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Religious Freedom in the Corporate World

Jul 14, 2014

It is a charming coincidence that Hobby Lobby is coming to Aberdeen just as the firm is enjoying its moment of national fame. Or infamy, perhaps — the kind that inspires folks who never shopped there before to announce that they are never shopping there again. 

The Supreme Court decision in Burwell v. Hobby Lobby Stores, Inc. generated enough heat on the left to keep the Dakotas warm all winter. I will try to provide a little light. The Court did not say, as many critics say that they said, that corporations are people. It recognized that corporations are legal persons, meaning simply that they have rights and duties under the law. This has been part of law for the last 500 years.

I have written about that once before, but I will add one point here. As Justice Alito noted, corporate personhood is a legal fiction. It is useful to treat a corporation as a single person when you want to tax and regulate it, sue it, or, if it is the New York Times, grant it the freedom of the press. However, corporations are composed of and act solely through people. When you tell a closely held corporation that it has to do something, you are making a small group of natural persons (five or less) do something. Even if corporations don’t have rights, David and Barbara Green surely do.

Almost all the critics of the decision seem to think that it is the job of the nine justices to decide who they like more and what they would like to see happen. It is not. It is the job of the Court to say what the law is. In this case, the law is The Religious Freedom Restoration Act. RFRA (say it like it’s a word and you’ll sound like Scooby Doo) was a response to another controversial decision of the High Court.

The Constitution has two clauses dealing with religion: the Establishment Clause, which means that government cannot compel someone to conform to or profess any religion and the Free Exercise Clause, which means that government cannot prevent someone from practicing or professing a religion. There are two ways to interpret the latter. One way is the Sherbert Test, announced by the Court in 1962. According to that test, when an act of government imposes a significant burden on someone’s exercise of sincerely held religious faith, that government must demonstrate that it has a compelling interest in doing so and that there is no less restrictive way to serve that interest.

The trouble with that test is that it depends on a lot of vague modifiers. What is a significant burden? Which beliefs are sincere? What government interests are compelling? In Employment Division v. Smith (1990) the Court adopted a simpler and, in my view, better test. A law violates the Free Exercise Clause only if it is designed to target a religious belief or practice. So long as a law applies to everyone the same way, regardless of their beliefs, then it constitutional even if it happens to interfere with some religious practice. So a law that said that only Native Americans are forbidden to use peyote and only for ceremonial purposes would be unconstitutional; however, a law that says no one can use peyote for any reason is constitutional, even if inconvenient for traditional practices.

If the Smith test were all that the Court had to go on, Hobby Lobby would have had no case. The ACA contraceptive mandate applies the same way to corporations generally, regardless of religious motivations. It is up to the Administration to decide on exemptions. However, the Smith decision offended both the left and the right (which may have been proof enough that it was correct). Congress passed RFRA almost unanimously when Democrats still controlled both houses, and President Bill Clinton signed it into law. So if you were offended by Hobby Lobby’s victory, now you know whom to blame. 

I am not convinced that RFRA is constitutional. While persons of any religious faith deserve to be protected from hostile legislation, I don’t think that religious faith should give someone special immunities to otherwise valid laws that are not enjoyed by atheists. Until the Court comes around to my way of thinking, RFRA is the law and it looks to me like the Court has read it correctly.

Critics of the decision have flooded the media and the net with horrifying questions. Does this mean that corporations can stop paying taxes if they have religious objections? Does it mean that a human sacrifice cult can now begin cutting throats? This parade of horrors is absurd because we know very well how the principle of law works. It was operative from the early 1960s to the ’90s as a matter of constitutional law. It has been operative on Congress at least since 1993. The courts have routinely balanced the interests of government and religious objections in mostly sensible ways.

In Burwell the Court ruled that the government could easily have found other means to achieve its objective or providing contraceptive care under the ACA. Indeed the Administration has found other means in the case of churches, which are also private corporations. In those cases, the burden falls on the insurance agencies. Alternatively, the contraceptive technologies in question could be directly subsidized. The Administration could have avoided the case by extending to Hobby Lobby the same exemptions it extended to churches. That they did not do so might be because they wanted to show everyone who is boss. Well, now we know. Turns out it’s the law.

Editor's Note: Ken Blanchard is our political columnist from the right. For a left-wing perspective on politics, please look for columns by Cory Heidelberger every other Wednesday on this site.

Dr. Ken Blanchard is a professor of Political Science at Northern State University and writes for the Aberdeen American News and the blog South Dakota Politics.


09:23 am - Mon, July 14 2014
Robert X said:
"I am not convinced that RFRA is constitutional. While persons of any religious faith deserve to be protected from hostile legislation, I don’t think that religious faith should give someone special immunities to otherwise valid laws that are not enjoyed by atheists."

RFRA does not "protect" or give "special immunities" to religious groups. It does not. It only states that when state action conflicts with religious views, then the state must have a compelling reason, and then act in the least restrictive manner. This seems like common sense in a pluralistic society.

Beyond RCRA, the First Amendment does indeed give constitutional protections to religion, thereby making religious folks a special group.

In any case, we can agree that the nonsense of the Administration's positions in Hobby Lobby vis-a-vis Burwell prove that "constitutional scholar" in the oval office skipped much of law school.
09:25 am - Mon, July 14 2014
Robert X said:
"almost unanimously "

Not good.

Almost pregnant?
10:44 am - Mon, July 14 2014
Roger Holtzmann said:
I have always considered the "legal fiction" of corporate personhood to be an absurd notion, but I was pleased with this decision so I guess I should be thankful Justice Alito did not share my opinion.

I found the left’s the-sky-is-falling! the-sky-is-falling! reaction to this decision highly entertaining. Most didn’t seem to know or care that it was extremely limited in scope, despite what Justice Ginsburg believes.
12:48 pm - Mon, July 14 2014
larry kurtz said:
"Last week, five men on the Supreme Court made an egregious error when they ruled that corporations can dictate women’s personal health decisions.

Congress can right that wrong today by passing the Protect Women's Health From Corporate Interference Act, which would ensure women, not their employers, get to make their own health care decisions.

We need your voice now to make sure Congress acts quickly. Add your name to the petition."

Just click on my name to access the petition.
11:52 am - Tue, July 15 2014
mikeyc, that's me! said:

You used the words "Congress acts quickly."
I laughed so hard I peed a little.
09:00 am - Wed, July 16 2014
Robert X said:
Hobby Lobby, RFRA, Burwell--NONE of these decisions or laws has anything to do with women making their own health care decisions.

So why do we need PWHFCIA?

PWHFCIA is just another law in search of a rationale using fallacies to garner support.

Can anyone point to anything in these decisions or RFRA that bars women from making ANY health care decision for themselves?

09:06 am - Wed, July 16 2014
Robert X said:
Employers making health care decisions for women???


That's like claiming that employers are encouraging rapes of women since they won't pay for a firearm for their female employees to protect themselves!
11:12 am - Wed, July 16 2014
Emily said:
The government said that corporations need to follow certain guidelines and this corporation doesn't want to, so they are hiding behind freedom of religion. Why is this ok? Next they will picking and choosing what taxes they are or are not willing to pay.
11:25 am - Wed, July 16 2014
Robert: under RFRA (or the Sherbert Test) acts that are motivated by sincerely held religious beliefs enjoy protections that the very same actions would not enjoy if they were not motivated by sincerely held religious beliefs. So government could require any person to accept work on Saturdays or forfeit unemployment benefits unless that person had a religious objection. Government could ban the use of peyote by an atheist who fines it pleasant or believes it has mental and philosophical benefits, but not the ceremonial use by Native Americans.

Another objection I have is that this standard requires government to determine which religious beliefs are sincere, which I think runs afoul of the establishment clause.

I don't disagree with your common sense remark. I would allow exceptioms in all the cases mentioned.
08:59 pm - Wed, July 16 2014
Emily: corporations enjoy certain protections under the Constitution and under federal and state laws. Government cannot arbitrarily seize the treasury of the Sierra Club or deny the New York Times the Freedom of the Press.

Your phrase "hiding behind freedom of religion" implies that Hobby Lobby has an ulterior motive for not wanting to abide by the relevant regulation. In fact, the evidence is solidly to the contrary. Hobby Lobby closes on the Sabbath, something that costs them millions. Their objection is genuine.

As I said in my essay, the standard applied to Hobby Lobby was the standard reading of the Constitution until the Smith case. Under RFRA, that standard is applied to the Federal Government. So far no corporation or individual has gained freedom from taxation, so you don't have to worry about that.

I would also point out that there are a lot of limitations on taxation both for individuals and corporations under the Establishment Clause. No one can be taxed to support a church, for example. So let's not pretend that this is something new.
09:08 pm - Wed, July 16 2014
Roger: we are mostly in agreement. I do not, however, see anything absurd in the notion of corporate personhood. It just means that groups of natural persons can be considered as a single individual under the law. Thus Exxon can be held responsible when the front falls off one of their oil tankers. That benefits government. Thus if the New York Times is sued for libel and loses the case, the judgment will be paid out of the corporate treasury. The reporter who thought she was doing an honest job will be embarrassed but she won't lose her house. That benefits natural persons.
06:27 am - Thu, July 17 2014
Ed said:
I find this discussion very informative and not a bunch of political jumbo/gumbo. Thanks to those who have commented.
01:05 pm - Fri, July 18 2014
Robert X said:
"I have always considered the "legal fiction" of corporate personhood to be an absurd notion"

It's no more a fiction that the words that created the rights listed in the first amendment, or the "legal fiction" that denied personhood to the unborn.

Should the Sierra Club be denied legal standing to argue for the collective beliefs of its members, even though it is a corporation?

Should you be able to steal from Wal Mart without legal consequence since Wal Mart is corporation?

Should I be able to harvest & sell the corn (without permission or consequence) from land held by a family trust (as many farms are nowadays) since the trust is not an natural person?

How can we legally tax corporate income if the corporation is a legal fiction?

In law, there are no "fictions".

People acting collectively are simply that--PEOPLE.

No fiction there. No absurdity. Just common sense.
08:42 am - Wed, July 23 2014
Roger, we get excited about court rulings, even if they purport to be limited in scope, because they set precedents for future rulings. The idea that corporations have religious beliefs should offend philosophical and religious sensibilities. "Hobby Lobby" does not believe in God. Hobby Lobby does not sit in a pew. The people who comprise Hobby Lobby do not act corporately when they fold their hands in prayer. Ascribing individual members' religious beliefs to their corporation while shielding members from individual liability for corporate debts and actions shows the picky-choosy nature of pro-corporate law.
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