Caring for the Body and the Soul: Small Businesses Post-Hobby Lobby and HHS Contraceptive Rule

Health Matrix: The Journal of LawMedicine Volume 27 | Issue 1 2017 Caring for the Body and the Soul: Small Businesses Post-Hobby Lobby and HHS Contraceptive Rule James Lesinski Follow this and additional works at: https://scholarlycommons.law.case.edu/healthmatrix Part of the Health Law and Policy Commons Recommended Citation James Lesinski, Caring for the Body and the Soul: Small Businesses Post-Hobby Lobby and HHS Contraceptive Rule, 27 Health Matrix 495 (2017) Available at: https://scholarlycommons.law.case.edu/healthmatrix/vol27/iss1/17 This Note is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Health Matrix: The Journal of Law-Medicine by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. Health Matrix · Volume 27 · 2017 Caring for the Body and the Soul: Small Businesses Post-Hobby Lobby and HHS Contraceptive Rule James Lesinski † Contents Introduction ................................................................................................................ 495 I. How did we get Here: An Examination of Corporate Personhood .................... 499 A. The Origins of Corporate Personhood ......................................................... 500 B. The Current State of Corporate Personhood ............................................... 502 C. Hobby Lobby and the Religious Freedom Restoration Act .......................... 503 II. Why does it Matter: Examining the HHS Rule and its Impact ........................... 505 A. What Does the HHS Rule Actually Say? ....................................................... 506 B. What are the Rule’s Weaknesses? .............................................................. 507 1. The rule is over-inclusive ...................................................................... 507 2. The ability of families to aggregate shares ........................................... 508 3. The rule as applied to large companies may still violate the RFRA ....... 509 4. The rule may facilitate increased litigation among the owners of closely-held corporations .................................................................... 511 5. There is no mechanism for verifying the existence of sincerely held religious beliefs ................................................................................... 512 C. Illustrative Application to Real Companies.................................................. 513 1. Hobby Lobby Stores, Inc. ...................................................................... 514 2. The Hearst Corporation ........................................................................ 515 III. How to Fix the HHS rule: Putting Forth Solutions .............................................. 516 A. Little Sisters of the Poor .............................................................................. 517 B. A National Contraceptive Mandate Coverage Program .............................. 520 C. Public-Benefit Corporations ........................................................................ 521 Conclusion .................................................................................................................. 523 Introduction Since 1990, the institution of religion in the United States has undergone a fundamental transformation. 1 During the 1990s, traditional, prominent Protestant denominations of Christianity such as Lutheranism, † J.D. Candidate 2017, Case Western Reserve University School of Law. The author would like to thank his fellow editors and executive board members of Health Matrix: Journal of Law-Medicine for their work and patience. Any remaining errors are the author’s alone. 1. Patrick Allitt, Religion and Politics Since 1945, THE CONCISE ENCYCLOPEDIA OF AMERICAN POLITICAL HISTORY 688 (Michael Kazin, Rebecca Edwards & Adam Rothman eds., 2011). 495 Health Matrix · Volume 27 · 2017 Caring for the Body and the Soul: Small Businesses Post-Hobby Lobby and HHS Contraceptive Rule Presbyterianism, and Episcopalianism saw marked decreases in the sizes of their congregations and, in turn, their political clout. 2 As these Protestant congregations shrank, alternative congregations grew. 3 Assemblies of God, Southern Baptists, and independent (some say mega 4) churches are among the sects of Christianity that saw rapid growth during this period. 5 As the sizes of these congregations increased, so did their political clout, 6 and, perhaps due to these denominations’ more rhapsodic nature, the politicization of religion also increased. 7 For instance, in the 2000s, religion played a cognizable role in presidential contests. 8 Though religion may be playing a role in politics, the United States is still by and large a secular country, which is a function of both public opinion and law. Churches enjoy tax-exempt status as a function of their organization as non-profits. If a church explicitly endorses or opposes a candidate, it may lose that tax-exempt status, potentially inhibiting or foreclosing its ability to function. 9 In the aggregate, religion in America, or at least its influence, appears to be on the decline. 10 However, among those who are religious, Americans are evenly divided on whether churches should directly weigh-in on political issues. 11 This creates a scenario in which small but increasingly fervent populations seek to express their views, leading to outsized disputes as faith and secular society clash. 2. Id. 3. Id. 4. Megachurch Definition, HARTFORD INST. FOR RELIGION RESEARCH (2015), available at http://hirr.hartsem.edu/megachurch/definition.html. 5. Allitt, supra note 1, at 688. 6. Id. 7. Religious Polarization is Part of ‘American Grace,’ NPR (Oct. 2, 2010), http://www.npr.org/templates/story/story.php?storyId=130264527 (“‘How frequently you attend church, or interestingly, how frequently you say Grace . . . measures like that, how religious you are, have a pretty strong correlation with how you vote and which party you prefer,’ Campbell says. Not too long ago, such a link between religiosity and political belief was almost unheard of.”). 8. See Joseph Carroll & Frank Newport, Reasons Why People are Voting for Bush or Kerry, GALLUP (Sept. 21, 2004), http://www.gallup.com/poll/13096/reasons-whypeople-voting-bush-kerry.aspx. (22% of female respondents identified moral values/religion as why they would vote for Pres. George W. Bush. 10% of male respondents identified more values/religion as why they would vote for Pres. George W. Bush. Figures for then-Sen. John Kerry were < 0.5% and 1% respectively.) 9. Preach to Me: More Americans Want their Church Involved in Politics, ECONOMIST (Oct. 25, 2015), http://www.economist.com/news/united-states/21627672more-americans-want-their-churches-involved-politics-preach-me. 10. Id. 11. Id. 496 Health Matrix · Volume 27 · 2017 Caring for t (...truncated)