Do Corporations Have Religious Rights?

A flock of companies — 84 says the Wall Street Journal — have sued the government arguing that for religious reasons they should not be required by the Affordable Care Act to provide insurance to their employees that includes coverage for contraceptives. The Supreme Court combined two such cases into one, jointly referred to as "Hobby Lobby", and heard the arguments of both sides in late March with a ruling expected in June.

The owners of both family-held corporations in the combined case — Hobby Lobby, a chain of arts-and-crafts stores based in Oklahoma City, and Conestoga Wood Specialties, a Pennsylvania manufacturer of kitchen cabinet doors — are highly religious and offended that they should have to violate their religious principles by offering such insurance. Of the twenty government approved methods of contraception, they object to four that act, they say, as an abortifacient — a substance that induces abortion, such as the "morning after pill", although that is taken with no knowledge of whether conception took place the night before.

Members of these families are of course free not to use the contraceptives themselves, and even free to proselytize their employees not to, but instead they believe they should have the right to impose their religious rules on their employees’ lives and deprive them of this benefit. "There's no way we're taking anybody's rights away", says David Green, CEO of Hobby Lobby. "It's our rights that are being infringed upon". A Wall Street Journal editorial calls this paternalism “the free exercise of religion”, as in the freedom of the few to impose their religious views on the many, evidently.

Most of the questioning by the conservative justices centered on 1993's Religious Freedom Restoration Act (RFRA, spoken of as "Rifra"). It was difficult to believe that the Court would go well off principle and lose itself in the misapplication of this particular law.

As background, the Court had decided in 1990 that Native Americans could be prosecuted for the use of peyote, a hallucinogen certain tribes use in the practice of their religion. The Court ruled that exceptions could not be made for religious practices when a law applied equally to everyone. An uproar over the government stepping on religious freedom led to passage of RFRA — 97 to 3 in the Senate, unanimous in the House, signed by President Clinton in 1993 — which set curbs on what the government could enforce. The law was to safeguard an individual's right to free expression of religious beliefs. Congress certainly did not have corporations in mind.

First, if the Court — six of whom are Catholic — decides in favor of these litigants, they will be effectively expanding on their ruling in Citizens United that corporations are “persons” and should have many of the same rights as their human counterparts. The attorney for the plaintiffs, Paul Clement, has said just that: "The courts are very able to determine whether a corporation's religious beliefs are sincere". If the Court decides that corporations can have religious beliefs, it will have descended into idiocy.

Justice Sotomayor asked just how does a corporation practice religion? On the PBS NewsHour, Walter Dellinger, solicitor general under Clinton, expressed the fittingly sardonic view that a corporation is very unlikely to be able to establish that it has a conscience that is being violated or overridden or of "having a soul or being faced with damnation". But there seems to be magical thinking in today's Supreme Court.

FRFA says that a government action "shall not substantially burden a person's exercise of religion" unless it is "the least restrictive means of furthering a compelling government interest". The conservative justices' sharp questioning of Solicitor General Donald Verrilli, who argued for the government, showed a sympathetic tilt toward the corporations' (i.e., the families') "burden". Little regard was paid to Verrilli's emphasis on the burden on their employees, depriving them of benefits that other insurance buyers receive and affecting the over 28,000 employees of the two companies with the imposition of the families' religious notions about conception. Why, asked Justices Sotomayor and Kagan, couldn't the two corporations avoid the burden by paying an allowance to their employees with which to buy whatever insurance plan they might choose on the exchanges instead of impacting them with their beliefs?

FRFA was intended to protect an individual's practice of religion. Here the individual has become a corporation, and the conservative justices' deference to the corporations' religious sensitivities seemed to ignore the furthering of a "compelling government interest" — the prevention by contraceptives of unwanted pregnancies, 40% of which end in abortion.

That became evident when Justice Sotomayor asked, could not other employers object to other medical issues such as blood transfusions? Or, what about vaccinations, Justice Kagan added? Clement's answer was that an employer who objected to coverage for vaccinations would likely be thwarted by RFRA's "compelling government interest" in preventing the spread of disease. What about the government's compelling interest in this case — the minimization of abortions? Clement's answer and the conservative justices' deference to the corporations' religious sensitivities ignored it.

By having their corporations bring the suits, the families behind them seem unable or uninterested in seeing beyond their own self-preoccupation to the greater good. That their somehow religious connection to heading off pregnancy will lead to the true harm of abortion down the road somehow leaves them unperturbed.

Clement's view is that a government claim to a compelling interest is void, given how many waivers the Obama administration has already granted to religiously affiliated organizations such as churches, Catholic hospitals and religious non-profits. As this was done by executive fiat, irrespective of what the Affordable Care Act law says, Clement is curiously accepting these extra-legal acts as justification for Hobby Lobby being granted the same privilege instead of the justifiable Republican outcry against Obama taking extravagant liberties with waivers. Here, as well, the Obama administration has disregarded the unequal treatment of these organizations' multi-faith employees compared to those in other corporations.

The White House drew the line only at commercial businesses. Those in court got a hint at what might be to come in Chief Justice John Roberts' musings that maybe exemptions from this healthcare law requirement could be granted only to closely-held businesses because, assuredly, public companies like Exxon wouldn't profess religious convictions. That Justice Kagan had already predicted that such a ruling in Hobby Lobby’s favor would bring religious objectors “out of the woodwork” apparently did not register with Roberts.