I wanted to write a few words about the recent revelations published in Mother Jones that “the Hobby Lobby 401(k) employee retirement plan held more than $73 million in mutual funds with investments in companies that produce emergency contraceptive pills, intrauterine devices, and drugs commonly used in abortions.” Of course, Hobby Lobby is the primary plaintiff in the case recently heard by the Supreme Court, in which Hobby Lobby claims that the Health and Human Services contraceptive mandate is a violation of its religious freedom. At dotCommonweal, Grant Gallicho has picked up this story, analyzing it in terms of the Catholic ethical principle of cooperation with evil. Gallicho judges that the cooperation involved in investing in these drug companies is similar to, if not worse than, that involved in providing insurance that covers contraception and the morning-after pill. But is that the case?
First, Mother Jones’s motive is clearly to discredit Hobby Lobby and its case before the Supreme Court. Surprisingly to me, Gallicho seems to accept that this revelation poses a problem to the case. He writes:
What might last week’s oral arguments have sounded like had this been reported earlier? Hard to say. But I wouldn’t want to defend a plaintiff claiming that any role facilitating the use of potentially abortifacient drugs is inimical to its religious beliefs but can’t be bothered to figure out whether the millions it invests annually directly supports the production of drugs that always cause abortions. One or two justices might start to wonder how sincerely Hobby Lobby holds those beliefs it says ought to exempt them from complying with the law.
Luckily, however, our constitutional rights do not depend on our moral consistency. Do I lose my religious liberty by failing to live up to what I confess as a Catholic? Of course not. Does Mother Jones lose its freedom to criticize McDonald’s wage policies even though in some cases it pays its interns less than the minimum wage? No. So I don’t believe this revelation has any bearing on the legal case; this is just a distraction from the real question of whether a corporation has a right to religious freedom the same way an individual or explicitly religious organization does.
So the revelation is irrelevant to the legal question, but does it involve moral hypocrisy? Maybe, but maybe not. Personally, I have never been convinced that the contraceptive mandate involves the sort of illicit cooperation with evil that the U.S. Catholic bishops believe it does, but what is important for my argument is what the owners of Hobby Lobby think, not what I think. If the contraceptive mandate does involve cooperation with evil, is there a plausible way to differentiate that from investing in the drug companies?
First of all, I think Gallicho misreads exactly what has been revealed about Hobby Lobby. He claims that “Hobby Lobby invests millions in companies that manufacture the very products they want to be exempt from covering in their employee health plans” (italics mine). But, as the Mother Jones article itself points out, the investments are not in the drug companies themselves, but in nine mutual funds, and “Each fund’s portfolio consists of at least dozens if not hundreds of different holdings” (the article also notes that Hobby Lobby invests in fifteen other mutual funds for which the individual holdings are unavailable). So only a small fraction of the investment goes toward the drug companies.
The point here is not the amount being invested in the drug companies, however, but whether investment in a mutual fund introduces an element of remoteness, which I believe it does. Hobby Lobby did not choose to invest in the drug companies directly, but rather in mutual funds that, among hundreds of other companies, invest in those drug companies.
Second, it would be one thing if these companies only produced the morning-after pill, but these products are only a small part of the business of Pfizer, Bayer, and AstraZenica, for example. So does investing in these companies necessarily imply illicit cooperation in the production of the objectionable products? Now obviously Hobby Lobby cannot earmark its investments solely for socially beneficial drugs, but because of the fungibility of money, Hobby Lobby can claim that at least its investment isn’t aimed directly at the unethical drugs, either (This seems like it would be similar to the case of paying taxes that end up paying for an unjust war). This is an important difference from the contraceptive mandate. With the mandate, an employer is quite specifically and unquestionably paying for a product that includes coverage of contraception, whereas with investing, the investor’s money is not specifically funding the unethical activity.
As I mentioned, Gallicho not only thinks that investing in these drug companies is similar to, but even worse than, cooperating with the contraceptive mandate. His argument is that with the contraceptive mandate, it is still the employee who chooses to use contraception, while it is Hobby Lobby that has chosen to invest in the drug companies. Gallicho rightly notes that Hobby Lobby could have invested in mutual funds where these drug companies would be excluded. While it may have been more virtuous for Hobby Lobby to do so, it was not necessarily obligatory. As the above analysis shows, Hobby Lobby’s decision was not to invest directly in the drug companies, but rather to invest in mutual funds that in turn are invested in the drug companies; probably more importantly, the investment was not made specifically in the production of the morning-after pill, but in companies for whom the production of those pills is only a small fraction of their business and who produce many other beneficial medications.
My goal here was not to defend Hobby Lobby’s decisions, but rather to show that there are at least plausible reasons that Hobby Lobby could draw on to explain those decisions. The charge of hypocrisy is a serious one, and charity demands that we explore the possibility of good faith. Although also critical of Hobby Lobby, Michael Sean Winters is certainly right that
In a complex society, we all take actions without intending to do harm, but find ourselves entangled with those whose moral compass is very different. Trying to figure out how to proceed is easy if you are Amish but it is not so easy for a Church, or a company, that is involved in the world.
Given that difficulty, we should recognize that some may proceed in ways that seem contradictory to us, but the response should be patient dialogue rather than condemnation.
Thanks for your response, Matthew. A couple of points: First, I didn’t call Hobby Lobby hypocritical. Not my bag. Nor did I argue that their 401(k) means that they’re illicitly cooperating with evil. Second, my point was rather simpler: The Greens have argued that they should not be made to cooperate even remotely in a financial scheme that could result in people receiving abortions. (Let’s leave aside, for the moment, their interpretation of Ella’s mechanism of action.) So it’s only natural to wonder why they haven’t approached their employee retirement plan with such moral rigor. They have matched employee contributions to funds that grow (in part) from the sales of abortion drugs. And they don’t even offer their employees the option to invest in a “sin free” fund–it’s not on the menu. Why not? It’s not difficult for an employer to make such an option available (indeed, Commonweal has for many years). That’s a perfectly fair question to ask of a plaintiff seeking relief from a statute in order to preserve its moral purity.
Grant, thank you for the response. I apologize if I read too much into your post, but I don’t think you can shrug off my point about hypocrisy so easily. After all, your post starts off by saying, “The owners of Hobby Lobby want you to know they take their moral commitments seriously,” and then the first paragraph closes by claiming that in reality they have been compromising their beliefs. True, you don’t use the word “hypocritical” but the implication seems unavoidable.
If your point is simply that this apparent inconsistency raises a question that deserves an answer, then I do agree, and it is troubling that as far as we know Hobby Lobby has never thought to ask it, let alone provide an answer. I was trying to provide a way they could answer the question, to illustrate that hypocrisy is not the only explanation.
However, I am still not convinced that the question has relevance for the legal case, as you suggest in your last sentence and which you also mentioned in the original post. You wrote: “One or two justices might start to wonder how sincerely Hobby Lobby holds those beliefs it says ought to exempt them from complying with the law.” But sincerity only rarely plays a role in religious freedom cases because almost always it would be inappropriate for judges to evaluate the sincerity or consistency of someone’s religious beliefs or practices. That is my point in my original post, that luckily our religious freedom is not dependent on the sincerity or consistency of our practice.
Matthew: I’m afraid “hypocrisy” is becoming something of a skunked term. It’s often read as an ad hominem attack. That’s one of the reasons I avoided it. Another is that it can indicate a level of awareness that I’m not sure the Greens have. They may not even know that they don’t provide their employees with the option to invest in “sin free” retirement funds. But, through their legal representation, they do trumpet the ways in which their moral commitments shape their business practices. So it seems only natural to wonder why those commitments seem not to have affected the way they handle their 401(k).
I’m interested in the moral question, and didn’t suggest news about the 401(k) would change the course of the case. Whether the legal case is affected by this revelation does not answer the moral one. Hobby Lobby’s retirement plan administrator is an employee of the company, and acts in the same way that its health-benefits administrator does. The degrees of separation are similar (even if we don’t agree about how similar they are). What seems to distinguish the health-plan’s moral calculus is that employees may choose not to use contraceptive services the Greens object to, whereas workers appear constrained to choose from a menu of retirement funds that do not exclude drugs designed to induce abortion.
The company argues that it believes the government is asking it to fund the taking of human life, and that it cannot do so, as a matter of religious belief. If so, and if its religious convictions determine so much of its business practices–from its hours to its refusal to sell even certain receptacles for alcohol–it’s only natural to ask: Why hasn’t it applied that same standard to its employee-retirement plan?
Grant, thanks again for the response. I can see your point about hypocrisy, so that is helpful.
Also, I think we are mostly on the same page. Like I said in my previous comment, “it is troubling that as far as we know Hobby Lobby has never thought to ask [the question], let alone provide an answer.” Hopefully it came across that I don’t find their policies fully morally satisfying, either, I was just hoping to show they are not completely implausible.