Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, August 6, 2013

Confusion about corporations and religious freedom

This piece by Dahlia Lithwick ("All Corporations Go to Heaven") is -- like so much of what she writes -- entertaining and snappily written, but also (in my view) mistaken in places.  Read it for yourself but, for what they're worth, here are two thoughts of mine: 

First, it does not seem helpful to describe the issue presented in the Hobby Lobby case as whether "CEOs can impose their religious convictions on the people who work for them."  The word "impose" suggests, it seems to me, some kind of coercion -- an effort to require another person to affirm what one affirms or to live in accord with one's religious obligations.  Lithwick (like the many others who frame the issue this way) uses "impose" to mean (I think) "act in accord with their own religious convictions, or run their business in accord with those convictions, in such a way that third parties are affected in some way."  But third-parties are "affected" by the exercise of legal and constitutional rights all the time.  Certainly, no employee of Hobby Lobby is, or would be, required by virtue of their employment to affirm what the "CEO" believes or to live his or her own life in accord with the CEO's religious convictions.  The employee would, of course, be affected by those convictions (because he or she would not get free contraception) and the question is whether the government has a sufficiently weighty reason -- one that is weighty enough to justify burdening religious exercise -- for preventing it.

A second thought:  Although I realize that our doctrines and the relevant statutory language put us on this track, it does not seem to me that the question presented in a case like Hobby Lobby (or like Notre Dame's own case) is not "does a corporation have free-exercise rights?"  The better way to think about it, I think, is to look at the relevant state action, and to ask, "is the government acting in a way that burdens religious exercise or violates the no-establishment norm."  The First Amendment, after all, is not (only) a collection of claims or entitlements that individuals and entities have (or don't have).  It's a command to the government:  Don't violate "the freedom of speech"; don't burden the "exercise of religion."

It is obvious that some regulations of corporations violate "the freedom of speech."  And, we can evaluate (and invalidate) such regulations without asking whether corporations have souls, or consciences, or beliefs, or selves-in-need-of-actualization.  It seems equally obvious that some regulations of corporations -- including for-profit corproations -- can burden religious exercise (e.g., "no business corporation may sell Kosher meat") and so can (but might not) violate RFRA or the First Amendment.  Whether or not they do depends, again, on a variety of factors (e.g., the presence of denominational line-drawing or discriminatory intent, the feasibility of accommodation, etc.).


Garnett, Rick | Permalink


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Prof. Garrett is right, of course, but it hardly matters. Lithwick isn't writing to convince anyone; she's writing to buck up her side. And that's probably the only effect this post will have as well. We don't have a common language or conversation anymore.

Posted by: JohnMcG | Aug 6, 2013 1:19:18 PM

Welcome back Rick! First National Bank of Boston v Bellotti requires just the kind of analsys that you suggest: it calls it the wrong question to ask if the plaintiff is the right kind of plaintiff; it insists on asking if the activity is the kind of thing the first amendment protects. US v Lee and many many cases already decided that when a business owner objects to a government regulation, it is the kind of thing triggering scrutiny. The leader on this point is the Ninth Circuit, which for decades has called manufacturers and pharmacies exercisers-of-religion via their family owners. And the Second Circuit did the same for kosher butcher corporations. The real reason for panic by Lithwick and her ideological allies is that RFRA requires the scrutiny to be strict, and they know this Mandate doesn't even come close to satisfying strict scrutiny. So they have to find a way to say religion isn't exercised at all in business. The fact that their analysis yeilds yet another minimalization of religion in society is for them a happy byproduct. The fact that federal appelate courts seated in New York and San Francisco have led the way in saying the opposite is something they are content to ignore.
P.S. If religious exercise is "purely personal," not even churches can do it. Supreme Court precedent makes that view impossible.

Posted by: Matt Bowman | Aug 6, 2013 5:12:13 PM

Hobby has the truth on its side arrived at by reason and not necessarily by faith. Conscience is not necessarily faith as it includes reason.

The argument ought to be, is Hobby's position good or bad for the employee in the context of the good of the overall company and society.

We must defend principle as applied in a larger comtext, than individual(s).

Posted by: Paul Rinderle | Aug 7, 2013 7:42:26 PM

The Dahlia Litwhick article ends by separating "secular corporations" from other things, so the P.S. in the last comment about churches is addressed, as it was in the 3CA case that imho promoted religious liberty for employees w/o threatening religious liberty overall. When talking about "panic" and "ideological allies," with respect, you should be careful to focus on specifically what is being said.

Posted by: Joe | Aug 8, 2013 12:01:49 PM

I understand the concerns of the first comment, btw, but have seen people (including at this very blog) who drew the line at for profit secular business corporations, while supporting the exceptions for religious non-profits. So, on this issue, like one contributor to MOJ tries to promote, I do think there is possible common ground.

Posted by: Joe | Aug 8, 2013 12:09:56 PM

There is only one way legally to claim that corporations cannot exercise religion. That is by declaring religion to be "purely personal." Supreme Court case law is unequivocal that "purely personal" rights cannot be exercised by any corporation, whether they are non-profits, for-profits, or whatever. There is no way to play the "purely personal" card and still let churches or Notre Dame exercise religion. Precedent contains no category of "secular" corporations. Calling a corporation "secular" is a gigantic begging of the question. State laws explicitly empower corporations to pursue "all lawful purposes." Not one of them says they can pursue all lawful purposes EXCEPT religion. No corporations statute says that only non-profits can pursue religious purposes. And the ultra vires doctrine--claiming that corporations can't do things beyond their stated purposes--has been dead for a century, because by state law, corporations have no limits on their purposes. Lithwick's idea that there are secular corporations on the one hand, and different religious corporations on the other, whose purposes can't overlap, fails Business Orgs 101.

Posted by: Matt Bowman | Aug 8, 2013 2:32:05 PM

Hi Mr. Bowman,

O.K., I'm a layman when it comes to legal matters and you obviously have a much greater knowledge of SCOTUS jurisprudence than I'll ever have. Given that, there absolutely are secular corporations. Hobby Lobby would seem to be such a corporation. They are not affiliated with any formal religious organizations and they are not a church. Now, certainly, they can and do operate their company according to what they see as Biblical principles. And that's fine. However, there has to be a line drawn when it comes to declaring religious rights in the private marketplace. I know enough about strict scrutiny to know that the government has to show that they have a compelling interest in forcing Hobby Lobby to follow the HTS mandate. However, for private companies, I think it should be the reverse and that the onus should be on Hobby Lobby to show the violations of their religious beliefs. Otherwise, religious liberty starts to be a way to avoid all kinds of government regulations.

Saying that religion isn't exempted from "all lawful purposes" is true but it also should not be stretched into a get out of jail free card.

Posted by: Edward Dougherty | Aug 8, 2013 4:15:34 PM

Mr. Dougherty, I think your question gets to the heart of the matter. Every coherent objection I've ever heard to the idea of a family exercising religion in their business turns out to be not an objection to that at all, but instead an objection to whether the government should be able to trump that exercise sometimes. Sure, sometimes--but those are two separate issues. First point then: there is no such thing as a "secular corporation" in the sense of saying that ordinary (for-profit) corporations cannot be the locus of the exercise of religion by the religious families that run them. By law they can exercise all lawful purposes. Calling them "secular" so as to say "you can't exercise religion through it because secular and religious are antonyms" is begging the question. By the way, in the Hobby Lobby case there is a co-plaintiff, Mardel Christian Bookstores. Hmm. Second issue, then: can the exercise of religion be trumped sometimes. Sure. The question is when. Human sacrifice comes to mind. We need to have a test. No one defending religious freedom proposes an impossible test. You propose that there be two tests: strict scrutiny,\ for some entities, and a weaker test for others. That is an interesting proposal. At the federal level, however, there is a statute saying that strict scrutiny is the test for "any" exercise of religion. Strict scrutiny can be satisfied sometimes. This particular mandate is pathetically inadequate to that task. Civil rights laws and blood transfusions and the like face no threat from this mandate going down in flames under strict scrutiny, as it most certainly should. The entire reason Obamacare's supporters are responding to this situation with legally incorrect ideas like religion can't be exercised in corporations is that they know this mandate fails strict scrutiny for multiple overlapping reasons, most or all of which are not present with respect to every other law or hypothetical people raise against this situation. It is an insult to Title VII and Social Security to suggest that if this mandate fails strict scrutiny those laws will too, so we must deny that families are exercising religion in the first place. That desperate move by the administration shows how weak their strict scrutiny case really is.

Posted by: Matt Bowman | Aug 8, 2013 9:04:21 PM