January 07, 2014
Feldman on corporate speech and corporate faith
My friend Noah Feldman (Harvard) has an op-ed piece up at Bloomberg called "If Businesses Can Talk, They Can Pray." It is about the HHS-mandate cases the Court has taken up (Hobby Lobby, etc.) with an eye back to the Citizens United decision. Feldman writes:
Start with corporations, which logically shouldn’t enjoy religious liberty rights any more than they enjoy free speech rights. The Framers would have laughed at the Citizens United decision that gave corporations carte blanche to make campaign donations, because to them corporate bodies were artificial creatures designed to perform certain specified tasks, not emanations of the shareholders’ selfhood. James Madison and the other fathers of the First Amendment would have found it similarly absurd to say that corporations have a right to religious freedom.
I do not agree that "logic" takes us where Noah thinks it does. I would put the matter differently: Do constitutional protections for the freedom of speech and the freedom of religion place any limits on what governments may do to corporate entities, associations, communities, and groups? And, it seems to me, the answer to this question is clearly "yes." Identifying those limits and enforcing them in particular cases are important and challenging tasks, but the claim that "logic" dictates a rule that regulations of corporations get a First Amendment "free pass" is not persuasive.
Noah also suggests the following solution to the HHS-mandate debate:
Here the optimal solution is for the Obama administration to acknowledge that the ACA requires all insurers to provide contraceptives as part of the price of doing business. Why would this work? Because those employers who won’t pay for contraception on religious grounds can preserve their consciences by knowing that they really aren’t paying for it. Instead, the state is making their insurance companies do so, at no cost to them. This should be morally satisfactory -- and neither the law nor the Constitution requires more.
I agree that "the Constitution" probably requires no more than this, though it would seem to rule out "self insurance" by religious entities that object to the mandated coverage.