Thursday, June 30, 2016
In his opinion dissenting from denial of cert in Storman's, Justice Alito wrote that "If this is a sign of how religious liberty claims will be treated in the years ahead, those who value religious freedom have cause for great concern." To which Michael Sean Winters responds, "Bosh." I'm afraid, though, that Alito is right, and Winters gets it wrong, on this one. Winters frames the issue in terms of his underlying view that it is a mistake to see for-profit corporations as having religious freedom. He writes, "The claim [in Storman's] rests not only upon a certain valuation of religious freedom but as well on a certain understanding of a corporation."
I understand Winters's argument that we should "draw a clear line between the religious rights of our religious organizations and the rights of secular corporations." I've made a similar argument myself. Here, though, nothing about Storman's and the claim presented in that case actually turn on this point. The issues on which review was sought have to do with (a) whether the government should be able to target religiously motivated conduct for regulation and, relatedly, (b) whether the government's willingness to accommodate or exempt some claimants from generally applicable laws creates a presumptive obligation to extend similar solicitude to religious claimants. As it happens, that issue was presented in this case by a corporate entity -- a drugstore and grocery -- but that fact was not relevant to the arguments made by the claimants, and the dissenting justices, for review. (We don't know if it was relevant to the decision by the other justices not to vote for cert.)
That the Court allowed to stand the lower-court ruling could mean -- we'll see how other courts read it -- that that ruling stands as authority for the proposition that governments may treat religious claims for exemptions worse than others or may selectively single out religiously motivated conduct for regulation. This is why, given the current political controversies, the case is -- as Justice Alito said -- "cause for great concern" and, indeed, "ominous."
Again -- there's room for reasonable arguments about whether our religious-exemptions regime should treat non-profit and religious corporations differently than for-profit ones. (Currently, given Hobby Lobby, that distinction should not matter very much for RFRA purposes, though.) I'm nervous about any suggestion that religious-freedom, or "religion", is something to be excluded from the business, commercial, and economic worlds but, again, there's room for discussion on this. That said, Justice Alito's concerns about the implications of Storman's are well founded, not "bosh."