work for Hobby Lobby seek employment elsewhere, the job force will have spoken. By the same token, if the affected women and men continue to work for Hobby Lobby, then those of us on the outside may begin to get a glimpse that, perhaps, the employees were not as uncomfortable with this decision as those who do not work there.
In the bigger picture, the country needs to have some serious, but likely uncomfortable discussions. Is healthcare a right? Who provides it? Who pays for it? How can it be reformed? What is a living wage now? Do we continue, as a matter of public policy, to foot the bill for some companies to operate in our country by supplementing their employee pay or benefits? Or do we expect them to pay for their own employees and keep them off the public dole? Similarly, there needs to be a continuing discussion about the role of abortion in our country, a discussion wrapped in compassion rather than accusation and condemnation and fear. It is a discussion I think in which our church could lead, as we have a number of voices from both sides within our various dioceses and congregations who claim the same Savior as Lord. I wonder whether the strident voices on television have ever spent significant time with women and men impacted by the decision of whether to have or not have a child. Many in our churches have. I agree wholeheartedly that we are acting irrationally when we expect our hospitals to use heroic measures to save some babies and then use procedures to end the lives of others of the same age. Similarly, though, I think the Christian right does our Lord a disservice in its efforts to eliminate abortion entirely while seemingly working hard to eliminate support for those very babies it would see born. Perhaps, we should put down our megaphones and listen for a change. Maybe we should listen to the testimonies of those adopted, of those raped or abused, of those who faced dire health consequences and come up with a policy that tries to balance, as best as we can as human beings, the competing interests. And, much more controversial, there needs to be a serious discussion about sex in our country? We often seem to treat pregnancy as a failure, when, in fact, it is the natural outcome of sex. In many ways, the Hobby Lobby case reflects the need for that discussion. As a country, we seem to have bought into the idea that casual sex is fine between consenting adults. Put differently, as long as no one is getting hurt or degraded, whose business is it? The problem is that lots of people are getting hurt by the newfound casualness which society now demands. Sometimes the cost is emotional; sometimes the cost is financial. Sometimes, though, there are costs which do not rear their heads until later. As one of those engaged in the cleanup of some of those messes, I think society would do well to consider its views before it attempts to solve problems that flow naturally from its assumptions. In that, though, I recognize we are in the minority.
I also hope that individual Christians will begin to re-examine how they live their life as Christians. Part of my worry with the reporter was that Hobby Lobby claimed to be Christian in its appeal of the abortifacients. As a result of its claim, a natural spotlight on its actions was manifested. The questions about its 401K are just the first, in what I suspect will be several attempts, to call them on the sincerity of their belief. As individuals, when we claim Him as Lord, smaller spotlights are shone on us. Rather than the eyes of the nation’s press being upon us, we are under the examination of those in our daily life and work. How often do we realize this? How often do we live a life in front of them that is off-putting, hypocritical, false? Maybe, just maybe, as we as Christian individuals consider whether Hobby Lobby really tries to govern itself by Christian principles, we can take a closer look at our own lives and evaluate our own witness. Who knows? Maybe we will begin to take seriously in our own lives that being claimed by some, mocked by others, and called for by our Lord.
Peace,
Brian†
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