Author archives: Travis Weber

Corporate Social Responsibility, Race-Based Companies, and Hobby Lobby

by Travis Weber

March 21, 2014

In recent years, Corporate Social Responsibility (“CSR”) has sprung up as an area of interest to a variety of business forums — they promote it, talk about it, tout their CSR “compliance” on their websites, and brag about it to whoever will listen. Many corporations have entire CSR departments. They release yearly reports documenting their CSR compliance. Law firms have even established CSR practice areas. Corporations may seek to ensure they are advancing “sustainable” practices were possible, that they are treating indigenous populations equitably, and that their suppliers are not committing human rights abuses. “Green” corporations may enact policies above and beyond regulatory requirements in order to further their goal of caring for the environment. While laws related to CSR have been enacted in various jurisdictions, much CSR corporate compliance is still voluntary. So why have companies moved toward and embraced CSR? While they would likely provide a variety of reasons, the fact remains that the driving force behind these businesses — the people who run them — think it is a good thing.

By and large, no one critiques corporate interest in CSR. Many say it is a good development. No one claims that “corporations” cannot engage in CSR-related advocacy. And most of the large corporations with CSR departments are for-profit companies.

How, then, do we arrive at the curious and odd criticism of Hobby Lobby for relying on religious beliefs in its operation? There is no good answer to this. Hobby Lobby’s religious positions are the result of the same driving force producing CSR program at other companies — its owners and operators. It is ironic that the company being criticized for its challenge to the HHS mandate has voluntarily implemented generous CSR type programs, like starting its new employees at 90% above the minimum wage. Yet Hobby

Those claiming a corporation cannot have a religious identity look to be on increasingly weak ground, however, as the U.S. Court of Appeals for the Fourth Circuit recently ruled in Carnell Construction Corportation v. Danville Redevelopment and Housing Authority, No. 13-1143 (4th Cir. Mar. 6, 2014) that a corporation can have a racial identity under federal law. If the issue is whether a corporation can have an “identity” that drives its goals and priorities, what’s the difference between a “religious” and “racial” identity?

As Matt Bowman, an attorney for Conestoga Wood Specialties Corporation (which is facing the same issue as Hobby Lobby at the Supreme Court), points out: “[a] gaggle of special interest groups supporting Obamacare’s coercion is outraged at this suggestion. They profess to be shocked — shocked! — that anyone would say a family business has religious freedom. But these same groups apparently favor a legal regime that says for-profit corporations can be racial minorities and can exercise the most intimate and private constitutional “rights” to contraception and abortion. Their outrage is withheld until families in business claim to be religious.”

Hobby Lobby’s opponents know for-profit businesses are an influential social force. Scared of the prospect of not being able to smother all of society with their pro-contraceptive and pro-abortion views, Hobby Lobby’s opponents must find some distinction upon which to rest their hat — in this case it just happens to be seeking a profit. Lacking a legitimate reason to deny American small business owners the right to exercise their faith, opponents find an easier time inferring such businesses are “bad” and entitled to less protection because they seek to make money. This claim looks increasingly desperate, however, in face of the fact that the businesses promoting the CSR practices discussed above are almost all very large, for-profit corporations. And no one takes issue with that.

Few have a problem with corporations being able to provide shoes for children, supply water for those who need it, provide special attention to their environment, and ensure their suppliers are not committing human rights abuses. Neither should there be any issue with a business being run according to the faith of its owners.

Why you should care about Elane Photography

by Travis Weber

March 19, 2014

Sometime in the next few weeks, the U.S. Supreme Court is expected to decide whether it will hear the case of Elane Photography v. Willock. The owners of Elane Photography are Christians, and their views and beliefs are reflected in how they run their business. Yet the New Mexico Supreme Court ruled that Elane Photography violated New Mexico’s anti-discrimination law provisions regarding sexual orientation when its owners refused to agree to photograph a same-sex commitment ceremony. Elane Photography’s owners are merely asking the government to not compel them to participate in actions which violate their religious beliefs. Consequently, when the government forces them to participate in the same-sex ceremony by photographing it (with the threat of a fine if they refuse), the government is forcing and compelling Elane’s owners to speak a certain message in violation of the First Amendment.

Even supporters of same-sex marriage see the danger of the government’s position and its use of anti-discrimination law in this case. Writing in the Wall Street Journal, Eugene Volokh (professor at UCLA law school) and Ilya Shapiro (with the Cato Institute) point out that a ruling against Elane Photography here sets a dangerous precedent that allows the government to compel speech in the cause of furthering equality through powerful and broad anti-discrimination laws. The next victim may be someone quite unlike Elane’s owners. It could be “a freelance writer who declines to write a press release for a religious organization with which he disagrees.” According to the New Mexico Supreme Court’s reasoning in Elane Photography, this writer has violated anti-discrimination law because his refusal to write such a press release is discrimination based on religion, just like Elane Photography’s refusal to photograph the commitment ceremony is being viewed by the government as discrimination. Yet a photographer, writer, speaker, publisher, or other artist “must have the First Amendment right to choose which speech he creates, notwithstanding any state law to the contrary.”

As Volokh and Shapiro state, “a couple that is told by a photographer that she does not want to photograph their commitment ceremony may understandably be offended. But avoiding offense is not a valid reason for restricting or compelling speech… . The First Amendment secures an important right to which all speakers are entitled — whether religious or secular, liberal or conservative, pro- or anti-gay-marriage. A commitment to legal equality can’t justify the restriction of that right.”

Elane Photography highlights an important point — individuals with different views regarding the definition of marriage can still agree that free speech must trump “forced equality.” Indeed, the freedom from such “compelled speech” is protected by the First Amendment to the U.S. Constitution. When speech motivated by religious beliefs is forced to pass muster with the government’s censors and Americans are forced to speak a certain message under the threat of fines and force of law, all who love individual liberty and free speech (regardless of personal views) must stand up and pay attention.

On the Free Exercise of Government…

by Travis Weber

March 10, 2014

Legal scholar and novelist Garrett Epps opens his recent piece in The Atlantic with the following statement: “If the conservative justices uses [sic] the same logic they have in the past, Hobby Lobby’s case against the contraceptive mandate doesn’t stand a chance.”

Mr. Epps conveniently finds praise for Supreme Court precedent, a position often either used or discarded as best serves the cultural assault on Christian ethics. Indeed, one can scarcely find lamentations about discarded precedent as district courts currently invent a federal constitutional right to same sex marriage. Here, however, Mr. Epps simply distracts from the free exercise issues in the Hobby Lobby case.

Hobby Lobby’s case centers on a free exercise claim brought under the Religious Freedom Restoration Act (RFRA). But Mr. Epps relies almost entirely on Establishment Clause cases as he attempts to argue that Hobby Lobby has no right to refuse to pay for certain contraceptives.

After laying out his arguments, he appears to receive the following special revelation: “But that’s the rub… When government directly funds religion, the Establishment Clause is violated; but when government gives benefits to individuals, and the individuals pass on the benefit to religion, no dissenter is injured, so there’s no violation.” After discussing how taxpayers should not be forced to provide money directly to churches, he asks: “Why is Hobby Lobby injured if the taxpayers in the Establishment Clause cases are not?”

I would have thought the answer is rather clear: the taxpayers are not seeking to exercise any right based on a religious objection to action compelled by the government. Exactly what “rub” Mr. Epps is talking about remains unclear. Hobby Lobby’s case is about whether the “exercise of religion” is substantially burdened under RFRA. It is not about the Establishment Clause or individuals being forced to support religion at the direction of the government.

Nevertheless, Mr. Epps continues: “[T]o assert a right to control employees’ private choice will be to hold that religious people — or, even more ominously, some favored religious people — are more easily injured than others, that their free-exercise rights trump those of their employees.” Mr. Epps does not explain what he means by “favored” religious people, but he falsely asserts that Hobby Lobby is seeking to control its employees’ choices. The Greens are not preventing their employees from obtaining the contraceptives at issue; they are merely saying: “Don’t make us violate our consciences by forcing us to use our company as the conduit for their delivery.” The Greens, like many Americans, simply want to remain free to live and work according to their beliefs. They don’t want to be forced to choose between paying crippling fines, shutting down their business, or dropping healthcare for their employees in order to avoid violating their consciences.

It remains unclear what “free exercise rights … of … employees” Mr. Epps is talking about. The reader hopes he is not suggesting that an individual’s religion requires their employer to pay for their contraception — indeed, such an idea is nonsensical. In any event, such musings are merely a distraction from reality, as Hobby Lobby’s employees have suffered no violation of their constitutional rights — they retain full access to all the contraceptives available under the employer mandate.

Furthermore, Hobby Lobby is willing to pay for 16 of the 20 contraceptives required by the mandate. The Green family only objects to 4 drugs that destroy human embryos, and does not want to be compelled to pay for the destruction of human life. In addition, Hobby Lobby is not objecting to employee access to these 4 life-destroying drugs, but merely saying it should not be compelled to cover them.

Mr. Epps’ claim that “[a]ll consciences are equal; but some are thus more equal than others” might sound catchy, but it twists the truth and clouds a proper understanding of the issue at hand. There is no conscience right to demand that others subsidize one’s birth control methods. And contrary to his assertions, RFRA does “elevate” religious claims when it forces the government to justify itself under strict scrutiny in free exercise matters. It does not merely “balance” free exercise claims against whatever law the government puts in place.

In an odd conclusion to his piece, Mr. Epps attempts to cite the Gospel of Luke for support of his anti-religious position. The parable he cites is actually in the Gospel of Matthew. But more importantly, the passage does not even support his argument. Examining the story in its full context, the laborers were actually complaining to their master about the size of their respective paychecks. The generous master (God) says he has the right to do what he wants with his own resources. This parable hardly supports the notion that Hobby Lobby’s employees should coerce it to subsidize their wages (which for beginning employees starts at 90% above the federal minimum wage) with birth control.

Hobby Lobby is not seeking to “dictate” anything to its employees. Hobby Lobby is not preventing its employees from using birth control methods. Hobby Lobby is merely saying: “Don’t force me to cover them!” The Greens are not trying to control employee choices; they simply object to being forced to subsidize acts that go against their religion.

In the end, the members of the Green family are merely seeking to exercise their religion as they run their company. Such a demand is not beyond the bounds of reasonable free exercise interpretation. RFRA makes that secure. The Court has supported even bolder free exercise claims in the past. It should support the Greens’ rather modest claim in this case.

Last month, FRC filed an amicus brief with the Supreme Court in the Hobby Lobby case that can be read here.

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