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.

Monday, August 12, 2013

Rienzi on religious freedom and business corporations

Mark Rienzi has a good column in USA Today regarding the business-corporations-and-religious-freedom issue.  As I wrote a few days ago (here):

[I]t 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. . . .


Garnett, Rick | Permalink


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Thanks for the link. The USA Today op-ed on the opposite side has some serious problems in its statement of the law. It is written as if RFRA does not exist (which is different, of course, from arguing that RFRA does not apply to some subset of corporations). And it reflects a misunderstanding of Supreme Court precedent. Consider the following paragraph:

"Over the years, plaintiffs have demanded religious exemptions from laws on racial equality, the military draft, paying taxes, child neglect, drug use, animal cruelty and more. The Supreme Court has repeatedly said no, drawing a line between laws that explicitly target or place a substantial burden on a religion and those that impose broad, secular requirements on society that people might find religiously objectionable."

The errors in this paragraph should be obvious to anyone familiar with Smith, Lukumi, and O Centro, among other cases. I elaborate a bit in a blog post for anyone who might be interested.

Posted by: Kevin C. Walsh | Aug 12, 2013 6:13:14 PM

The op-ed from my vantage point is not "good" because it is a simplistic analysis that is likely to only convince the convinced. Take the first paragraph:

"Can you make money and be religious? The Obama administration and a few courts have said no — at least in the context of forcing business owners to violate their religion by purchasing abortion-inducing drugs for their employees. Thankfully, most courts have rejected this view, leaving individuals and their businesses free to go to work without checking their conscience at the door."

Obviously, you can make money and be religious. The op-ed thus starts on a tiresome footing. The argument of some is that the business, at least for profit corporation, qua business is not "religious" in itself. Not the "business owner" as a human being.

The second sentence is wrong too. Business owners can "be religious" under the Obama Administration's arguments. That would hold even if they were forced to follow some regulation (e.g., a public accommodation rule to not segregate by race) that violates their religious beliefs. They can still "be religious." They would be blocked from exercising a specific religious belief.

Next, what they are "forced" to do is framed in a misleading fashion. They personally don't have to "purchase" drugs. They have to provide an insurance benefit that includes a range of things. They also have to provide a general wage. The wage also allows the employee to use the products of their labor in a variety of ways. The employee is the one who chooses to obtain a certain drug.

Next what does "abortion-inducing drugs" mean? Plan B is not scientifically shown to be "abortion-inducing drugs" -- they work before fertilization. Ella might be, though it is not intended to be -- the users might very well wish to use them before fertilization. If some small chance that a drug might be "abortion-inducing" is enough, a range of drugs probably might not be allowed here, since they might by chance block an egg from fertilizing. Birth control pills used on a regular basis might be blocked too. Of course, many don't think of these as "abortion inducing" so the scary sounding words applied to them might not cause one to visualize these things. But, the principle sought to be applied covers them all.

Finally, the mandate allows "individuals" not to "check their conscience at the door" because "individual" workers are the ones who ultimately make the final call here on how to use the insurance coverage in a way much more direct than the indirect insurance coverage package the employer has to secure here.

If the employer is allowed to not provide the coverage, certain employees will have to "check their conscience" since they won't be able to avoid certain things that otherwise might be covered. Will employers be able to do so consistently? For instance, some might not want to cover pregnancies they deem against God's will. Will denying for profit corporations the ability to do that violate the principle?

Anyway, employers don't have to "check their conscience at the door." They retain the freedom of conscience even if the contraceptive mandate is upheld as to for profits, just like it is not "checked at the door" when they have to follow anti-segregation rules or cover blood transfusions or any range of things, even if their religions demand it. The freedom of conscience is not absolute as to action anyhow. Cantwell v. CT.

Even if I accepted the conclusions of Prof. Garnett, I would not find the op-ed good, from the kneejerk opening on. I realize it's an op-ed, but such simplistic analysis is not worthy of the label even with somewhat lower standards.

Posted by: Joe | Aug 13, 2013 3:03:03 AM

I think the "better way" can be the approach used though if regulations of corporation "burden religious exercise" of others (such as customers who wish to purchase kosher meat), the "better way" is not the only approach possible. The interests of the customers, e.g., can be the source of a lawsuit. Or, a corporation can make an equal protection claim if the regulation is blatantly based on animus against Jews etc. Some comments, including myself, said as much when Volokh Conspiracy (Adler and Baude) raised the hypo.

The op-ed doesn't do much for me, from the first sentence on. You can leave it there, if you wish.

Posted by: Joe | Aug 13, 2013 3:21:18 AM

Is it necessary or proper that a business owner must choose, as Father Jenkins has stated, between violating their Faith and/or morals, or going without Health Insurance and being penalized, when it is possible to have a Health Care Plan that does not include contraception?

Posted by: Nancy D. | Aug 13, 2013 12:02:18 PM

While our Constitution provides for the protection of Religious Liberty, it does not recognize an inherent right to free contraception. Clearly the fact that so many have had to file lawsuits in defense of Religious Liberty because of a fraudulent claim that the Constitution provides for protecting and securing an inherent right to contraception, is just more evidence that we no longer recognize the spirit of the law.

Posted by: Nancy D. | Aug 13, 2013 12:20:09 PM