Q: What effect does the Supreme Court's decision in Hobby Lobby have on my small business? Does it mean that I can deny other benefits to employees based on my personal beliefs? I don't like Obamacare, and that seems like an overreach to me, but if that's the law, that's the law, right? -- T.K.
A: Sometimes I feel like Michael Corleone – Just when I think I am out, they pull me back in!
So today I will "Don" (ha!) my business lawyer cap once again and try to make sense of this Supreme Court (good luck there, Steve!) and its latest ruling, especially vis-à-vis small business.
Let's start with the fact that the latest polls show that respect for the Court is dangerously low, in fact the lowest ever recorded:
"The [most recent] Gallup survey found that just 30% of respondents have a 'great deal' or a 'quite a lot' of confidence in the high court, down 7 points from the 2012 survey and marking the lowest approval number for the court since Gallup first started tracking confidence in the court in 1973," according to DemocraticUnderground.com.
Confidence in the Court began to steadily slip beginning in 2000, after its controversial decision in Bush v. Gore. When I was a law student, lo' those many years ago, I was taught that the Court tries to stay out of cases that would result in "political decisions." And now we see why. The upshot of the Bush case is that the Court, rightly or wrongly, was viewed as having taken sides in a mighty political debate.
And that stench lingers.
For an institution that (as we here might say) built its brand on being non-political and independent, that was a killer.
But maybe that case was a harbinger, and not an aberration.
I recently spoke with Charley Moore, the attorney CEO of Rocket Lawyer. Rocket Lawyer is one of those sites that I just love because it makes being a small business owner easier, in two ways:
First, it has powerful cloud-based tools that help entrepreneurs and consumers alike handle basic legal matters on their own.
And second, when you actually need an attorney (and sometimes, yes, you do), it helps folks find qualified lawyers in their area.
The upshot is that Rocket Lawyer has quickly jumped to the front of the pack of such sites, serving up 32,000 legal documents a day.
When I asked the affable Moore about the court and Hobby Lobby, he helped me put things in perspective. Personally, as you may have guessed, I am not impressed with the Roberts Court. I find too many 5-4 decisions on monumental cases, and the perspective that it is more political than judicial than any court in my memory seems obvious.
On top of that, the court to me seems tone-deaf, unable to see the negative effects of cases that I think have been, and will continue to be, very bad for the country, Citizens United especially (The case that allowed corporations to give unlimited funds in political campaigns.).
So, yes, I needed some help figuring these guys out, and that is where Rocket Lawyer Charley Moore came in.
"Courts think generationally, Steve," he told me. "They, of course, want their decisions to stand for decades. And I think what is becoming clear now from the Roberts Court is that they are looking to expand individual rights over the power of the State. The biggest change, and the one you see in Hobby Lobby and Citizens United is that they are expanding the idea of "individual" to include corporate entities."
"So, In Citizens United you saw the majority expand free speech rights to corporations, ruling that they have such a right in their political donations.
"In Hobby Lobby, they again are expanding First Amendment rights, this time to 'closely held' corporations in the form of religious liberty." (The holding in Hobby Lobby was that a "closely held" corporation has the right to deny contraceptive care under the Affordable Care Act if it is doing so because of a "sincerely held religious belief.")
(Interestingly, Hobby Lobby does not forbid employees from getting vasectomies, or Viagra, because of these deep religious beliefs, but I suppose that is a column for another day.)
According to Charley, as a result of all of this, "This is the most pro-business Court in the history of the United States."
Given that, does it mean that Hobby Lobby gives small businesses the right to ignore any law if they do in fact have a conflict with the law based on a "sincerely held religious belief"? No, it doesn't, Charley Moore says. The case was crafted narrowly, although the scathing dissent by Ruth Bader Ginsberg does leave the door open for lower courts to go down that slippery slope, and that is the real danger.
We just passed the 50th anniversary of the passing of one of the greatest pieces of legislation of all time – The Civil Rights Act of 1964, which forbade discrimination by businesses (among others) in public settings.
What would today's court make of such a law? What if someone had a sincere religious belief that not serving Jews or Blacks was OK? A preposterous notion, you say?
I hope you are right, but with this Court, anything in favor of business seems possible.
Today's tip: Undoubtedly, businesses across America today are trying to figure out how to deal with customers' increased demand to make mobile payments. Well, this summer, PayPal (one of my favorite tools), is making it cool, literally. On National Ice Cream Day (July 20th), people in several U.S. cities are invited to simply download the PayPal app and to pay for their treats at any one of the participating ice cream shops. If they do, they will get $5 off just by using the app to pay.
Steve Strauss is a lawyer specializing in small business and entrepreneurship. E-mail Steve at: firstname.lastname@example.org. His website is TheSelfEmployed.