How States Can Limit the Impact of Hobby Lobby

I offer the following “Op-Ed” for BBers to consider, comment and critique;

The recent decision by the Supreme Court that allows businesses to be exempt from parts of the ACA based on their owners’ religious beliefs has left a lot of people wondering what the implications are for the future; will the businesses be allowed to restrict other employee choices? What other laws might they be exempt from? What are considered legitimate religious practices and what are not? How can we know which businesses are legitimately formed around strongly held religious beliefs, and which are just using the law to exempt themselves from onerous regulation?

Addressing these questions through national legislation (e.g. amending the RFRA) in the current political environment, seems impossible. But one state-based solution does present itself; the establishment of a new kind of business registration specifically for closely held companies intending to run themselves according to specific religious principles. Similar to the benefit corporation laws passed by almost 30 states, the “R-Corp” standard could reduce the confusion around some of these issues, and ultimately lead to a higher standard of ethical business, as well as bringing full transparency around the religious practices of the business to employees, customers and business partners.

So what would this R-Corp look like? First, it would be limited to closely held businesses as defined by a state law and in alignment with the Hobby Lobby decision. Second, it would require that companies declare their intent to do business according to religious principles from the beginning, and set-out which religious beliefs they adhere to as part of their by-laws or business charter. Finally, it would include a requirement that the business submit to a third party faith-based nonprofit auditor of its business practices to ensure they are complying with their charter.

By setting up a system for R-Corp registrations, people interacting with those businesses would be better able to know how the business operates with regards to their beliefs; some customers or employees may be drawn to businesses that adhere to their own beliefs, others may choose not to do business with them because of those ideas. But transparency is the goal, so that everyone has a choice about whether and how they do business with a company that is based around religious practices. From the standpoint of enforcement, an R-Corp statute would give states a better understanding of who is organized under religious principles and distinguish them from those who might just claim an exemption as a way to avoid complying with the law. Finally, an R-Corp standard would ensure that businesses that claim a religious exemption adhere not just those religious practices that are convenient, but all applicable practices, and thereby become more ethical overall.


What happens if the R-Corp is caught, during audit time, investing in something they’re ‘deeply held religious beliefs’ are against? This is the case with the hypocrites who own HL.

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Excellent. Ethical religious businesses (and there are many) should be all for this solution.


My suggestion is that any corporation that is shown through audit to be acting in a manner inconsistent with the stated religious beliefs of the owner would have their R-Corp status revoked, and with it all the legal exemptions (e.g. not covering birth control) that they claim.


This is a consequence I was hoping you’d propose. :slight_smile: I’d make it retroactive, too, 'cause I really, really do not tolerate hypocrisy well.


Some questions - who gets to decide what is religious belief and what isn’t? And doesn’t this just further deepen the culture of alienation that some Christians have embraced as of late? I’m not sure that’s constructive in the long run. And doesn’t this open the door for other kinds of niche closely held corporations to exercise their beliefs through their business practices? Aren’t we running the risk of resegregating society along different lines?

There’s definitely a question of what a “firmly held religious belief” is, and that’s a problem that may not have an easy answer. In the end, it’s probably the courts that would decide what is a religious practice and what’s not (there’s a great deal of case law on this already). But the point of an R-Corp isn’t to define it in the law, but to require that if people are going to assert that their company is being run under religious principles, they should are obligated to declare it.

As for this “alienation” and “resegregation” first let me say that I think that’s a bit of a red herring. People who assert their exemption from a law are the ones who are putting themselves in that category, and the onus in on them if others object to their business practices and choose not to do business with them. It would be naive to think that a business could demand to be treated differently under the law, but expect not subject to scrutiny or consequences.


This is getting too complicated. I propose amending the RFRA to specifically apply only to natural humans.


…who have experienced birth.

If that were an option, I’d be for it. But I don’t really think we will be able to get that through this Congress, or any in the foreseeable future, which is why I think a state-based solution would be useful in limiting the impact of the ruling through regulation, transparency and audit.


Have to be very careful with that definition.


Hey, I didn’t say the mother had to experience birth!!

Untrue. Flatly untrue!
It isn’t a red herring at all.

If part of the law requires that you observe a religion to take benefit, then any party who doesn’t observe religion at all is going to be omitted from being able to take advantage of that law — even if they do object to certain forms of taxation on moral grounds. Morality doesn’t equal religion, and that’s the problem with the law you posit.

For example: An atheistic company would not be able to claim that they “morally” oppose war, and therefore morally oppose the taxes applied for the military. Why not? Because there’s no moral “standard” that someone could refer to under your law’s guidelines. A company made up of people with varied religions might have the same exact problem, because different religions have different views on all kinds of subjects. Your law only applies to businesses made up of uniformly religious people, and that excludes many others.

So don’t try to tell me that I won’t be part of a class that will be alienated by this law. As an atheist, I most certainly would be.


I think we are not syncing about the red herring - either I misunderstood your original comment or you misunderstood my response.

Moving beyond that, you do make a good point about the R-Corp idea as written above only applying to companies organized around religious principles, but that is because, as I understand it, the Hobby Lobby ruling only applies to companies whose leaders have strongly held religious beliefs. That’s the law, and I’m sorry to say that you are already alienated. That said, there’s no reason the R-Corp couldn’t be expanded to include moral beliefs, with some non-religious ethical society as the auditor. At least for now though, the Supreme Court wouldn’t likely recognize that aspect.

From your other comments though, I think there may be some confusion about the Hobby Lobby decision and what the R-Corp idea is meant to address. Hobby Lobby does not refer to taxation, and it does not apply to companies made up of people of different religions (or atheists). It applies to companies that are closely held (typically family-owned) and which are run in alignment with the owners’ religious beliefs. The employees’ beliefs (or lack thereof) are not part of the consideration.

The fundamental problem I am hoping to address with the idea of an R-Corp is that companies that claim to be run in alignment with religious principles actually be required to declare what those principles are, and apply those principles to all parts of their business, not selectively as it may be convenient. That may be anti-abortion for some Christians, and it might be anti-gun for atheistic pacifists. But either way, both should be required to state what they believe and practice what they preach.

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Yes, the Hobby Lobby ruling does already exclude me should I start a closely held corp. That alone should make the law illegal, but a failure to practice religion isn’t being protected equally in this country.

We don’t need an expansion of this law. The Hobby Lobby ruling (which was blatantly wrong for multiple reasons based on the law they tried to apply) needs simply to be revoked. We don’t need an expansion of it, or any other examples like it.

There is no way to logistically watch people’s morality.

I think you completely misunderstand my point; I am not aiming to expand Hobby Lobby, I’m trying to set limits. As I’ve said above, I think getting it overturned or amending the RFRA would be a much better solution, but that’s not going to happen. Ever. So what can we do to limit the implications of it, especially on a state level that doesn’t require getting House and Senate approval?

I think you’re trying to make me out to be the enemy here, but we are very much on the same side.

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Actually, I think the RFRA can and will be amended the first time a non-Christian, but still deist, closely-held corporation attempts to make use of the SCOTUS ruling.


I’m not trying to make you out to be the enemy at all.

What I’m saying is that any law on this topic won’t be enforceable (until after the fact), and probably won’t be something that could be passed in our current culture without being somehow focused on religion. The Hobby Lobby ruling specifically dealt with religion only.

As I already wrote - the correct way to deal with the implications of the Hobby Lobby ruling is for SCOTUS to recognize that they broke the Civil Rights Amendment - they’ve excluded an entire group who might have moral reasons for objection to the ACA outside of religion from ever applying the same standard and using that law. Making further laws won’t clean it up.

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The ACLU just needs to find a Quaker owned business that prohibits it’s employees from carrying guns…are there Quakers in Florida?


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