In the wake of Burwell v. Hobby Lobby Stores, Inc. et al., 573 U.S. _____ (2014), a number of aspects of the decision have meant that lower courts have had to rethink what they had decided in other cases. One of those aspects is that it is possible for a company to do business with objectives other than making a profit, and that it was perfectly reasonable for a C Corp like Hobby Lobby to be incorporated for purposes of doing business in accordance with the principles of its Christian faith. We noted in a previous article that it was certainly similarly possible for Hebrew National to be in business to make money providing a product that comports with the religious dietary regulations of Judaism. This week we have another example. If you have not heard of them, please meet Eden Foods.
Eden is identified as the oldest independent organic food producer, having been incorporated as a non-profit in 1969 and shifted to being a for-profit corporation in 1970. It is also said to be the largest supplier of organic dry grocery items. Its line of foods has won many awards for quality and safety. Most of it is certified kosher, much of it is recommended as gluten-free, and all products except their katsuo (Japanese fish flakes) are vegan. It is otherwise a small closely-held corporation, with fewer than two hundred employees total. Owner Michael Potter is known for his progressivist views: back to basics farm food, sustainability, transparency.
We thus have a for-profit corporation which was incorporated with a goal not of making a profit but of supporting a philosophy, one of making wholesome organic food available to consumers at a high quality and a reasonable price. This is not a company created to capitalize on the organic food craze, not a small branch of a major food manufacturer which in other divisions produces soda and beer and junk food. It is part of their very conception that they are dedicated to a goal, an ethical standard, a belief in the importance of eating wholesome naturally-grown foods, of encouraging others to do so, of providing these foods, and of doing so in a manner that is completely transparent to the end consumer who will have confidence in the contents and handling of every product they make. It was never about the money; the money, and the for profit corporate form, were tools to make the vision possible.
However, the owner's ethical beliefs extend beyond this. He opposes the Affordable Care Act's requirement that he pay for contraceptives for his employees through their health care plan. He maintains that this is not merely because he is a Roman Catholic (which he is, and there is something of that theology in his objections) as much as that he does not believe the federal government should be able to force him to finance that which he finds morally repugnant. And the victory of Hobby Lobby suggests that he is correct.
There has been, once again, a lot of misinformed screaming about this. A decision in favor of Eden as the law now stands in Hobby Lobby would not mean that its employees would not have contraceptive coverage; it would mean that they would receive free contraceptives from the same insurer through a separate program. Nor can there be any suggestion that Eden is trying to save money by cutting its payments, as we noted in Hobby Lobby and contraceptive costs not long ago. What we have is an employer with a moral objection to birth control, protected by his First Amendment religious freedom, wanting to avoid being responsible for enabling the crimes of others.
We have compared this to gun ownership before, and it may be the comparison is apt again. Under Griswold v. Connecticut, Americans have a constitutional right, indirectly, to obtain and use birth control. Under the Second Amendment to the Constitution, Americans have a constitutional right to obtain and use guns and ammunition. At what point did either of these rights lead to the conclusion that employers had to buy these, either birth control or ammunition, for employees? No one is complaining that their rights have been impinged because the law does not insist that someone give them free guns, despite the fact that we have the right to own them--a right not merely specified in the Constitution but very nearly made an individual responsibility, that citizens must own guns and the government may not prevent them from doing so. Yet somehow the less-well-supported right to have contraceptives--a right extrapolated through several steps from protections against search and seizure through an inferred right to privacy to the conclusion that individual sexual decisions are not generally government matters--has become a right to have someone give them to us. You can be quite certain that if a law were proposed requiring employers to fund the purchase of guns and ammunition for their employees, most of the same voices right now condemning those employers who do not want to pay for employee contraception would be condemning the proposed new law. Yet every argument that can be raised favoring forcing employers to pay for contraception is at least equally valid for forcing them to pay for ammunition. The only place it differs is in that people who favor contraception think that their preferences in the matter should trump the opinions of everyone else.
I do not share Eden's opinion concerning contraception; it is too narrow in my view. However, I do think that the old legal axiom that your right to swing your fist ends before it touches my nose applies here. Eden employees who wish it will have their contraceptives under the alternate system; Eden will protect its ethical principles--all of its ethical principles; the amount of money anyone pays will not be appreciably different. The only people who will not be happy are those for whom identifying and harassing conservatives falls somewhere between sport and witch hunt.