3. The real (and unspoken) criticism evident in the reaction against the Hobby Lobby decision concerns its effect upon capitalist labor markets and the necessity that capitalist workers cede their Constitutional privileges as a condition of employment.
It is my contention that most criticisms of the decision in Burwell v. Hobby Lobby Stores Inc. et al have directed their foci toward the wrong issues. In the initial set of comments that I offered on this blog when the case was originally argued as Sebelius v. Hobby Lobby, I similarly failed to identify the critical issue against which a more thorough critique of the eventual majority opinion could have been framed. Likewise, I would argue that Justice Ginsberg's dissenting opinion fails to uncover the heart of the problem concerning the relationship between religious objections by employers to reproductive health procedures and the enforcement of adequate minimal reproductive health benefits in employer sponsored health insurance plans. Justice Ginsberg, thus, concentrates her attention on the issues involved in women's reproductive health care and the attention afforded to ensuring access to reproductive health procedures by legislators at the time of passage of ACA. In view of the particular issues at stake in the development of regulatory rules and the enforcement of ACA and in the larger Constitutional history implicated in the balancing of governmental prerogatives against free exercise claims arising from laws of general applicability, the particular emphases of Justice Ginsberg's opinion are quite understandable. For my part, as an economist (and, in particular, as a Marxist economist), oversights concerning the proper situating of the ACA as a device of labor market regulation are less easily forgiven!
Emphatically, notwithstanding the particular focus of the Hobby Lobby case on religious objections to certain women's reproductive procedures, the regulation of contraceptive coverage in employer sponsored health insurance plans is a derivative issue rooted in the larger function of the act to expand a regime of employer sponsored health insurance to a larger segment of the employed American labor force. This is not to say that the development of health insurance marketplaces for individuals not otherwise covered by an employer was not a noteworthy and important component of the legislation, but there is no suggestion, based on the legislative history of the ACA, that individual health care exchanges are destined to replace employer sponsorships of health insurance as the bedrock of health insurance coverage in the U.S. In this regard, ACA is, succinctly, an act of legislation whose most important effects are manifest on American labor markets. Like the National Labor Relations Act of 1935, the Fair Labor Standards Act of 1937, and numerous other Congressional enactments, ACA aims to restructure particular features of the labor market bargain between employer and prospective and/or continuing employees, to mandate a set of inducements and penalties for employers of a threshold employment level to sponsor (though not necessarily pay for) a set of health insurance plans satisfying minimal coverage levels for preventative and acute health care procedures. The law aims to do so, in part, to reduce the long term costs of health insurance to employers and to other suppliers of health care coverage and, as such, to control the overall growth of health care expenditures as a share of gross domestic product. Such a motivation is intrinsically linked to economic development and to the maintenance of basic living standards for American workers, inclusive of health care consumption.
As I suggested in the last section of this post, criticisms of the Hobby Lobby decision focusing on the privately-held corporation as a business form miss the point on why the majority opinion is so problematic. In a much broader sense, it makes no difference whether an employer is a sole proprietor, partnership, or a limited liability corporate entity when it comes to the capacity of the employee to exercise certain privileges extended by labor legislation, either at the federal, state, or local level. Barring certain categories specified within the language of the Fair Labor Standards Act and its various amendments, every hourly worker in American labor markets is entitled to receive a minimum wage as compensation. Likewise, every employer of every conceivable form of enterprise is bound by state and federal statutes and regulations against the use of child labor, subject to particular terms and exclusions. Moreover, since the "Judicial Revolution" of 1937, the federal judiciary has largely seen fit to rule that legislative enactments relative to labor markets and to the organization of commerce, in general, are basic to the functioning of any government and, thus, demand minimum standards of scrutiny (i.e. a rationality standard) in evaluating constitutionality.
Such determinations have been critical insofar as they have made American labor markets subjects of direct involvement and structuration by government at multiple jurisdictional levels. Emphatically, the protection of American workers, as the generally weaker party to the labor market transaction, has become, at least partly, a matter for democratic consensus rather than strict reliance on the unvarnished freedom of market mechanisms. Critically, the protections afforded to workers in labor market transactions only extend so far. They are construed in such terms that they do not infringe on the managerial prerogatives of employers, defining the particular practices through which entrepreneurs propose to operate their businesses in the interests of diverse stake holders and as representatives of capital (i.e. representing the ownership share exercising entrepreneurial initiative and default control over the operations of a firm). The boundaries of managerial prerogatives, in relation to governmental regulation in the public interest, on the one hand, and in relation to the interests of labor (individual workers and organized labor), on the other hand, are by no means clearly defined. They remain, alternately, subjects for public/legislative debate and democratic discourse, on the one hand, and for administrative/bureaucratic (e.g. NLRB) and/or judicial interpretation, on the other.
In the case of ACA, Congress devised broad statutory standards defining how the contemplated transformations of required employer sponsorships of health insurance should proceed and vested administrators in the Department of Health and Human Services (HHS) and, in particular, the Health Resources and Services Administration (HRSA) with the authority to devise precise standards on what would constitute minimum coverage requirements in employer sponsored health insurance plans. Presumptively, such standards, enacted in the public interest as a particular regulation of labor market transactions, refining and constraining managerial prerogatives in the provision of benefits to employees, serve a valid public purpose in expanding health insurance coverage across all labor markets to reduce aggregate growth of health expenditures as a percentage of gross domestic product and protecting a wider range of American workers from the financial consequences of a catastrophic increase in individual health care costs. In particular, the specification of women's reproductive care coverage as a component in minimum coverage standards serves the very specific needs of female workers with regard to health care access related to family planning/contraception and pregnancies/prenatal care. Moreover, reliance on labor market regulation to achieve these ends can be assumed to be rationally related to satisfying this public purpose.
The point that I seek to emphasize here, both with respect to the particular challenge to the ACA made by the Greens and the Hahns over contraceptive coverage and with respect to free exercise privileges of employers (as a component of managerial prerogatives) of any business form in general, is that the Hobby Lobby decision underscores a very relevant point about capitalist labor market transactions. That is to say, apart from the particular privileges (e.g. minimum wages, overtime pay requirements, protections from occupational discrimination against targeted minorities) that legislatures have democratically chosen to impart on workers and the particular constraints on managerial prerogatives defined by legislatures, administrators, and/or jurists, workers may expect to check their Constitutional liberties and privileges at the door when they accept an offer of employment. Moreover, the fact that an employer may be fully vested with Constitutional privileges regarding free speech and free exercise of religious beliefs may, by contrast, necessitate a total deprivation of the free speech and free exercise privileges of employees.
To fully elaborate what I think is a stake in the extension of free exercise privileges into the realm of managerial prerogatives of capitalist employers and, hence, conditionalities for employment by workers, I need to develop a multi-level analysis, recognizing certain norms of liberal, individualist "rights" discourse, on the one hand, and developing specifically Marxist class-analytic insights, on the other.
Capitalist Workers and Constitutional Privileges in a Liberal "Rights" Discourse
In regard to the former discursive field, approaching labor market transactions, we are considering the fundamental economic freedom to transfer/alienate a particular good or service in exchange for another good or service under conditions of uncertainty. That is to say, in labor markets, we are presuming that individual human beings have the capacity and legal sanction to exchange their capacity to do work (physical, mental, or otherwise) for some defined finite period of time, a service commodity that Marxian theorists like myself have historically labeled labor power. In the broader history of the development of capitalist economic institutions, human beings capable of engaging in such an exchange have been characterized as free labor (in contrast, within American history, to slave labor, individuals incapable of freely alienating their labor power in capitalist labor markets). Free laborers enter labor markets to offer (i.e. rent out) their labor power in exchange for a mass of goods and services or a monetary equivalent (i.e. a money wage or salary), consumed in order to achieve the reproduction of labor power over time to enable the worker to rent it out repeatedly. It would be possible to make the argument here that economic compulsion for free laborers to make such exchanges as a basic condition of human existence in a market economy essentially diminishes the entire meaning of free labor, but I am not going to proceed in this direction. Let's assume that workers have other alternatives to alienating their labor power, even if their consumption possibilities from not doing are manifestly inferior.
The one thing that we know about a free laborer in the United States is that every free laborer has a set of individual liberties/privileges emanating from the U.S. Constitution and, more specifically, from the Bill of Rights. Our free laborer is at liberty, in accordance with the First Amendment, to speak freely, to freely exercise her religious beliefs, and to assemble freely with others in order to more effectively petition their government to amend existing policies or otherwise publicize to a wider audience collective advocacy for particular social causes. She is also free, under certain conditions, to purchase and bear firearms, consistent with the terms of the Second Amendment. She has a range of protections, under the Fourth, Fifth, and Sixth Amendments, against arbitrary treatment by civil/governmental authorities and a set of privileges enabling her defense in case she has been charged with committing a criminal act. Fundamentally, she is conceived within the eyes of the Constitution as a free individual human being, secure against arbitrary exercises of power by her government and against arbitrary treatment from other free individuals committed against her life, liberty, and personal property, subject to such limitations to which she has personally consented. In this respect, her undiminished right to interact with other free individuals and enter into mutually advantageous contractual agreements is respected by the Constitution and the government that it constitutes, and the power of such contracts on freely contracting parties is inviolable in relation to the actions of the government.
The extension of such liberties constitutes the background against which free laborers enter into labor markets with the intention of alienating their labor power. Most fundamentally, the right of individuals to enter into mutually advantageous contracts with other individuals establishes the institutional basis for the functioning of labor markets. At earlier moments in the development of American capitalism, this right was regarded as wholly sacrosanct, enshrined in Constitutional interpretations as "liberty of contract" (see Lochner v. New York, 198 U.S. 45 (1905), in which the U.S. Supreme Court invalidated a New York statute limiting the hours worked by bakers in the interest of promoting public safety in the production of baked goods). However, the sacrosanct character of the right to freely contract within labor markets was among the primary casualties of the federal Judicial Revolution of 1937. At least since 1937, the capacity of legislatures to craft statutory limitations on the contractual liberties of free laborers and capitalist employers in the interest of protecting workers (in their generally weaker position) and advancing the broader public interest has been widely affirmed by jurists, particularly at the federal level. The free laborer, thus, enters labor markets with a set of preliminary legally-enforced guarantees.
The labor market, as an environment of regulated contractual liberties is not equivalent to the workplace itself. For that matter, in an age when information technology and changes in labor practices (e.g. telecommuting, work from home, etc.) are blurring the distinctions between the workplace and the home, it is becoming less clear where the boundaries of the workplace end, even if we can sensibly define the boundaries of the labor market/bargaining processes between free laborers and capitalist employers. In earlier periods, it might have been more readily possible to ascertain at what moments during a given time period, say a week, that a free laborer had alienated their labor power. For a factory worker in the 1950s, it might have been the forty hours per week spent within the confines of the workplace. These boundaries are less well defined for a contemporary technology worker employed to work from home. We have to articulate a critical spatial difference between the workplace and the home, on the one hand, and a temporal difference between labor time and leisure/non-work time, on the other, and these distinctions are not at all clear at the present moment.
Emphatically, the reason why spatial and temporal distinctions between work and non-work are so relevant is because free laborers give up a wide range of their Constitutional liberties when they transcend the boundaries constituted by mutually beneficial contracting with capitalist employers to actually enter employment. For example, employees lack liberties to engage in free speech (for a good account on the absence of free speech in capitalist employment, see Michael Dolgow, "Where Free Speech Goes to Die: The Workplace," in Bloommberg Businessweek (3 Aug 2012, at: http://www.businessweek.com/articles/2012-08-03/where-free-speech-goes-to-die-the-workplace). Such deprivations of free speech liberties are readily apparent in on site workplaces, where employees lack the right to advocate particular causes not supported by employers and not specifically protected by labor laws ( under certain conditions, speech involving "concerted activities" for the purpose of workers' "mutual aid and protection," explicitly concerning but not necessarily limited to union organizing or contract negotiations, is protected under section 7 of NLRA, see Kate E. Andrias (2003), "A Robust Public Debate: Realizing Free Speech in Workplace Representation Elections," Yale Law Journal, Vol. 112, no. 8, 2415-2463 (ref: footnote 17, 2420), at: http://www.yalelawjournal.org/note/a-robust-public-debate-realizing-free-speech-in-workplace-representation-elections). Employers can restrict the free speech of employers in the confines of the workplace under most circumstances, and, under certain circumstances, especially involving discriminatory speech, employers may have a legal obligation to discipline or discharge workers for particular acts of expression if only to guard against civil liability for violation of anti-discrimination laws committed by employees.
On the other hand, the role of information technology in spatially and temporally redistributing the workplace and, even more so, in generating an explosion of social media, enabling individuals, like me, to produce and publish, for open online distribution, social and political opinions that may contradict those of an employer introduces potentially intractable complications in the exercise of free speech by individuals. It might, for example, be conceivable to spatially and temporally extend the capacity of an employer to police the free speech of employees to spaces and times that do not coincide with traditional conceptions of the workplace. However, when such extensions occur, especially when working practices become flexibly entertwined with non-work, boundary issues, pertinent to the exercise of individual free speech, make it difficult to disentangle the liberties of individuals in non-work time and space from the constrained liberties of employees representing the interests of a capitalist employer.
Beyond such entanglements, we have the further issue of at will employment, as the predominant Common law institution governing American labor markets. At will employees enjoy tenure within their occupational relationship with an employer strictly at the employer's pleasure, implying that an employee can be discharged at any time, with or without prejudicial cause. Taking into account at will employment as the institution characterizing most private sector labor market contracts in the U.S., not otherwise structured by a collective bargaining agreement specifying particular procedures required for the dismissal of employees, it is entirely conceivable that acts of free speech by a free private individual conducted entirely outside of the workplace and not otherwise associated in any way with the individual's employer, generating tangible, published materials contradicting the social or political beliefs of the employer, may contribute to individual's dismissal from the workplace as an employee. The conclusion here should be fairly clear: as a condition of employment, free laborers may be compelled to cede their free speech liberties in toto, to the extent that their expressions might contradict the opinions of their capitalist employer. As such, the vast of expansion of electronic social media in recent years has produced the contradictory result that, for a vast majority of working Americans, the First Amendment protection of free speech may disappear entirely, to the extent that employees mean to keep their jobs and their livelihoods!
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