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BC Experts: Supreme Court and the Hobby Lobby Case

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PROFESSOR KENT GREENFIELD, BOSTON COLLEGE LAW SCHOOL
Office: 617-552-3167; cell: 781-454-8104;
email: kent.greenfield@bc.edu

Professor Greenfield is the author of The Myth of Choice and The Failure of Corporate Law. He’s an expert in constitutional law and corporate law, and clerked at the Supreme Court for Justice David Souter. Along with being a guest on CNN and MSNBC, Professor Greenfield has contributed to the New York Times, Washington Post, Boston Globe, The Nation, The American Prospect, and legal publications such as the Yale Law Journal, the Virginia Law Review, the Harvard Law and Policy Review, and the George Washington Law Review. Professor Greenfield is also a frequent lecturer in both academic and public settings.

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ASSOCIATE PROFESSOR BRIAN QUINN, BOSTON COLLEGE LAW SCHOOL; (617) 552-2202 (o); 617-833-9423 (c); brian.quinn@bc.edu
Professor Quinn is an expert in corporations, mergers & acquisitions, and deals. Professor Quinn's research focuses on corporate law, mergers & acquisitions, and the structuring of transactions. Prior to entering the teaching profession, Professor Quinn was in private practice, representing public and private technology clients in merger and acquisitions transactions. In addition to academic writing, Professor Quinn blogs on current deals and legal developments related to mergers & acquisitions at the M&A Law Prof Blog (http://lawprofessors.typepad.com/mergers/). Professor Quinn has been widely quoted by a multitude of media entities, including The New York Times, Wall Street Journal, Financial Times, Boston Globe, Reuters, AP, Dow Jones Newswires, Bloomberg, Bloomberg TV, and The Business Insider.

 

 

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3-25-14

The arguments are over and now it’s up to the Supreme Court to decide if a corporation can have a conscience. The high court heard both sides today in the case of Hobby Lobby, an arts and crafts corporation claiming its religious beliefs don’t allow it to provide employee healthcare benefits under the Affordable Care Act that include contraceptives.

“I think the contraceptive mandate is going to go down,” says Boston College Law Professor Kent Greenfield, who was in the courtroom as the justices heard the case.  “There was a surprising lack of skepticism toward the notion of corporations raising these issues.

“To the extent there were concerns about that, the concerns actually ran the opposite way, concerns about corporations, for example, being required to provide abortion services even though their owners felt that was immoral,” says Greenfield, who wrote a Boston Globe Op-Ed on the matter. “There was a lot of question about whether there were less restrictive means whereby the government could provide contraceptive services without forcing companies to do it.  The bottom line is that there were many more questions that seemed sympathetic to the companies involved than to the government’s position.”

Greenfield, who clerked for retired Justice David Souter, was one of the principal authors of an amicus brief in the case where he argued that a victory for Hobby Lobby would be inconsistent with principles of corporate law. While Greenfield feels allowing Hobby Lobby a religious preference would open the floodgates for corporations to cherry pick laws they like, the Supreme Court didn’t focus on that.

“What surprised me was when they were talking about the various slippery slopes and the various repercussions of a ruling for Hobby Lobby or for the government, that the court was fixated much more on the implications of a ruling in favor of the government,” says Greenfield, author of The Failure of Corporate Law.  “Justice Kennedy, for example said, ‘Wouldn’t this mean a for-profit company could be required to provide abortions even if they have a sincere religious objection to it?’ So I think the hypotheticals the court was grappling with seemed to be hypotheticals that showed the weakness of the government claims.

“Most of the questioning seemed sympathetic to Hobby Lobby except for the women on the court. Justice Kagan, Justice Sotomayor, and Justice Ginsberg were very vocal and pushed Hobby Lobby’s lawyer quite a bit -– but other than those three justices, there weren’t a lot of pointed questions aimed at Hobby Lobby’s attorney. In fact, Justice Breyer, who is usually counted as one of the liberals, did not ask Hobby Lobby’s lawyer a single question.”

3-21-14                           

Can a corporation have a conscience? That will be the key question for the Supreme Court next week when it takes up the case of Hobby Lobby, an Oklahoma arts and crafts corporation that says its religious beliefs don’t allow it to provide employee healthcare benefits under the Affordable Care Act that include contraceptives.

“I can guarantee you, a corporation will never go to heaven,” says Boston College Law Associate Professor Brian Quinn. “Corporations don’t have all the constitutional rights that you and I have. One of those rights that are very personal in nature is the right to have a religion, to be religious.”

 “I think the case is a fascinating one because it asks the question of whether corporations can exercise rights of religious conscience,” says Boston College Law Professor Kent Greenfield, who wrote a Boston Globe Op-Ed on the matter (http://tinyurl.com/nvpw6dq). “If corporations are able to assert a right to be exempt from regulation just by saying so, it undercuts the ability of a democratic society to use our public policy to constrain them.”

Greenfield was one of the principal authors of an amicus brief in the case signed by 44 prominent corporate law professors, arguing that a victory for Hobby Lobby would be inconsistent with principles of corporate law. Quinn and BC Law Professor Renee Jones also signed on. (http://www.bc.edu/content/dam/files/schools/law/pdf/hobby_lobby.pdf) Greenfield and Quinn say if the Supreme Court finds that Hobby Lobby can establish a religious preference, it would open the floodgates of allowing corporations to cherry pick laws they like while providing themselves a competitive advantage.

“If Hobby Lobby were to win, corporations would presumably have the right to opt out of regulations that they believe are a violation of their religious expression,” says Quinn, an expert on corporate law, mergers, and acquisitions. “If the Supreme Court decides that corporations have the right to express religious preferences, the board of directors of say, an Exxon, could adopt a religious preference that would permit them to do all sorts of things and opt out of regulatory practices, and that’s kind of disconcerting to a certain extent.”

“If Hobby Lobby wins, that’s where I think the risk of fraud or overstatement of religious beliefs come in because those kinds of assertions of religious rights gives them a competitive advantage,” says Greenfield, an expert in corporate and constitutional law. “A company will say, ‘Look, we have a religious right to be free of this regulation.’ When a company is free of regulation that other companies have to obey, it usually will get some competitive advantage from it. If Hobby Lobby wins, there’s a real risk of companies having fake ‘Road to Damascus’ experiences and finding religious beliefs where in fact they don’t have them.”

Greenfield, who will be at the Supreme Court Tuesday for the case, says because Hobby Lobby was providing healthcare coverage that included contraceptives before the Affordable Care Act was enacted, this case is more political than spiritual. And he says the case may be a prelude to a much bigger issue.

“In some ways I think this case is really about gay rights, even though it looks like it’s about contraceptives,” says Greenfield, author of The Failure of Corporate Law. “A Hobby Lobby victory will open the doors to companies saying they have a religious right to refuse service to gay and lesbian Americans or they have a right to refuse to hire gay and lesbian Americans. As ENDA (the Employment Non-Discrimination Act) is gaining momentum in Congress, a decision in Hobby Lobby’s favor will make it more possible for a company to assert a right to discriminate.”

Quinn says the case is important for corporate law itself because the Appellate courts have started with the belief that a stockholder’s religion should be corporation’s religion.

“And what they ignore is there is a distinction, an important distinction between stockholders on the one hand, and the corporation on another,” says Quinn. “What the Appellate court didn’t do is they didn’t do any sort of analysis as to why it made sense to ignore the distinction between the stockholders and the corporation, and that’s a problem I think because if we start to blur the lines between stockholders and the corporation, we create difficulties for the corporate law.

“This whole process of these cases coming up has systematically ignored the impact or the role of the corporate law. Up until now, it’s all been dominated by questions of religious expression and a simple assumption that the stockholders religious beliefs should be imported into the corporation, and that importation has been without any basis in the corporate law; in fact it contradicts the corporate law in many important respects. So I think it’s important for the integrity of the corporate laws that the Hobby Lobby case fails in the Supreme Court.”

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Note to media: Contact information for additional Boston College faculty sources on a range of subjects is available at:  http://www.bc.edu/offices/pubaf/journalist/experts.html

 

Sean Hennessey
Boston College News & Public Affairs
617-552-3630 (o)
617-943-4323 (c)