A liberal’s second thoughts about Hobby Lobby

July 12, 2014

In the past couple of weeks, a handful of what might be called politically liberal or progressive scholars have (sort of) defended the Supreme Court’s decision in Hobby Lobby.  See here and here.  Now my friend and colleague Brett McDonnell, a progressive corporate-law scholar, is stirring up interest with a liberal defense of the decision.  His defense is “liberal” both in the modern progressive sense and in the classical libertarian sense.

First, he takes on the common objection that for-profit corporations can’t meaningfully exercise religious freedom. Corporations are owned and operated by individuals who may have strong religious beliefs. And protecting these individuals’ freedom when they band together in the corporate form is consonant with progressive legal values:

In my world, activists and liberal professors (like me) are constantly asserting that corporations can and should care about more than just shareholder profit. We sing the praises of corporate social responsibility.

Well, Hobby Lobby is a socially responsible corporation, judged by the deep religious beliefs of its owners. The court decisively rejects the notion that the sole purpose of a for-profit corporation is to make money for its shareholders. This fits perfectly with the expansive view of corporate purpose that liberal proponents of social responsibility usually advocate — except, apparently, when talking about this case.

Second, on the question whether the contraceptives-coverage mandate unnecessarily intruded on religious freedom, he writes: “The court plausibly found that a modest extension of an already-existing accommodation for some religious organizations to corporations like Hobby Lobby would avoid burdening religious beliefs without hurting the company’s employees.”

But McDonnell does not simply defend the Court’s interpretation of the Religious Freedom Restoration Act. He also supports the policy judgment about pluralism embodied in the Act:

RFRA reflects the core liberal values of toleration and respect for diverse viewpoints. In a world with a litter of laws and a rainbow of religions, even well-intentioned laws sometimes seriously burden some believers. If we can ease that burden by modifying the law while doing little damage to the law’s legitimate purpose, we make it easier for diverse groups to coexist. . . .

What we have in Hobby Lobby is an opinion grounded in corporate social responsibility and respect for diverse points of view. The Supreme Court’s five conservatives have delivered a profoundly liberal opinion. Too bad so many liberals don’t seem to realize it.

Read the whole thing here.

Dale Carpenter is the Distinguished University Teaching Professor and Earl R. Larson Professor of Civil Rights & Civil Liberties Law at the University of Minnesota Law School. He teaches and writes in the areas of constitutional law; the freedoms of speech, association, and religion; and sexual orientation and the law.
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