As noted in the title, this is just the beginning of a thought, but I think there may be something about the public/private distinction at play in the recent (deplorable) “religious liberty” cases involving businesses. The question, it seems to me, is whether a business is public or private. The vague Hobby Lobby standard of “small, closely-held companies” seems to indicate that there are certain types of businesses that are more like a private concern, and hence you have control over whether your values are respected in that space. The implicit contrast is with publicly-held companies, which are (in principle) owned by “the public at large” and hence can’t demand the same kinds of rights that businesses more associated with a defined individual or group can.
In Aristotle, the economic realm is what we would call private. It’s something like the threshold of the political — there are forms of power at work, it is necessary as a support of the political, but it’s not yet the political. The modern concept of economy seems to carry the economic at least partway across the threshold, insofar as the economic is the realm of contract and law, etc. Yet in the terms of classical liberal political theory, there’s also a sense in which it remains a pre-political space, a presupposed background to political deliberation.
A “publicly held” company is fully across the threshold — it has entered into the public realm and is accountable to public norms. The “privately held” company is part of an individual’s property, conceptually a part of his “household” — and here I’m thinking in the full Aristotelian sense, where the workers he hires are also included in his household, as were the household slaves for Aristotle. It may be creepy and weird (not to say illegal) for the HR director at Bank of America to take an interest in the sexual practices of employees, but what about for a servant I’m inviting into my home? Perhaps it makes sense that this is the new staging ground for the “family values” campaigns of the conservative movement.
An und für sich 
You think that perhaps this decision is a sign of an increasing focus – in the conservative movement – on the strategic, political role or function of the privately held company?
It seems like it was happenstance to some extent — the Hobby Lobby people just happened to have this weird fixation, etc. — but now they’ve seized upon it.
A related half-thought: is there something going on in late capitalism where we’ve found it necessary/possible to inject our values or political identity into our consumption/production/employment as yet another form of self-expression through economic activity? So rather than a global norm (people shouldn’t sell cakes to gays) we see people argue for the expressiveness of economic acts (who I sell cakes to says something about me) – which to me looks like the logic of consumer culture overflowing its banks.
I like this, because it becomes a system-wide issue, not something limited to the idiosyncracies of the right.
Riffing further: isn’t ethical consumerism a breakdown of the promise of the market as such? One of the most appealing things about the free market is supposed to be its impersonality and amorality — you don’t have to rely on the butcher’s good will, just his desire to make money, etc. What does it say that that big selling point is now seen as a deficit by so many people (now including the butchers, apparently)?
Hannah Arendt’s argument in The Human Condition is a good place to investigate how these private/public distinctions have transformed since the technological revolutions, especially communication and bureaucratic complexities, of the 20th century; after a long period of evolving throughout history but especially accelerated in its growth, scope, and ingenuity after the early moderns discovered space both vast (telescopes) and small (microscopes), the inward turn towards our selves as the last frontier encouraged and fostered social interest in the “private” lives of the free persons.
Arendt, and in this sense you also see it in Blumenberg’s work and in Bassler’s, makes the case ted whalen is: we are not simply expressing our selves in these economic exchanges, but we are instances of a larger social organization expressing itself through us, through its own evolving capture of the available state-spaces for its own life process.
But, and I think this is where it gets harder for people to accept (neverminding all the other fantasies people accept), to understand this life process as a process of an actual living social organism does mean having to step outside of leftist or liberal or radical (whatever especially this last term means anymore) criticisms of “late capitalism”, or just “the market”, and instead think of these critiques as themselves also part of the problem—if the problem is we do not want to be overtaken by the social life process and have it, as the free person itself, choosing what should happen to us as its body members. Yet, just looking around at the cultural media, this is probably the dominant fear uniting all of the various anxieties materialized around what to expect of the future: swarms of intelligent machines, zombie hordes, the seas of ‘illegal immigrants’, hives of bioinformatic aliens—in short, collectives of the extra-human.
For instance, some people are fine with the politics of the hand saying to the eye, We are just as necessary as one another, and no one of us is superior or lesser than the other, so let us work together for the Spirit who holds us together as one Body. Some of you are familiar with that language, having grown up with its logic all around you. That kind of politics assumes the society is given, and from this assumes the organizing spirit of the body comprising all its members, under self-interest and self-expression, in some sense knows what it is doing better than any one individual member, whose own self-secrecy prevents them from knowing what they do, whether good or evil. Under the notion that the same one economy connects all of the globe into one differentiated world, an assumption we make when we start to accept how post-colonial political realities are the result of exploitative transnational and transcultural practices made by distinct entities called corporations, which are themselves tracking along with the bureaucratic evolution of nation-states towards the same understandings, we are no longer free to choose households as individuals, if ever we were.
What you tweet to your small circle of friends, we now believe, says much more about you than all of the things you say in wider circles, and so we have a freedom to interject ourselves into your personal life, to challenge you on what you wear, what you eat, how you treat children, what you say about black people or brown people or white people or trees, where you throw away your discards and how you play The Game itself. We have this freedom, because we now accept even more so than previous generations how our collective survival as a species warrants closer and more refined controls over our own self-expressions. Climate change directly produces an urgency upon us, with threats about the collapse of the world, compelling a vast Moral Panic upon us to change our wayward selves, because at some point in a future outliving ourselves, other people will die. For their sake, for the sake of strangers now who are dying, we have to ensure you purchase the right consumables the right way, along with not saying what can be said in the wrong way. We do this, because we all assume something has to keep surviving beyond us, something within the cultures who shape us and for whom we work, whether by producing material objects or by consuming them or by writing and producing art or by consuming those, too. The social organisms formed out of the individuals coordinating with one another will always take precedence, for the same reason in the Aristotelian sense of the political the household Master controls the slaves, the spouse, the servants, and the children and takes precedence over them. If we really allowed people the freedom to pursue their own ends as individuals, and didn’t channel those ends along goals pursued by the social, then the social organisms they form will go extinct, not be immortal, will not live on in the enduring acts they are striving for in creating through us, the individuals.
So, while we might think it “creepy and weird” for the HR director to have concerns about employee sexual practices, but we don’t think it creepy and weird to tell professors not to have sex with students or supervisors not to request sex from subordinates; and vice versa: we don’t want students to choose to have sex with professors nor subordinates to choose to have sex with supervisors. We might justify this kind of social control over sexual practices with appeals to Social Justice or The Right Thing To Do, we might talk about consent or its differential dynamics, but we shouldn’t ignore that we are already telling people what’s appropriate and inappropriate to do with their genitals in the workplace. We already do not think this is creepy or weird—or do you?
The slow conversion of human autonomy into social regulation has long been happening. Evolution follows repeating patterns. It just takes a certain kind of willingness to step outside of one’s self to find these patterns.
And in this sense, these patterns do go far beyond the idiosyncrasies of the right, and of the left.
I think it’s good that you bring up Arendt, and I think her analysis remains apt. It’s also important to remember that the public/private distinction is also under pressure in ways that Arendt could never have foreseen. The public or private status of Hobby Lobby seems to me to be linked to the unholy alliance of the NSA (and other “public” entities) with Big Data (and “private” companies like Google that profit from and control that data). I also don’t have a complete thought here, but Arendt claims that bringing the private realm of the household into the public sphere of politics has caused a disintegration of both and the rise of a new “social” realm–a.k.a. a permanent biopolitical state of exception?