The Affordable Care Act vs Religious Freedom

Dec 2, 2013

By Ken Blanchard

There are many good reasons for getting a college education. One of them is to reduce the chances that, when you are taking about something serious, you won’t sound like an ignoramus. It is no guarantee. Recently I listened to two members of a Fox News panel, both of whom I know to be intelligent and well informed, make fools of themselves on a matter about which they ought to know at least something.

The topic was the Supreme Court’s decision to hear a new challenge to the Affordable Care Act. The challenge pits a privately owned corporation, Hobby Lobby, against the Obama Administration. The ACA requires employers to pay for contraceptives as part of the health care package they offer their employees. The owners of Hobby Lobby say that the government cannot do this as it violates their religious conscience. The Administration says yes we can.

The two Fox News regulars agreed that this raised the question whether corporations are persons. It doesn’t raise that question at all and for two very good reasons. One is that it isn’t a serious question. Corporate personhood has been part of Western law since the Middle Ages. All it means is that corporate bodies can be recognized as parties before the law.

That’s what makes it possible to sue Exxon when one of their oil tankers spills crude on your beach. It also means that the New York Times can take responsibility for what its reporters and editors write and shield them with the freedom of the press that corporation enjoys. That corporations can be parties in court means that they have both legal obligations and legal rights. Otherwise the government (another corporation) could arbitrarily seize the treasury of the Sierra Club.

Corporations are not natural persons, which is to say individual human beings, and so do not enjoy all the rights of individuals. Corporations cannot vote, for example. They are nonetheless legal persons with at least some rights, if they exist at all. For these reasons it makes no sense to question whether corporations are persons in a legal sense. Of course they are.

The second reason why the question is not germane to the Hobby Lobby complaint is that the Hobby Lobby owners can just as easily claim their rights as individuals under the First Amendment Free Exercise of Religion. The Hobby Lobby managers are persons of faith. They close their stores on Sunday, even though it costs them millions to do so. That’s putting your Bible in the same pocket as your wallet. Can they be forced to choose between their convictions and the requirements of law as a cost of doing business?

The answer is yes, at least as far as the Constitution goes. The Free Exercise Clause means that government cannot use its powers to specifically prohibit religious practice as such. It does not mean that anyone can secure immunity from general laws just by claiming a religious motive. If heroin is illegal for everyone then it’s illegal for me, even if God told me to use it. Congress can require Hobby Lobby or Saint Bernard’s Hospital to pay for contraception for their employees if it requires similar corporations to do the same.

That doesn’t mean that it’s a good idea. It’s a very bad idea. It is part of the genius of the American constitutional order that works so hard to avoid forcing persons to choose between religious scruples and obedience to the law. If traditional Native American religion involves the use of peyote, an otherwise controlled substance, the obvious solution to the problem is to provide an exemption for that purpose. If Hobby Lobby objects so strongly to covering certain forms of contraception in their health plans, it wouldn’t be hard for Congress or Kathleen Sebelius to figure out another way to pay for it. Obamacare has enough problems without forcing everyone with traditional religious beliefs into a coalition against it. 

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.