The U.S. Supreme Court’s decision in Burwell v. Hobby Lobby raises a series of important questions for public debate. If for-profit corporations are entitled to exercise freedom of religion, then as a civil society we must consider certain questions that follow from this extension of the prerogatives traditionally granted to churches and other religious organizations, as well as to individuals acting in their private capacities. My analysis will focus on these larger questions of policy and attempt to provide some further context for the debate that should now occur.
Winnifred Fallers Sullivan, whose insights are always penetrating on these issues and worth pondering carefully, has missed the mark in her earlier reaction to the decision. She uses Hobby Lobby as an example of the reductio ad absurdum of the logic of freedom of religion, and argues that we (especially liberal exponents of toleration) are unable to reasonably deny freedom of religion in cases where the substantive rights guaranteed seem intolerable to many. I respectfully disagree. Justice Ruth Bader Ginsburg’s dissent points to many of the dangers associated with the Court’s decision, which rests upon an innovative and expansive interpretation of the Religious Freedom Restoration Act (RFRA). Given that we are stuck with the legal idea of religious freedom—both as a matter of constitutional law and congressional statute, as well as a proxy for an entire set of issues surrounding the appropriate level of government encroachment upon the individual—we cannot choose not to decide between better and worse approaches. And in this case, the decision to extend certain rights to for-profit corporations appears to me to cross a line that ought not to have been crossed, and to lead into unfamiliar and even potentially dangerous territory.
Justice Ginsburg’s dissent points to a major problem in the majority opinion: the difficulty or even impossibility of knowing where such exceptions to generally applicable laws will end. There seems to be no good answer to her question of whether a corporation would now be allowed to opt out of other such rules; certainly the majority’s bare assurance that this will neither provoke further litigation nor lead to undesirable results affords no comfort. Why, indeed, should a corporation (perhaps one run by Christian Scientists) not be allowed to exempt itself from paying for blood transfusions under the Affordable Care Act (ACA)? Or from worker protections under the Occupational Safety and Health Administration, under the theory (called occasionalism) that all on-the-job accidents are caused directly by the deity? Or from EPA regulations, based upon an interpretation of Genesis 1:28 that subjects the natural order to unfettered human dominion? Or from laws against child labor, stemming from the view that work is good for the soul (laborare est orare)? Or indeed from prohibitions on slavery and polygamy, given that both institutions are directly sanctioned in the Bible?
There is no general principle—at least not one that the Court has articulated—that would clearly disallow these results while affirming the result in Hobby Lobby. Perhaps the examples of child labor, slavery, and polygamy, along with Justice Ginsburg’s examples of discrimination based on race, religion, and sexual orientation, could be addressed by the caveat that, in each of these cases, the problem cannot be remedied by the government simply picking up the tab, as it can be in the case of the contraception mandate. But that still leaves an infinity—though a somewhat smaller infinity—of unacceptable, real-world cases.
The lack of a general principle here is no accident. Largely unremarked upon in most of the discussions I have read of the Court’s legal analysis is the unavoidable conclusion that what makes this case different is that contraception is a “religious” issue, that may serve as the basis of conscientious objection in the way that, for example, FDA food purity laws may not. Indeed, in empirical terms, this seems correct, not only because religious organizations have been at the forefront of the debate over contraception and abortion, but also because they had already been exempted by the government from having to fulfill the ACA’s contraception mandate.
Yet there is no strictly logical reason for this. There is no question that individuals have claimed a sincere religious belief in favor of polygamy, the inferiority of women, or racial discrimination. And the Court, including the dissent, reiterated its reluctance to go behind such declarations of belief. It may be suggested that in such cases—unlike that of the mandate for contraceptive coverage—the government interest (or perhaps more realistically, the social consensus) on these issues is overridingly against any countervailing belief. What we are actually faced with, then, is not some general right to freedom of religion, but instead a limited right to derogate in certain cases when a social consensus has not (yet) been achieved or consolidated.
That may be the real empirical test operating to distinguish this case from, say, that of blood transfusions or racial discrimination. Yet to say so is to admit that we have failed to create a legal standard for what is called “freedom of religion”: a point that Sullivan has been articulating forcefully and consistently for some time. While accepting this point, at least in the abstract, I repeat that it does not absolve us from attempting to articulate a standard, particularly when, as all lawyers know, such standards have their own value as guides for social conduct, expectations, and indeed, in this case, the appropriate divide between where the “individual” ends and the “corporation” begins.
It is telling here that perhaps the sole legal fig leaf that distinguishes this case from that of discrimination against African-Americans at the lunch counter is that it is even more clearly about money. What we have is a for-profit corporation, engaged in a dispute with the federal government over a law that requires the corporation to expend funds. At a time after Citizens United v. FEC, we are led increasingly to grant rights that have been explicitly a matter for exercise by individuals—such as freedom of expression and religion—to artificial persons, and to identify money as a form of speech. Yet corporations are manifestly not human beings. A corporation does not die (although it may file for bankruptcy), and it has no conscience separate from that of its individual members. A corporation has responsibilities different from those of a natural person. It may be fined for committing an infraction against the laws, yet it may not be jailed. Only its officers or agents may be, and that, as we have seen following the 2008 financial collapse, happens quite rarely.
Importantly, a major reason for organization in corporate form is to shield those individuals so organizing from certain consequences of acting in their capacity as private individuals, in particular from personal legal and financial responsibility. The fact that a corporation goes bankrupt does not mean that the individual owners of the corporation will thereby lose their life savings. Such special protections are granted in part to encourage business activity, and for the benefit of the overall economy.
The owners of Hobby Lobby want to have it both ways: to benefit from the insulation, distancing, and protection afforded by the corporate form for certain, especially financial purposes, while asserting their individual rights to religious freedom at selected moments, based upon the idea that, rather than being a separate, and indeed fictional entity, their corporation represents (at least at those moments) an intimate expression of their convictions!
Apart from the contradiction involved in this position, it leads to many undesirable consequences. As Justice Ginsburg pointed out, a for-profit corporation, unlike a church, is not necessarily composed of co-religionists. Indeed, it is prevented from discriminating on religious grounds. Under our present system, however, a corporation acts in the interests of its owners, and upon their direction. That now apparently applies to their religious interests. This leads to the obvious problem, noted by all, that the exercise by a corporation of “its” religious freedom may represent a restriction on the rights of its workers to exercise their own rights, even in their capacity as private individuals, for example when deciding matters in consultation with their own doctors.
From a societal perspective, there are significant problems associated with granting such rights to corporations. The rise of the notion of an individual freedom of religion was complemented by a diminution of the Church’s corporate authority. At the beginning of the Reformation, William Tyndale translated the term ekklesia in the Greek New Testament as “congregation” rather than “church.” This was rightly perceived as an attack on the power of the Church, conceived as something distinct from a voluntary association of individuals. Thomas Hobbes followed Tyndale’s translation in an effort to demote the authority of the Church’s corpus mysticum, which would otherwise constitute a threat to the sovereignty of the king (or Leviathan). Churches became voluntary associations whose enforcement powers were limited largely to the power of excommunication. Already before the consolidation of the notion of religion as an individual right, the Peace of Westphalia attempted to remove the possibility that intermediary institutions would dispute, on religious grounds, the authority of the sovereign, by making the prince’s religion that of the land (cuius regio, eius religio). The freedoms that churches and certain religious associations have traditionally enjoyed under the law when acting as religious organizations are the result of a process of negotiation, under which the dangers represented—on the one hand, to individual rights, and on the other, to the sovereign authority of the state—have been sharply circumscribed, at least in America, by what Roger Williams and Thomas Jefferson called a “wall of separation.” The idea that we might be retreating from such settlements is, to say the least, unnerving.
For-profit corporations are also voluntary associations, in a legal if not a real sense. Under our system of contractual labor, unlike slavery, workers are free to stay or leave employment, although this may not mean much when jobs are scarce. However, nobody works for free, something prohibited by minimum wage laws. This means that the fundamental purpose of a corporation is not to promote religion—not that of its owners much less that of its workers, who may have no say in the matter. When such a corporation becomes a church, or is treated like one, it calls into question the (admittedly imperfect) “wall of separation,” raising the specter once again of individual oppression and multiple sovereignties. Moreover, it contradicts the purpose of the special protections afforded by the corporate form, which are intended to promote business, not activities that Congress has determined are socially undesirable. A corporation is not even in a position to act as a church.
The appropriate response to the Court’s decision, in my view, would be for Congress to pass a law clarifying that for-profit corporations are not entitled to freedom of religion under RFRA. Individuals should be asked to do what the majority’s opinion says they should not have to: choose between organizing as a business or exercising their individual freedoms of religion. Otherwise, if they want to do the latter, they should be required to forgo the financial protections afforded by the corporate form. The government has always regulated for-profit corporations in a manner different from churches, and there are good reasons for both parties to maintain such differences of treatment.
Thank you to Winnifred Fallers Sullivan for comments on an earlier draft of this essay.