Human Capital Briefs

The Hobby Lobby Decision: How Business Got Here

October 16, 2014

Monday’s Hobby Lobby decision by the United States Supreme Court marks the first time the government has recognized that some for-profit corporations have religious rights. The ruling is based not on the First Amendment of the Constitution, but on a 1993 statute. Usually, Supreme Court decisions clarify matters of law for the lower courts; but in this case, the mess of tea-leaves in the ruling has thrown commentators into a confused frenzy.

Experts on religion and the workplace, too, are unsure what this means for businesses and the broader business climate. “We don’t know where this will take us,” admits Diana Eck, Professor of Comparative Religion at Harvard and Director of The Pluralism Project. “Time will tell,” says David Miller, Director of Princeton University’s Faith & Work Initiative.

But there are several larger trends that may indicate the lay of the land. One is the growing treatment of corporations as organisms that have rights and points of view. As Mark Tushnett of Harvard Law School said in an interview, “Corporations have a lot of constitutional rights as surrogates for individuals…Yes, [the Hobby Lobby decision] moves the line a little, but the line was already pretty far in the direction of corporate rights anyway.”

Another development that seems to have led, at least in part, to this moment is the bring-your-whole-self-to-work movement. These calls for authenticity have not explicitly focused on religion, but it is inevitable that if you are a religious person, your faith is closely tied to your sense of self. As Wharton ethics and legal studies professor Amy Sepinwall put it, “A state that takes seriously its obligations to respect religious free exercise has to understand that individuals are not going to want to leave their religious convictions at the corporate office door.”

A third major trend is the push for a more moral form of capitalism. Whether you call it creating shared value, conscious capitalism, the triple bottom line, social business, or something else, it has mostly focused on secular ethics. But it is easy to see that believers’ moral codes would be deeply informed by their faith. The question, as Eck put it to me, is: “At what point does an ethical purpose get to have an exemption from national laws?”

It seems likely that we’ll be wrestling with more of these questions in the future. I asked Eck if there had been a shift in how Americans conceive of religion that had helped lead to this moment.

“On the Christian right, the articulation of faith is much more public than ever before. But there are also other public advocacy groups — Christian, Jewish, Muslim and interfaith — concerned with a range of public affairs, from domestic poverty to international conflict. At the same time, for many younger people, faith is no longer primarily about ‘belonging,’ that is, belonging to a community that attends the same worship services or observes the same holidays. We also have seen the rise of a religiousness, a spirituality, of ‘seeking,’ that is much more individualistic.”

If that trend towards every-believer-for-himself continues, it may make it more difficult for courts to adjudicate similar cases — something the Hobby Lobby decision seems destined to produce. Says Princeton’s Miller, “Surely it will open the door to future requests by other companies who have a religious identity of some sort.” Wharton’s Sepinwall sees future courts trying to gauge the seriousness of a company owner’s religious beliefs, something the lawyers and justices in the Hobby Lobby case purposely steered clear of.  “You would want to look to various pieces of evidence that support the company’s asserted religious conviction…that the company’s stores are closed on Sundays, for example.”

That sounds like an awful lot of work for the lower courts — which may mean that regardless of who actually won Burwell vs. Hobby Lobby, the real victory will go to the lawyers.

 

This blog first appeared on Harvard Business Review on 07/03/2014.

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