Tuesday, August 6, 2013
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.).