Government Forces Hobson’s Choice on Business Owners

by Kathleen Hunker:

Over 50 briefs were filed at the U.S. Supreme Court last week in support of Hobby Lobby, the national arts and crafts retailer battling the Department of Health and Human Services’ (HHS) for its disregard of religious liberty.

Hobby-LobbyAlthough the legal issues varied, several briefs challenged a very corrosive premise that underlies the government’s mandate and, if accepted by the courts, could undermine the constitutional rights of all Americans trying to earn an honest living.

Specifically, HHS (and thereby the Obama Administration) argues that individuals surrender their personal rights when they seek to earn a living and organize their businesses in the corporate form.  Put another way, HHS contends that the protection of the U.S. Constitution is conditional and that Americans must make a choice when entering the marketplace: incorporate and lose your assurance that government will respect your inherent dignity, or retain your personal rights (ie. free speech, exercise of religion, use of property, etc.) but subject yourself to a severe competitive disadvantage and risk of personal liability by ignoring the corporate form.

But, as the Cato Institute notes in their brief, this choice is not without a steep price.

“The fact is that the corporate form is an essential tool for operating successfully in the complex modern economy.”

“Without limited liability, the entrepreneur’s personal assets would be at risk. She would have greater difficulty raising capital. And in the end, the unincorporated business might be squeezed out by competitors—not based on merit, but based on the legal tax advantages available to its corporate competitors.”

Nor is the ultimatum confined to one profession or to one policy area. As I’ve noted elsewhere,

A single religious belief can raise questions of conscience in an anthology of unrelated vocations, and an entire catechism of religious beliefs can exclude the faithful from the market in its entirety. As a consequence, if society gives conscience rights no regard whatsoever, religious individuals could find themselves effectively excluded from pursuing a livelihood.

To demonstrate how this works, I compiled a non-exhaustive list of occupations “closed off” to [devout professionals] under the philosophy that those who believe in traditional morality should simply avoid particular professions. Each example listed comes from a recent legal action that made this very claim.

According to the philosophy I detailed, [devout professionals] cannot operate a catering hall, practice psychology, run a hotel, work as an independent photographer, launch a video-duplication company, rent out apartments (even if it is in their own home), teach in public schools, work as a guidance counselor, run for a clerk’s office, manage a restaurant, open up a florist, oversee and operate an adoption agency, become a social worker, become a pharmacist, start a fertility clinic, serve as a doctor or nurse, or even practice law.

HHS’s legal position turns the Constitution on its head. There is nothing inherent in the corporate form that requires individuals seeking to compete in the marketplace to surrender their constitutional rights. There is certainly nothing in the history and principles of the Constitution that forces entrepreneurs to choose between an honest living and their right to be protected from government excess.

The ability to pursue an honest living represents a cherished part of the free market.  It should not be used as leverage to force the public acceptance of government regulations, especially at the expense of basic constitutional governance.

Kathleen Hunker works as a policy analyst in Austin, Texas. She is a graduate of Columbia University School of Law and the University College London, where she earned an J.D./ LL.M. in public law and human rights.

NOTE: This originally appeared at It was edited and cross-posted with the author’s permission. 


  1. This is one of those toxic fall outs from the legal shorthand that makes corporations people. (Which, according to certain sources, appears to be from laziness akin to saying “they” when you mean “he or she” despite clearly being incorrect.) Without a mind and a soul it would be tough to suggest that a corporation has any sincerely held religious beliefs to violate.

    On a less serious note, why wouldn’t the Christian God be okay with people doing sinful things through corporations? The Jewish one seems to be okay with loopholes like Eruvs and I’m pretty sure they are the same guy.

  2. A print-out of Matthew 18:9 (KJV only) says:

    In order for your argument to succeed, it has to overcome two glaring problems:

    1) When you mention the constitutional right for Americans to earn an honest living, which Americans are you talking about? As far as I can tell you’re only concerned about one person’s rights here: The Martyr/Owner of Hobby Lobby, who has unilaterally (unless there’s some poll of his employees that I’m not aware of (funny how nobody seems to have asked THEM if they agree with their boss’ crusade)) decided what his employees are and are not allowed to do with their own duly earned benefits.

    So the law says he has to fund something sinful through healthcare payments. Fine: He just won’t give them healthcare. The easy retort is to imagine David Green as a Jehovah’s Witness or a Christian Scientist who opposes the idea of medicine in general. Now what?

    But this is a weak counter-argument because it misses the point. The argument in defense of the Bishopric of Hobby Lobby is not concerned with the plight of the workers, but of its Chief Executive Martyr. But nobody is forcing him to use his healthcare plan to have an abortion. No healthcare plan would force anyone to have an abortion, or even buy contraceptives or whatever his problem is. This is not about what WILL happen but what COULD happen. “My employees MIGHT have an abortion, therefore I shall save their souls and, well, not pay for it indirectly.”

    For all anyone knows, not a single HL employee would get an abortion even if it were for free. But that’s not the issue. The issue is David Green has this pretend crusade where he gets to tell his employees that they can’t have a duly earned and otherwise completely legal benefit because they MIGHT do something he finds sinful with it. In which case I ask, why stop there, Mr. Green? Your employees can use their paychecks to have abortions, or buy contraceptives, or buy porn or buy non-Christian rock or provactive clothing or Hanukkah ornaments. Don’t you get it? You have to go the whole mile and not give your employees ANYTHING that could possibly cause them to fall into sin. Thus you’ve now formed an argument where an employer is religiously obligated to not pay his employees anything, or at most some kind of scrip that could only be used for guaranteed non-sinful activities. Perhaps some kind of Purity Stamp.

    But do you believe that an employer has the right to control what their employees do with their money, for religious reasons? Is it okay to save your employees from sin by cutting them off, whether they appreciate it or not?

    2) You can’t argue that David Green is acting in good faith, because all you’d have to do is Biblethump him to death about how being wealthy itself is sinful, and last I checked he’s not living as a monk. You don’t get to participate fully in the secular world (and presumably enjoy all it has to offer, if you get what I’m saying) and then draw the line at this apparently arbitrary spot.

    Fortunately there’s good news for Mr. Green: The Bible has an answer for this conundrum, and you might’ve already guessed what it was. But what about the rest of us? How come society has to cater to this one particular religious belief Mr. Green has, when in fact we’d be doing him a disservice by indulging it? The point is once again being missed: Mr. Green’s problem is not that he’d be complicit in funding abortions for his employees or whatever. His problem is that he’s wealthy, and surely this complaint he has is actually a cry for help. Instead, we should remove his control over Hobby Lobby, thus depriving him of the sinful limb attached to him so that he can, with a clear conscience, enter the Kingdom of Heaven.

    Right? That’s what the Constitution’s about, making sure we’re all at the beck and call of one person and his particular religious beliefs? If I’m wrong please stop me, but that’s what I’m getting from this argument. If not, then excuse me, I have to help a Muslim business owner go to all of his employees’ houses and destroy any pork and alcohol found in them.

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