SupremeCourtSeveral of the mutual funds in Hobby Lobby’s retirement plan have holdings in companies that manufacture the specific drugs and devices that the Green family was fighting to keep out of Hobby Lobby’s health care system plan, namely the emergency contraceptive pills Plan B and Ella, and copper and hormonal intrauterine devices.


Information on Hobby Lobby’s 401(k) plan is included in its 2013 annual report to the Department of Labor. These records contain a list, dated December 31, 2012, of 24 funds that were included in its employer-sponsored retirement plan. MorningStar, an investment research firm, provided Mother Jones with the names of the companies in nine of those funds as of December 31, 2012. Each fund’s assortment consists of hundreds of different holdings. All nine funds consisting of $73 million in assets, contained holdings that are inconsistent with the Greens’ religious principles.


In their Supreme Court complaint, the Greens detailed the many ways in which they avoid entanglements with objectionable companies. Hobby Lobby stores do not sell shot glasses, for example, and the Greens decline requests from beer distributors to back-haul beer on Hobby Lobby trucks.


Comparable options are available for companies that want to follow faith-based investing. To avoid supporting companies that manufacture abortion drugs or products such as alcohol or pornography, religious investors can consider a litany of mutual funds that do not include stocks that religious people might consider objectionable. For example, the Timothy Plan and the Ave Maria Fund screen companies that manufacture abortion drugs, support Planned Parenthood, or engage in embryonic stem cell research. Dan Hardt, a Kentucky financial planner who specializes in faith-based investing, says the performances of these funds are about the same as if they had not been screened. Apparently Hobby Lobby’s managers either were not aware of these options or chose to ignore them. This is a statement by Hobby Lobby in support of its appeal to the court:


We’re Christians, and we run our business on Christian principles. I’ve always said that the first two goals of our business are (1) to run our business in harmony with God’s laws, and (2) to focus on people more than money. And that’s what we’ve tried to do. […] We believe that it is by God’s grace that Hobby Lobby has endured, and he has blessed us and our employees. […] But now, our government threatens to change all of that. A new government health care mandate says that our family business MUST provide what I believe are abortion-causing drugs as part of our health insurance. Being Christians, we don’t pay for drugs that might cause abortions, which means that we don’t cover emergency contraception, the morning-after pill or the week-after pill. We believe doing so might end a life after the moment of conception, something that is contrary to our most important beliefs. It goes against the Biblical principles on which we have run this company since day one.


The Greens have made it clear that any abortion and certain contraceptives are unacceptable, yet as previously stated, the company’s 401(k) plan has millions of dollars invested in funds that own companies that make birth control methods including Plan B, the “morning after” pill.


My concern in writing this article is not to focus just on Hobby Lobby’s management of its operations, its dealings with China, or its investments in companies that make the kind of birth control devices that gave cause to their court appeal. My uneasiness is on the effect of the Court’s partisan decision on the overall free enterprise system.


Justice Ruth Bader Ginsburg penned a powerful dissent to the Court’s majority ruling that the government cannot require certain employers to provide insurance coverage for methods of birth control and emergency contraception that conflict with their religious beliefs. Ginsburg wrote that her five male colleagues, “in a decision of startling breadth,” would allow corporations to opt out of almost any law that they find “incompatible with their sincerely held religious beliefs.”
Here are seven more key quotes from Ginsburg’s dissent:


• “The exemption sought by Hobby Lobby and Conestoga would…deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage”

• “Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community.”

• “Any decision to use contraceptives made by a woman covered under Hobby Lobby’s or Conestoga’s plan will not be propelled by the Government, it will be the woman’s autonomous choice, informed by the physician she consults.”

• “It bears note in this regard that the cost of an IUD is nearly equivalent to a month’s full-time pay for workers earning the minimum wage.”

• “Would the exemption…extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations[?]…Not much help there for the lower courts bound by today’s decision.”

• “Approving some religious claims while deeming others unworthy of accommodation could be ‘perceived as favoring one religion over another,’ the very ‘risk the [Constitution’s] Establishment Clause was designed to preclude.”

• “The court, I fear, has ventured into a minefield.”

The only kind of proposition that can be supported by a belief, sincerely held or otherwise, is a claim of value, such as “abortion is immoral.” The owners of Hobby Lobby did make such a claim, and the Supreme Court ruled that it was entitled to respect under the Religious Freedom Restoration Act.

However, Hobby Lobby also made a claim of fact that certain kinds of contraception caused abortions. And a religious belief, no matter how sincere, merely cannot be used to support a claim of fact. Only facts can do that, and Hobby Lobby was not required to meet even a minimal burden of proof on those facts.

By allowing the owners of Hobby Lobby to use a claim of “sincere religious belief” to support a claim of scientific fact, the court has opened a door that could lead to significant problems. It could possibly pave the way for a whole host of value-supported fact claims about things like evolution, homosexuality, climate change, public education, and a lot more.
Can a business owner, for example, refuse to pay property taxes that might be used to teach evolution in a public school? Does a “sincere belief” in the false and satanic nature of evolution entitle one to refuse to support its teaching?
“But Hobby Lobby and Conestoga Wood only object to four forms of contraception.” That is true. As the Guttmacher Institute’s Adam Sonfield points out, in their formal complaints, they also object to counseling for those forms for contraception. No one knows what that will mean in practice. But there are dozens of other plaintiffs in cases pending before federal courts who object to all birth control. For example, the owners of Freshway Foods object to all forms of birth control coverage. They already got a preliminary injunction at the D.C. Federal Circuit, where Judge Janice Rogers Brown described the coverage requirement as “the compelled subsidization of a woman’s procreative practices.”
I believe that Judge Ginsburg got it right when she said that the Supreme Court’s Hobby Lobby decision is going to create “havoc.” And as the repercussions increase, so do the questions in areas that range from economics and taxation to theology and philosophy.


The Court’s decision has created an understandable firestorm of confusion, since it does not define “closely-held corporation,” and it will undoubtedly raise many legal questions and issues in the very near future, but that’s just my take.

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