The Supreme Court has handed down a victory for religious liberty activists yesterday, with a 5-4 ruling in the case of Burwell v. Hobby Lobby. The case, however, does more than merely affirm the protections of the First Amendment and the Religious Freedom Restoration Act. Hobby Lobby undermines one of the core tenants of modern liberals’ view of religion: it is possible for religious people to practice their faith while simultaneously pursuing financial gain.
In order to understand why this issue matters, it is important to understand the background of the case. Formerly known as Sebelius v. Hobby Lobby, prior to Kathleen Sebelius’s resignation from the Department of Health and Human Services, the case arose from the contraception mandates issued by the Department of Health and Human Services as a part of the Patient Protection and Affordable Care Act. The mandate requires that all employers provide contraception coverage as a part of their insurance policies, and failing to do so comes with steep fines for every employee that goes uncovered. Very narrow exceptions for religious and nonprofit employers were permitted, but the prerequisites for meeting the exceptions were so stringent that, as one Catholic cardinal put it, that Jesus himself could not qualify.
As the controversy surrounding the mandates began to boil over, dozens of companies around the United States filed motions for injunctions preventing the government from enforcing the mandates. Three of these companies captured the attention of the high court. Conestoga Wood Specialties, a cabinet-making company from Pennsylvania, was owned by the Hahns, a Mennonite family. Hobby Lobbby, the arts and crafts store chain, and Mardel, a chain of Christian bookstores, were owned by the evangelical Green family. Both these families were stuck in the same interesting set of circumstances: both families believed they had a duty to provide for their employees by offering health insurance, but both families also both held the religious belief that life begins with the fertilization of an egg by a sperm. Four of the twenty FDA-approved drugs mandated by HHS, which included Plan B, Ella, and certain intra-uterine devices, interfered with the process of uterine implantation of fertilized eggs. In the families’ view, this meant that the government was requiring their companies to subsidize the provision of drugs that destroyed unborn lives, in clear violation of their religious views. The families would either have to violate their convictions or pay the government’s massive fines.
While both cases had particular facts that rendered them slightly different from each other, both required analysis of a central question: can a corporate entity legally be both a for-profit entity and have First Amendment religious rights? Legally, this was no small matter. While courts had addressed the issue of whether or not a corporate group could have religious rights–they can, by the way–the court had never confronted the question when profits were thrown into the mix.
The political left was clear from the get-go that profits and religion should not mix, and wrote thousands of articles discussing why. As David Gans argued, this is because corporations cannot themselves express religious views.
Business corporations – apart from the individual actions of their owners or employees – cannot pray, express devotion to a god, and do not have a conscience. As the Third Circuit [in its ruling in Conestoga Wood Specialties Corp. v. Sebelius] put it, “[w]e do not see how a for-profit ‘artificial being, invisible, intangible, and existing only in contemplation of law’ that was created to make money could exercise such an inherently ‘human’ right.” As the Third Circuit recognized, it is nonsensical to treat a business corporation as an actor imbued with the same rights of religious freedom as living persons. No decision of the Supreme Court has ever recognized such an absurd claim.
… The essentially human rights of religious exercise do not extend to corporations formed to run a business and turn a profit.
As the above quote hinted, this theory found some favor among lower courts. Both the Eastern District of Pennsylvania and the Third Circuit decided that the lack of precedent cited by Gans was reason enough to not recognize for-profit corporations as entities that could have religious beliefs.
The Tenth Circuit, however, disagreed with the Third. Reversing the Western District of Oklahoma’s decision, the justices determined that a for-profit corporation could espouse the religious beliefs of its owners. The crux of its argument on the question of profit motives fell on the fact that the Court could not “see why an individual operating for-profit retains Free Exercise protections but an individual who incorporates–even as the sole shareholder–does not, even though he engages in the exact same activities as before. This cannot be about the protections of the corporate form, such as limited liability and tax rates. Religious associations can incorporate, gain those protections, and nonetheless retain their Free Exercise rights.” Basically, if an individual person can seek profit and be religious at the same time, there is no reason the same could not be true of a corporate entity.
In this, the court sided with the theological claims made by countless religious groups–and, surprisingly enough, the Ninth Circuit–that religion is not merely confined to the privacy of one’s own conscience or church congregation. Living out an individual’s system of belief in a holistic and effective manner means, as a matter of practice, that the individual must operate as many aspects of their life as possible according to those beliefs. The Supreme Court has set rational limits on how far that privilege can go in American society: one cannot escape punishment for crimes or refuse to pay taxes, to name two examples, on religious grounds. However, because corporations operate at the behest of their owners, it is only rational that the owners would want to maintain their faith through their control of the corporation’s activities.
The Supreme Court agreed with this line of reasoning. In its decision, it dismantled the argument put forth by the government that for-profit status somehow disqualified a corporation from consideration under the First Amendment’s religion clauses.
Some lower court judges have suggested that RFRA does not protect for-profit corporations because the purpose of such corporations is simply to make money. This argument flies in the face of modern corporate law…. While it is certainly true that a central objective of for-profit corporations is to make money, modern corporate law does not require for-profit corporations to pursue profit at the expense of everything else, and many do not do so. For-profit corporations, with ownership approval,support a wide variety of charitable causes, and it is not atall uncommon for such corporations to further humanitarian and other altruistic objectives. Many examples come readily to mind. So long as its owners agree, a for-profit corporation may take costly pollution-control and energy conservation measures that go beyond what the law requires. A for-profit corporation that operates facilities in other countries may exceed the requirements of local law regarding working conditions and benefits. If for-profit corporations may pursue such worthy objectives, there is no apparent reason why they may not further religious objectives as well.
Justice Ginsburg, in her dissent, argued that the ruling was one of “startling breadth” that changed the face of religious law in America. More specifically on the point of for-profit corporations, however, she tries to distinguish why for-profit corporations do not qualify for the same legal protections as religious ones. Religious bodies as corporate entities, in her view, are distinct from for-profit groups because they serve specific religious functions. They serve the religious needs of their communities, inculcate religious values, and have members that are homogeneously of one religion. Claims to possessing a religion stop there, in her view, because for-profit corporations largely cannot embody those traits.
If Ginsburg’s analysis sounds familiar, it is because it is: the ACA’s exemptions revolve around those exact traits, traits which–as the bishop asserted earlier–Jesus himself could not have lived up to. This line of reasoning relies on a crippled view of theology and religious organizations, one that boxes the function of religion in as the mere ministering of souls and blockades the impact of the religious to within the doors of the church. However, RFRA and the First Amendment uphold a very different view: that the free exercise of religion in public life must be protected as reasonably as possible.
This protection extends to the kind of closely held, for-profit corporation that was considered in Hobby Lobby. Mardel is a prime example of why Ginsburg’s reasoning doesn’t work: as a practical matter, who would legitimately be able to argue that a Christian book store chain does not serve the needs of a religious community, does not inculcate religious values, and (generally speaking) staffs predominately Christian workers? And yet, in Ginsburg and the political left’s world, Mardel’s profit motive means they are just as non-religious a corporation as a McDonald’s restaurant or a strip club.
Just as it is possible for people to have multiple concurrent goals, it is possible to have concurrent goals as a corporation. Hobby Lobby, Mardel, and Conestoga Wood all sought not only to be competitive and profitable businesses, but also to operate in a manner that complied with the tenants of their faith. The Supreme Court recognized their efforts as worthy of legal protection under RFRA and the First Amendment, and it was completely right to do so. The impact of faith in the world is far more multi-faceted and complex than the political left, or Justice Ginsburg, would care for us to permit under the law.