A job is not a hobby: the judicial revival of corporate paternalism and its problematic implications.

• Author: Strine, Leo E., Jr.

1. INTRODUCTION II. OUR "RHYMING" PAST A. The American Dream of Economic Autonomy vs. the American Reality of Employer Dominance 1. The Long Struggle against So-Called "Wage Slavery" 2. A Counterweight to Corporate Power Emerges 3. Ford's Feudal System 4. "Necessitous Men are Not Free Men" B. Opting Out, v.1: The History of Religious Objections to the Welfare State C. The Movement for Minimum Essential Guarantees of Economic Security, Dignity, and Freedom Includes Access to Healthcare as a Fundamental Right D. An Accident of History and Tax Law: The American System of Employer-Based Health Insurance III. OPTING OUT, V.2: THE HOBBY LOBBY DECISION A. The Least Restrictive Means Is Taxing the Rest of Us 1. Smith and the History of the Religious Freedom Restoration Act 2. Corporate Personhood Under RFRA 3. The Majority's Application of the RFRA Balancing Test B. The Broader Implications of Hobby Lobby and Its Effects on Worker Freedom and Society's Ability to Extend the Social Safety Net C. Are We Doomed to Repeat the Past? 1. Good Jobs Are Hard to Find, or, in Other Words, Escaping Hobby Lobby Is Not so Easy 2. The Decision Has Especially Worrisome Effects on Women's Labor--and Women's Bodies i. Self-Described "Corporate Religion" Goes Beyond Hobby Lobby--and Thus, Beyond Hobby Lobby 4. Hobby Lobby's Authorization of Incursions on Workers' Freedom Comes on Top of Other Employer Intrusions 5. Protecting the Rights of the Few (Employers) over the Many (Workers) D. The Implications of Hobby Lobby for Corporate Law IV. CONCLUSION I. INTRODUCTION

   A job is not a hobby. That is the title of this Article for more than one reason. The first, of course, is because this Article addresses the Supreme Court's decision in Burwell v. Hobby Lobby (1) But more importantly, it reflects a fundamental truth for most workers in a capitalist economy. Few of us work solely because our jobs fulfill all of our emotional, aesthetic, spiritual, avocational, or hedonic needs. Most of us work because we need to feed, house, and otherwise provide for ourselves and our families.

   Precisely because most of us must take jobs, we often spend a majority of our waking hours in a domain where the rules are set by others. What to wear, how much we can talk to our colleagues--much less reach out to family members--and what we can say, what we can use the computer to do, and even when we can use the bathroom are all influenced by employers. of course, long before capitalism emerged, there were periods of human history--such as the feudal era--when workers faced even more invasive controls and there was really no limit to the employer's rule, at work or at home.

   But it is often forgotten that when the united States made the transition from subsistence farming to industrial capitalism, some feudal practices were revived. As most Americans stopped being small farmers and artisans and began more and more to earn their keep as the employees of large business enterprises, a new strain of feudalism returned in the form of something that might charitably be called "corporate paternalism." Motivated by many factors, employers not only controlled employee behavior during the work days--which were long--and the work week--ditto--but also attempted to control what their workers did with their scarce free time and their scarce wages. Many of these motivations were explicitly phrased in religious or moral terms.

   For example, some employers paid their workers not in cash, but in scrip that could only be used in company stores, in part to prevent employees from using their pay to buy liquor. Some employers conditioned employment or higher wages on employees following the employers' moral code, including church attendance on Sundays. The employees' religious beliefs, or how they wanted to spend their own money, were subordinate.

   Eventually, however, as more Americans had to work for others to support themselves, labor advocates argued that an employee's wage was his own, earned by his sweat, and the worker should be able to spend it in whatever lawful way he chose. Paying in scrip, tokens, "dope checks," or coupons was made illegal, first at the state, and later at the federal level, so that workers had to be paid regularly in unrestricted cash. At the same time, labor advocates promoted the idea that a job should come with a bottom line guarantee of economic support, through protections such as a minimum wage, Social Security to address the needs of the disabled and the elderly, unemployment insurance, and the like. These programs were deemed entitlements that automatically came with a job; that is, every worker was entitled to receive these benefits, regardless of a particular employer's objections.

   For example, when an employer refused to pay into Social Security on the grounds that doing so violated his Amish faith, the united States Supreme court found that any burden on the employer was too slight to justify denying workers the economic protections deemed necessary by society. (2) In another case, in which the Supreme Court determined that one employee's right to take off work on his Sabbath burdened other employees, the Court quoted Judge Learned Hand: "The First Amendment ... gives no one the right to insist that in pursuit of their own interests others must conform their conduct to his own religious necessities." (3)

   From at least the 19th century, worker advocates have contended that access to adequate medical care is part of the minimum essential package necessary for human dignity and fulfillment. (4) Although the United States stumbled in this direction far more slowly than other industrialized nations, (5) the trajectory was clear. The Social Security system began in the 1930s as a way to alleviate poverty among the elderly. (6) In 1965, the program expanded to include health insurance coverage under Medicare, recognizing that the "full value of Social Security would not be realized unless provision[s] were made to deal with the problem of costs of illnesses among our older citizens," in President Lyndon Johnson's words. (7) At the same time, the government established Medicaid to provide health coverage for some of those living in poverty, especially children. (8) Eventually, Medicaid coverage was extended to children above the poverty line, (9) and drug coverage was added to Medicare. (10) And with the Affordable Care Act (ACA), most American workers were for the first time provided with a guarantee that a job would come with access not just to a minimum cash wage, but also, to quote the statute, a "minimum essential" guarantee of "quality, affordable health care." (11)

   But in Burwell v. Hobby Lobby, the United States Supreme Court determined that an employer could, for religious reasons, deny its employees the full range of medical options that the federal government set as the ACA's "minimum essential coverage." (12) The Hobby Lobby majority made clear that, at least for religious principles they appeared to be familiar with, they would consider any stated religious objection by an employer to be compelling. And seemingly no government interest could be sufficient to overcome that objection, because the government could simply require the rest of us to pay what the employer refused. Thus, rather than conceiving of the minimum essential health care coverage as the employee's, Hobby Lobby construed it as the employer's, with the employer having the right to decide for its employees what health care options it would cover. In other words, the worker's right--as a minimum benefit of employment in a secular society--to make choices about her own medical needs is trumped by the employer's right to ensure that any funds from its coffers are not used in ways that the employer finds religiously objectionable. As the Supreme Court noted in a 1943 case involving religious liberty, part of its job is to "determine where the rights of one end and those of another begin." (13) In Hobby Lobby, the Court determined that the rights of the employer extend beyond the workplace and into the employee's doctor's office.

   This reasoning is difficult to confine. Hobby Lobby's only objection was that it did not want any of its money to fund four specific contraceptives that were required as part of the ACA's minimum essential coverage. Of course, the company itself did not have to pay for the contraceptives; instead, it was only required to fund an insurance pool that would cover those contraceptives if workers chose to use them. By that same reasoning, an employer could object to the myriad medical interventions that violate some religious faith--all contraceptives, blood transfusions, devices made with porcine or bovine collagen, and so on. And that same logic extends beyond health insurance: under Hobby Lobby, an employer could condition the payment of cash wages on an employee's binding agreement not to spend them in ways that the employer finds religiously objectionable, including on liquor, hot beverages, tobacco, condoms, pork chops, or crab cakes, to name just a few examples of products that violate some religion's strictures.

   This implication of Hobby Lobby is particularly worrisome because it coincides with both an increase in other limits on the freedom of low-wage workers and a disturbing growth in economic inequality. The decline of labor unions has weakened one potential counterweight to employer power. Employers are limiting the privacy of workers through technology--such as workplace phone and computer monitoring, cameras, or drug and nicotine testing--for bottom line, business reasons. With recent structural changes in the labor market, Americans are also less able to find new employment that allows them to maintain a middle-class standard of living, and therefore more likely to keep the jobs they have. Worries about workers being able to support their own families are most acute when discussing contraceptive use, which was at issue in Hobby...