Women held placards proclaiming “Bosses out of My Bedroom” to protest last week’s Supreme Court decision in the Hobby Lobby case, which permits privately-held corporations to exclude coverage for contraception from health insurance coverage on religious grounds. In the media, opponents of the decision saw the issue as corporate owners imposing their religious beliefs on all the employees in Hobby Lobby’s nearly 600 stores. The decision has been widely condemned by feminist and other progressive groups, who smell a theocratic agenda that represents discrimination against women (Viagra and vasectomies are covered by insurance), a threat to women’s health, and a continuation of efforts to control female sexuality. The Court itself was divided along gender lines for this and the follow up Wheaton College decision regarding exemptions for religious non-profit organizations, in which the three female judges issued a sharp dissent. For women, reproductive freedom and economic independence are closely intertwined, as Justice Ginsburg noted in her dissent: “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”
But the Hobby Lobby (HL) case is not just about corporate control over women’s work and health; it holds broader significance for corporate governance. The decision severely undermines those who seek to use corporate social responsibility (CSR) to hold business accountable and to channel the vast financial, technological, and organizational resources of business to advance social goals. The heart of the HL case turned on the technical question of whether a for-profit corporation, as a legal person, has the same rights as an individual to exercise religion under the 1993 Religious Freedom Restoration Act (RFRA). On the face of it, the idea of a corporation having a religion is somewhat bizarre. After all, we don’t see corporations being baptized or singing at a Bar Mitzvah ceremony. But if a corporation, as a person, does have values or religion, whose are they? A small group of owners, or the wider community?