Mirror of Justice

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Monday, April 22, 2013

Vischer on the Religious Liberty of For-Profits

You should make the time to read Rob Vischer's new piece, Do For-Profit Businesses Have Free Exercise Rights?  One interesting feature of the paper is Rob's engagement with the First Amendment institutionalism literature.  He makes the case for some line drawing, in his usual careful and thoughtful way.  Here is the abstract:

Americans are understandably troubled by the prospect of Wal-Mart and the First Presbyterian Church as conceptually identical free exercise claimants. As an expanding array of for-profit businesses sue to block enforcement of the HHS contraception mandate, there is a danger that our failure to distinguish them will weaken the protections for all institutional free exercise claimants. Except for some still largely uncontroversial questions of internal church governance, the “moral bedrock” of religious liberty is increasingly contested when invoked by institutions. Absent some categorical distinctions, we risk what Fred Schauer and others have called “institutional compression” through a process “of leveling down rather than leveling up.” Nevertheless, in the wake of Citizens United, courts may decide not to embrace potential paths of distinction. If the identity of the speaker doesn’t matter for purposes of free speech, it is tempting to say that the identity of the actor doesn’t matter for purposes of free exercise. 

Foreclosing a for-profit business’s standing to raise free exercise claims entirely is not justified. However, in light of the differences between corporate political speech and corporate religious exercise, and in light of the enormous market power wielded by for-profit businesses in the provision of essential goods and services, including the paths by which to earn a livelihood, a court would be justified in interpreting free exercise doctrine to reflect institutional distinctions.

http://mirrorofjustice.blogs.com/mirrorofjustice/2013/04/vischer-on-the-religious-liberty-of-for-profits.html

DeGirolami, Marc | Permalink

Comments

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My concern with this trend is that corporate rights will trump the rights of human beings. If persons had no need of employment, then the argument that employees voluntarily agree to submit to the corporation’s demands when they accept employment would have force. The reality is that employment is not optional, and often the job candidate has no bargaining power at all against corporate policy. When corporate policy becomes an expression of religious beliefs, this means potential employees must choose between having an income and their religious liberty. This seems to me to be a formula for trouble. Serfdom for the New Millennium.

The solution to the whole HHS mandate issue is simple: get employers out of the business of providing health care by shifting this to some form of Universal Health Care.

sean s.

Posted by: sean samis | Apr 22, 2013 12:46:48 PM

Sean, Employers have the right to shape the mission of their company according to their morals and values, and not be penalized.

Shifting to a form of Universal Health Care and mandating that every Insurance Company be a contraception provider would still be a violation of Religious Liberty as one would still be forced to choose, as President Jenkins has stated, between violating one's Faith and morals, or going without Health Insurance.

Since it is true that employers have the right to shape the values and mission of their company and expect their employees to support these values and mission regardless of whether a company is for profit or not for profit, in regards to the HHS Mandate, it is not proper, nor is it necessary for our Government to discriminate against an employer and penalize that employer because the employer's values and mission have been shaped by his/her religion.

Posted by: Nancy | Apr 22, 2013 2:14:03 PM

Nancy,

If all health insurance companies offered contraceptive coverage, no one’s rights are violated. Coverage does not mean you have to use contraception, it means you can choose to. If you don’t want to use contraception, don’t. You don’t have to give up health insurance. President (of Notre Dame?) Jenkins is just wrong, or you have misstated his position. I’m good with either.

You may reply that if health insurance companies provide contraceptive coverage, they pay for it out of insurance premiums, which make people who disapprove of contraception indirect supporters of things their religion disapprove of. If that is your position, then health insurance providers will also have to stop covering blood transfusions; to protect the religious rights of Jehovah’s Witnesses. Health insurance companies will have to stop covering drugs used to treat mental illness; as that violates the beliefs of Scientologists. Health insurance will have to stop paying for almost everything if Christian Scientists object. And we tax payers will have to stop paying for the military, to protect the religious scruples of pacifist religions. Government support of electricity violates the religious scruples of the Amish. Etc. Etc. Can the government fund GPS satellites if some people’s religion teaches that the Earth is flat?

It is not proper for employers to insist that employees support the non-business missions of the employer. If you’re hired as a machinist, your obligation is to be a machinist, not a supporter of the employer’s religious opinions. Your view on this reduces employees to little more than serfs. The employer has every right to pursue their morals and values, but they cannot fairly require employees to do more towards that than their job.

sean s.

Posted by: sean samis | Apr 22, 2013 3:42:25 PM

Also; those coupon links that have been added to my first post were not put there by me, others added them to my post. That is a troubling thing to see.

sean s.

Posted by: sean samis | Apr 22, 2013 3:47:18 PM

Hi Nancy,

How would you feel about my owing a business and if I had an employee who was in the National Guard and was being sent to fight in a war that I felt violated the Catholic Church's teaching on just war? What if I didn't want to let that employee go? Why would my religious liberty rights be less violated by this than the folks at Hobby Lobby or other for profit businesses?

Posted by: Edward Dougherty | Apr 22, 2013 4:09:14 PM

Edward, an employer's right to shape the values and mission of his company does not depend on whether the employer's company is for profit or not for profit. Quite frankly, it is nonsense to suggest that not covering contraception in a Health Care Plan is a human rights violation, especially when you consider the fact that Nancy Pelosi argued that the purpose of adding contraception coverage was to "cut costs".

Posted by: Nancy | Apr 22, 2013 4:43:57 PM

Regarding “it is nonsense to suggest that not covering contraception in a Health Care Plan is a human rights violation”; I believe that if the motive was to conform to particular religious beliefs, then this could be regarded as a religious imposition no different from not covering blood transfusions in conformance to the beliefs of Jehovah’s Witnesses. If something is a legitimate health care choice (like contraception is) and it is excluded from availability for no rational, secular purpose, then such non-coverage does seem at least arguably a violation of religious liberty.

Are Nancy Pelosi’s arguments or opinions dispositive? I think not.

sean s.

Posted by: sean samis | Apr 22, 2013 5:22:50 PM

Nancy Pelosi noted that contraceptive coverage cuts costs. Health care coverage does too. That is not the only "point" of either. She agrees that it is also an important means for the individual to -- following their own beliefs -- take care of their own personal health needs. This is why an independent health organization advised it and other things were included in the protected coverage.

Some have religions against most types of health care or mixing races and religions or serving gay people. But, "public" business can be required to follow rules here, especially when determining what employees who are not the religion of the owner wishes to do with their own money to care for their health following their own religious needs. U.S. v. Lee:

"When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer's religious faith on the employees."

A non-commercial actor who only is dealing with people of that faith might in various cases be a different case. And, along with another year to work things out and so forth, this does factor into how religious groups are treated differently here, given more rights, following state practice in this area.

Posted by: Joe | Apr 22, 2013 5:31:18 PM

[I should say health care coverage AS A WHOLE does too, since contraceptive coverage is part of health care.]

Posted by: Joe | Apr 22, 2013 5:45:31 PM

So, Nancy, if I'm running a business and I don't want to let any of my employees who are soldiers go and fight in wars that I don't agree with because I'm a Quaker, then that's my right, correct? Because then I'm running my business according to my shape and vision.

Posted by: Edward Dougherty | Apr 23, 2013 12:35:58 PM

I respect what the last comment is doing to try to get a sense of the breadth of the principles being promoted here but do think governmental duties to the state like jury duty, military service and the like are an easier call.

But, taxation (and honestly I think this is a form of taxation at the end of the day, the dividing line artificial) and regulation of public accommodations also are duties and at some point they are there even if they clash with the religious beliefs of owners of for profits (at least). Some don't want women and men to mix together or would require women to be dressed in a very restrictive way. A person running a bake shop, e.g., cannot refuse to serve women because they don't want them to mix with male employees. Religious liberty notwithstanding.

Posted by: Joe | Apr 24, 2013 10:33:54 AM

Here is an interesting post from Religion Clause Blog
_____
Unusual Fall-Out and Comments Follow Food Company's Challenge To ACA Mandate

As previously reported, last month Eden Foods, a natural and organic food company, filed what seemed to be a clone of the numerous lawsuits by Christian-owned companies challenging the Affordable Care Act contraceptive coverage mandate. However, yesterday Salon reported on the far-from-typical subsequent developments. First, Salon reports a "massive backlash among [Eden's] liberal customer base." Much of the opposition appeared as comments on Eden's Facebook page. Second, in an earlier Salon interview Eden CEO Michael Potter cast substantial doubt on whether his objections were really religion-based. Potter said: "I don’t care if the federal government is telling me to buy my employees Jack Daniel’s or birth control. What gives them the right to tell me that I have to do that? That’s my issue, that’s what I object to, and that’s the beginning and end of the story."
_____

It seems to me that granting religious exemptions to for-profit businesses invites this kind of abuse.

Posted by: David | Apr 24, 2013 11:03:22 AM

There is an interesting post on Religion Clause Blog titled "Unusual Fall-Out and Comments Follow Food Company's Challenge To ACA Mandate." Michael Potter, CEO of Eden Foods, filed a suit challenging on grounds of religious liberty the Affordable Care Act contraceptive coverage mandate. However, his is on record of having said the following: "I don’t care if the federal government is telling me to buy my employees Jack Daniel’s or birth control. What gives them the right to tell me that I have to do that? That’s my issue, that’s what I object to, and that’s the beginning and end of the story."

It seems to me that granting religious exemptions to for-profit businesses hands business owners a way of challenging laws and regulations that is currently unavailable to them and which they may misuse for purposes other than religious ones.

http://religionclause.blogspot.com/2013/04/unusual-fall-out-and-comments-follow.html

Posted by: David | Apr 24, 2013 11:32:04 AM

When discussing this subject, it's important to remember that whatever legal distinctions exist for limited purposes between a business and its owners/operators, in the moral life of the believer who owns and operates the business the distinction is mostly irrelevant. Catholic theology does not give a pass to a believer who exploits his workers and spoils the environment just because the business is incorporated. Consider especially a closely held business--all the HHS plaintiffs that I know of are families or believers that own and control the business. In this context when we are talking about a "business" exercising religion, we are really talking about whether lay Christian business women and men are exercising religion.

This affects Rob's discussion of whether the law ought to recognize religious exercise by a "business." Rob does a great job in the first part of his paper showing that there can be no categorical exclusion of "businesses" (lay believers in business) from exercising religion. But later in the paper Rob announces his intuition that lay believers in business should not have as much ability to exercise religion as, say, churches. He doesn't specify what that lower status of free exercise should look like, but he says it there should be a lower status because of his opinion that activities in business just aren't as important to believers as their activities in church, and because he thinks the public has the same reluctance.

This point is problematic not only because of its shaky foundation. It is also problematic because it is inconsistent with the Catholic citations Rob relied on in the first part of his article. In particular, the Pontifical Council for Justice and Peace's document on the responsibility of the business leader is emphatic that believers cannot claim to be believers if they violate the faith when they practice business. That is a natural conclusion from nearly all Christian theology. Pope Benedict reiterated it in his visit to the US: believers can't profess the faith in church and then violate that faith's principles in business. Discipleship of Christ isn't really discipleship unless it serves Christ in every component of life. Catholic theology simply does not render a believer more free to violate moral principles in business on the theory that "temporal" pursuits are just not as important as what he does in church.

So there's something deeply incompatible with Christianity to say that lay believers in business should not have full free exercise of religion. It's also troubling from a Catholic educational standpoint to teach students in a school of business or law or medicine that the faith is integral to their practice of their career as a vocation, but then to opine that once believers are actually in those vocations their freedom to live according to Christian integrity can justly be hobbled by the government since it isn't as important as what they do in church. If the faith isn't important enough to the laity in business to render them religious freedom, one is hard pressed to claim that "Catholic education" in "temporal" fields has a truly distinctive character. If the issue were a just wage or environmental stewardship, we wouldn't see Catholic thinkers suggesting that the faith has only secondary application in fields like business.

Posted by: Matt Bowman | Apr 24, 2013 11:49:33 AM

Mr. Bowman,

Certainly Catholic theology doesn't give a pass to operators who spoil the environment or fail to pay a just wage. But Catholic theology and the law are not the same thing. In our law and in our insurance system, we are forced to pay for things that we don't agree with on a daily basis. I pay more for my auto insurance here in Michigan because we allowed motorcycle riders to ride without helmets last year, even though I don't agree with that. If I get drunk tonight at the Tigers-Royals game that I'm going to and I smash my car and kill myself, other insurance payers are going to pick up the costs of my bad decision even though they don't agree with it.

My point in bringing up the Quaker/war example and these is that if you're going to excuse for profit business from things such as the HHS mandate, then you cannot excuse Quakers from paying taxes to support a standing army, which is against their religious beliefs (as I understand them). And the next time our country decides to start a war that I feel is against Catholic Just War principles, then I want the flexibility to deny the government the use of any of my employees who are servicepeople.

Obviously, this would be chaos if we allowed this on a wide scale. And that's why I believe that allowing for profit business to exempt themselves from the HHS mandate would be allowing these folks to become the proverbial law upon themselves that Justice Scalia warned about in "Employment Division vs. Smith". In a society such as ours, you sometimes are compelled to pay things that you don't like and I had to do that with the invasion of Iraq. And for profit business owners may have to do that with their HHS mandate or they should switch their businesses to a non profit status (where I have far more sympathy for fighting the HHS mandate).

Posted by: Edward Dougherty | Apr 24, 2013 12:14:17 PM

From a purely legal perspective, RFRA applies in business, full stop. It doesn't have exceptions for business. If you don't like that, blame Bill Clinton and a supermajority of congress. Rob introduced Catholic theology into his argument. I think he's facing a tension that calls his conclusion into question, as I just described.

Posted by: Matt Bowman | Apr 24, 2013 1:11:12 PM

I don’t think RFRA gives a business the right to coerce employees (with threats of job loss or pay cuts) into becoming supporters of the employer’s religious agenda. RFRA does not trump the employee’s First Amendment rights.

sean s.

Posted by: sean samis | Apr 24, 2013 5:00:48 PM

RFRA applies to business but it is not some absolute rule. I cited U.S. v. Lee. The ruling was pre-Smith and that was the point of RFRA -- to return us back to pre-Smith rules. "Full stop" doesn't address the lines drawn here. Talking about blaming Clinton doesn't address the actual complicated issues here. Not helpful.

Posted by: Joe | Apr 25, 2013 12:26:14 AM

Good thing no RFRA plaintiff in these cases is asking to coerce anyone else to do anything.

The fact that RFRA isn't an absolute rule is exactly my point. Letting businesses exercise religion doesn't mean they all win, so if you want them to lose, the answer isn't to claim that no lay believer can exercise religion in business.

As far as Lee goes, it was a Smith precursor. It didn't apply strict scrutiny, it was a social security tax to the government not a purchase of items for other citizens, its rule had nothing of Obamacare's arbitrary and massive exceptions, and the abortion pill mandate has neither a compelling interest nor can it meet the least restrictive means test. RFRA says nothing about returining to all pre-Smith cases. RFRA is about imposing strict scrutiny under Sherbert and Yoder--with no mention of Lee. Applying Lee to the abortion pill mandate is an insult to the social security tax. The abortion pill mandate loses overwhelmingly under strict scrutiny. That's why the government insists that religion must be banished from business at the outset. It knows it will lose under strict scrutiny.

Posted by: Matt Bowman | Apr 25, 2013 12:39:37 PM

Matt;

Coercing someone to give up something (contraceptive coverage) is coercing someone to do something: give up for religious reason something they believe is religiously permissible.

Forcing a business to provide contraceptive coverage forces them to give something up too: they must give up controlling their employees’ private choices. That’s a good thing to force them to give up.

Ironically, the solution to this problem is obvious: get businesses out of health care by implementing a Universal Health Care system. But strangely enough, the same people who bemoan this contraceptive mandate also generally (there are exceptions) generally oppose UHC. They complain about something and oppose the simplest, best solution.

sean s.

Posted by: sean samis | Apr 25, 2013 1:07:28 PM

"As far as Lee goes, it was a Smith precursor."

I said as much. It underlines that RFRA, which had the purpose to bring the law back to pre-Smith, can be applied following its principles.

"It didn't apply strict scrutiny"

Yes, it did. It stated this test had to be met: "The state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest." (citing past cases)

"it was a social security tax to the government not a purchase of items for other citizens"

The tax was for "purchase of items for other citizens." The Amish employee felt this violated his religion but "When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes that are binding on others in that activity." A minimum wage law is not a "tax" but employers cannot refuse to pay their janitors it because it is deemed a violation of their own religion.

"its rule had nothing of Obamacare's arbitrary and massive exceptions"

I find it downright amusing that PPACA trying to balance the law with religious liberty is punished like this. You want it to be really strict huh? The exceptions are based on others found in the states, which have different types of exceptions. If you want less religious exemptions, fine. Seems ironic.

"and the abortion pill mandate"

Plan B is not an "abortion pill." ONE small aspect of the program at issue, though your side wants to inhibit supply of contraceptives as a whole, might be deemed an abortion pill, though even there, "aborting" a one week embryo has health care purposes.

"has neither a compelling interest"

health care and gender equality is a compelling interest and one or more courts have so found ... RFRA is so broad in scope that any overly strict application that tries for perfection is not going to be workable anyhow.

"nor can it meet the least restrictive means test"

it can and for those who want details, you can do a search at the ACS Blog

"RFRA says nothing about returining to all pre-Smith cases"

This is mistaken. http://www.law.cornell.edu/uscode/text/42/2000bb [Smith seen as problematic, "prior Federal court rulings" to be our guide ... the Boerne ruling said this too and a major reason why it struck it down as applied to the states is the belief that the Congress was trying to by itself overrule Smith]

"RFRA is about imposing strict scrutiny under Sherbert and Yoder--with no mention of Lee"

Lee cited these cases & still upheld the principle cited above as to commercial entities which is why for profits -- even for some who find the mandate wrong as applied to non-profits -- is a particularly easy case.

"Applying Lee to the abortion pill mandate"

I find it hard to take you seriously when you call it this when the vast breadth of it in no way involves an "abortion pill."

"is an insult to the social security tax"

As Stevens notes, the level of strictness some demand here would not even allow Lee, since there really was no "compelling" need. But, it helps when there is a selective concern for religious liberty, including for employees in for profits who you want to deny a practical right to carry out their health needs pursuant to their religious beliefs using benefits they earned by their labor. That is insulting to them.

"The abortion pill mandate loses overwhelmingly under strict scrutiny."

It is not an "abortion pill mandate" and particularly for profits it does not lose and again even those who oppose it for non-profits often agree.

"That's why the government insists that religion must be banished from business at the outset. It knows it will lose under strict scrutiny."

Hard to take you seriously. Religion is in no way banished and employees in a vast number of cases have their rights protected as to employers for that matter. Why are you harming religious believers by tricking them into thinking the government don't care about them? That's selfish.

Posted by: Joe | Apr 25, 2013 2:12:37 PM

I'm all for a universal care program though the latest wrinkle on the continuing attempt by the Obama Administration to find a solution here (the law gives religious groups another year to help there) has an individual benefit flavor.

But, like racial civil rights, we won't get there without a long journey. So, an imperfect alternative is realistically applied instead given long practice in part a product of history (like wage/price controls during WWII). Economies of scale make employer or education institution based health care sensible.

Still, the program there will be paid by taxes and the employer in some fashion might have to inform the employer of their benefits as a taxpayer who might have some additional benefits than some floor (like Medicaid would offer). I'm sure some still will find there is just too much involvement there, some taint.

Posted by: Joe | Apr 25, 2013 2:23:06 PM