It is easy to forget that religious freedom wasn’t an only child: she was a part of a family of counter-measures listed in the First Amendment. The naming of religion in the Constitution was, and is, a defensive move: whatever government does, it should not get in the way of its citizens trying to articulate their opinions—opinions articulated through speech, through the press, through assemblage, and through petition. Religion appears in the Establishment Clause as a reminder that religion has been one of the things that has kept people from being able to reply freely to their governments. Free from influences within government, and free from religions that compete with government in their authority.
Although many institutional structures within the United States might be described as religions, the Internal Revenue Code supplies certain benefits to those collective bodies that apply to be recognized as “churches and religious organizations.” The exemption requirements for these organizations make clear that prospective 501(c)(3) organizations are restricted in their political and legislative activities. This is a knotty issue, on which church leaders have at times protested on the grounds of free speech. Why should their collective political opinions be less worthy of articulating than those of anyone else? Nevertheless, churches, unlike many public charities, cannot take a 501(h) election, the expenditure test supplied by the IRS to facilitate appropriate lobbying by 501(c)(3) organizations. The sort of religion that many people worry about when they worry about religious influence is why the Establishment Clause was necessary: namely, religion as a persuasive, even manipulative, power. The truth and fiction behind such an understanding of religion is a topic discussed heavily on sites like Religion News Service and Religion & Politics.
Recent years have witnessed a spate of excellent studies on the specific practices of religious freedom in the United States, that is, the practice of adjudicating something called religious freedom. Such works include those by Garrett Epps, Greg Johnson, Thomas C. Maroukis, Shawn Francis Peters, Winnifred Fallers Sullivan, and Tisa Wenger. There have also been synthetic contributions by Sarah Barringer Gordon and David Sehat. One takeaway from this rich bibliography is that a discursive mayhem ensues whenever communities are forced to represent themselves as religions, and whenever governments are charged to determine the legal legitimacy and the testimonial sincerity of such claims. For readers of this scholarship, the decision to award Hobby Lobby a measure of religious freedom is surprising because the central actors didn’t have to work very hard to prove that they were religious. Indeed, this is the one aspect of the case on which everyone, from any political perspective, was able to agree: these people are really, truly religious. In the annals of religious freedom jurisprudence, just proving you are legitimately religious, and as such that you have rights to certain freedoms, has been a pretty exhausting venture. Maybe it was so easy in this stance because the religion to prove was the owners’ evangelical Christianity, a religion that has long been the form against which all other religious performances in the United States have been measured.
Perhaps, though, there are additional reasons for our eager assignment of religious to the owners of Hobby Lobby, reasons that have more to do with our present relationship to corporate power than to our relationship with religious power. Better put, perhaps this is because corporations are functioning increasingly in present society like the religions that the Establishment Clause sought to moderate.
Any reader of the Hobby Lobby decision is arrested by the masterful ease with which the religious nature of this corporation is decided, a decision that was based on the understanding that the Greens are sincere in their religious belief. Why are they understood to be sincere? Because they don’t just belong to a 501(c)(3); they have made their corporation into a place that feels and acts like a 501(c)(3). In his book, More Than a Hobby: How a $600 Startup Became America’s Home and Craft Superstore, David Green devotes an entire chapter to explain “This Is Not A ‘Secular’ Business,” and the majority opinion agrees, quickly listing features of the company that prove its sincere commitment to religious belief. The Hobby Lobby statement of purpose commits the company owners to operate the company in a manner “consistent with Biblical principles.” Hobby Lobby stores close on Sundays, even though they “lose millions in sales annually” by doing so. The decision proceeds: “The businesses refuse to engage in profitable transactions that facilitate or promote alcohol use; they contribute profits to Christian missionaries and ministries; and they buy hundreds of full-page newspaper ads inviting people to ‘know Jesus and Lord and Savior’.” And we are told, repeatedly, that their business is “small” and “closely held.” The description of Hobby Lobby offered in the decision isn’t a profile of a for-profit corporation. It is a study of a sect. This is how the Supreme Court could argue that it, in particular, deserved religious freedom: by rendering it as it has other minority groups in religious freedom jurisprudence. The Greens aren’t evangelicals in this depiction. They aren’t demographically powerful, or democratically accountable to a diverse community. No, they are dissenting players within capitalism. Who else would not make a profit if they could? The Greens can therefore be seen as fighting for a minority way of life and a minority position regarding birth control. If they acted more like how the Supreme Court thinks for-profit business owners normally act, the case would not have been so easy to make.
The point of scale—Hobby Lobby is small, particular, integrated, committed—is not so unusual in the annals of business self-promotion. In my research on the Goldman Sachs Group, Inc., I have been struck by the reappearance of a similarly bantam grammar to describe their operations. Few people would be comfortable describing Goldman as small or closely held given its force in the global marketplace. Yet, this is the language of their Business Principles and Standards, a series of imperatives referenced throughout Goldman operations and quoted in legal documents, congressional testimony, and media coverage. “We want to be big enough to undertake the largest project that any of our clients could contemplate,” they explain, “yet small enough to maintain the loyalty, the intimacy and the esprit de corps that we all treasure and that contribute greatly to our success.” The equipoise of the remark is intended to be reassuring: Goldman is big enough to fulfill your biggest dreams, but small enough to be cost-efficient relative to that bigness; small enough to feel exclusive and particular in its relation to you; small enough to remain closely guarded, reliably secretive, and highly selective. Employees reiterate this profile, pointing to particular aspects of their management and the resultant operation. The way they comb through applicants to find the absolute best. The way they build a consistent record of performance among those employees. The way their approach to business meets a higher standard than any of the bigger banks out there. The way the place becomes more significant to you than your family.
What I want to underline is that every company avoids depicting itself as oversized, unknowable, or unethical. This is how companies talk about themselves when they want to be understood as persons, when they want to break through the obscurity of financial reports and the dependency of financial relations to say that their incorporated it is a human we, and their human entity is responsibly humane: we think small, we think local, we think about you.
But of course, they are not, and they do not. They are organizations. They are a form of organization that help “human beings to achieve desired ends,” to quote from page 18 of the decision. Most corporations distribute stock and report on their profits. Almost all organize large numbers of people in a variety of hierarchical relations. And nearly every one manages large abstractions and large-scale material scenes. No matter the scale of actual operations, however, every corporation begins the same way, with someone filing a short form with the Secretary of State’s office. As a matter of bureaucracy, becoming a corporation is stunningly simple. In order for a small business to become a corporation, it needs a name, an address, and a set of directors. When you file the initial paperwork, called the articles of incorporation or articles of organization, (such as this example, the LLC application in the state of Connecticut), there is no need to provide a list of business principles. The assumption is that the corporation will be obedient to the regulations of the state in which the corporation resides, and there is no need to recount the history of the company, or to account for the principled relations between its major parties.
By contrast, in order to be recognized as a church or religious organization by the IRS, an organization must fulfill a list of criteria that includes proving its recognized creed and form of worship, explaining its formal code of doctrine and discipline, and relaying its distinct religious history. Presently in the United States, making a business is a lot easier than making a recognized religious organization. But the ease isn’t the point. The point is that the tax code commands that religious organizations give a certain account of themselves in order to have certain benefits. In order to give Hobby Lobby religious freedom, the Supreme Court constructed a similar account of the Greens: their religious history, their doctrines and discipline, their creedal positions about life. This work—the work of arguing for their religion—was not a part of what made Hobby Lobby a for-profit corporation. That was the sale of its scrapbooking products. Yet, it will benefit from that work having been done, with none of the kinds of limits churches and religious organizations face in their economic and political activities. As we know, there are essentially no limits on corporate lobbying.
Our Constitution does not currently offer us many tools to regulate the competing form of governing power that corporations present. The historiography on religious freedom looks grimly on the capacity of government to regulate religion. It seems, by all available evidence, that government does no better with corporations. We can either decide to give up on the possibility of governing either corporate or religious power, or we could—at the very least—make parity in their inception. Let the corporations name their formal doctrines before they have a right to practice their religion. Or at least cap their lobbying power. One way or another, if corporations get excused for being religions, they ought to have to pay the standard fee for being one.