Hobby Lobby — A Question of Agency

When the Supreme Court’s Hobby Lobby decision came out Monday, I had a lot of negative feelings about it, and I’ve been mulling column ideas in my head ever since. But all my attempts to organize my thoughts into a coherent statement and put them in writing — including this one — have been less than satisfactory. In libertarian Internet communities, the decision was met for the most part with unalloyed joy that the good guys had won this time. It’s not at all that clear cut for me. I have at least as many online friends in social justice circles as I do among libertarians, and I don’t blame them at all for their outrage.

All the contending narratives about the Hobby Lobby case seem to involve personal agency. That’s definitely true on the mainstream libertarian side, which presents this as a straightforward question of whether Hobby Lobby’s owners (the Green family, which hold it as a close corporation) can be forced by the state to provide employee benefits that conflict with their personal religious beliefs. But there are a lot more people’s agency at stake here than the Green family’s. And frankly, the Green family billionaires are pretty low on my list of “underdogs” whose moral agency my heart bleeds for (especially considering they invest in contraceptive manufacturers, and most of the “Christian” knick-knacks they sell are produced by near-slave labor in Chinese sweatshops).

And just as an aside on the issue of the Green family’s religious beliefs, the original purpose of the limited liability corporation was to create a boundary between the fictional person of the corporation (even a close corporation held entirely by one family of billionaires) and the natural persons of the shareholders. If this wall is being breached for the sake of identifying the Hobby Lobby corporation with the personal religious beliefs of its shareholders, then maybe we should reconsider allowing the same wall of separation to protect individuals against liability for bad things the corporation does, like BP and the Deep Horizons oil spill.

There’s really no way this decision could have come out that I’d have been happy with. As a libertarian, I do believe in the principle of free association, and I don’t want a government that can mandate particular forms of health insurance for anybody. I don’t think I would have been happy if this decision had gone the other way, just because of what it would have implied for the growing corporate-state nexus. But I wouldn’t have had a sick feeling in the pit of my stomach about it like I do now.

To repeat, there were a lot of people whose agency was at stake here besides the Green family’s — in particular, the 70% majority of Hobby Lobby’s workers who are women. who may have been having a hard time finding work and accepted employment at Hobby Lobby because they really needed a job, who were glad to get health coverage — and who may someday desperately need “morning after” contraception. I felt sick about these people in a way after Monday’s ruling that I never would have about the Green family.

And questions of free association aside, an economic system in which a small wealthy family can wind up in the one-sided position of exercising their own agency at the expense of 13,000 others is a system that’s broken, sick and rotten.

The system we live in, in legal theory, is based on freedom of contract, and the idea that tenants and landlords, software users and sellers, and workers and employers are equal parties to a contract. But we all know that’s nonsense. We feel it in our bones.

As Roderick Long argued (“How Inequality Shapes Our Lives,” Center for a Stateless Society, January 9, 2013), we experience our so-called right to freely contract as equal parties, in most cases, as situations in which one “party” has all the bargaining power and presents the other “party” with a take-it-or-leave-it deal pre-written in standard boilerplate by that “party’s” lawyers.

Now, if you rent your home, take a look at your lease. Did you write it? Of course not. Did you and your landlord write it together? Again, of course not. It was written by your landlord (or by your landlord’s lawyer), and is filled with far more stipulations of your obligations to her than of her obligations to you. It may even contain such ominously sweeping language as “lessee agrees to abide by all such additional instructions and regulations as the lessor may from time to time provide” (which, if taken literally, would be not far shy of a slavery contract). If you’re late in paying your rent, can the landlord assess a punitive fee? You betcha. By contrast, if she’s late in fixing the toilet, can you withhold a portion of the rent? Just try it.

Now think about your relationship with your employer. In theory, you and she are free and equal individuals entering into a contract for mutual benefit. In practice, she most likely orders the hours and minutes of your day in exacting detail …. [T]he contract is provided by her and is designed to benefit her. She also undertakes to interpret it; and you will find yourself subjected to loads of regulations and directives that you never consented to. And if you try inventing new obligations for her as she does for you, I predict you will be, shall we say, disappointed.

These aren’t merely cases of some people having more stuff than you do. They’re cases in which some people are systematically empowered to dictate the terms on which other people live, work, and trade.

In the case of the wage relationship, we live in an economy where the state has systematically shifted bargaining power to the employers of labor and owners of capital, at the expense of those selling their labor power. The state enforces artificial property rights that make land and capital artificially expensive and scarce for workers, and thereby turns the labor market into a buyer’s market where workers compete for jobs rather than the reverse. Through licensing, zoning and housing codes, the state criminalizes low-capital, low-overhead self-employment and comfortable subsistence (like self-built, vernacular and unconventional housing) — thereby forcing workers into dependence on the wage relationship in exactly the way Enclosure did in England.

In the case of healthcare, the underlying legal regime that made the Hobby Lobby case possible was a vast, interlocking constellation of power that included the regulatory state, insurance corporations, the professional licensing cartels (including the requirement that some medications be prescribed only by licensed physicians), the patent-based pharmaceutical cartel, and utterly corrupt bureaucratic corporate hospital chains.

Obamacare itself merely touches the finance side of healthcare — basically guaranteeing revenues and profits to the existing institutional healthcare delivery monopolies through a combination of mandates and subsidies — while leaving the institutional economic power and price markups on the delivery side untouched. It cements the control of these interlocking, bureaucratic, authoritarian — and in many cases evil — institutions over our lives, and legally compels us to consume their services on whatever terms they see fit to offer. But it uses tax money to help us feed the corporate coffers if we can’t afford to pay for the monopoly services on our own.

Absent all these restrictions, open-source manufacturers could produce currently patented drugs at about 5% of the price, consumer co-ops could pool their purchasing power to buy medicine in bulk the way they now do with food, and anyone could just walk in and buy contraceptives (much cheaper) without a note from their doctor.

If all these forms of monopoly and privilege were abolished, no one would be dependent on corporate employers for opportunities to engage in productive labor and transform their skills and effort into access to the necessities of life. And no one would depend on an unholy alliance of the state, insurance corporations, drug companies and professional licensing cartels for contraception or any other form of healthcare.

In the end, it all boils down to agency. So long as there are institutions, government or corporate, which exert unaccountable power over us for their own ends, no outcome will be satisfactory — because we weren’t involved in the decision. So whatever stopgaps people resort to in the short run, including using the state as a weapon against some abuses of corporate power, I’m not going to criticize them on a doctrinaire basis.

But we’re never going to get Hobby Lobby, and big corporations and wage employers in general, out of control of our lives by using the state as a weapon. They usually work together, and always will. Ultimately, the only way out is what Michael Hardt and Antonio Negri call “exodus” — building our own horizontal institutions outside of both corporation and state, and abandoning the corporate-state nexus to rot.