Now that the Supreme Court has endowed corporations with the right to have their voices heard via unrestrained spending on political campaigns (in the Citizens United decision of 2010), there aren’t many frontiers left to test the idea that corporations are “persons.”
But one test is heading our way with the speed of a freight train. This is the claim that corporations can have a religious conscience -- more to the point, that they can impose their own religious beliefs on their employees.
The issue is raised by three corporations’ challenges to Obamacare, specifically its requirement that employer health plans cover a wide range of contraceptives. The companies’ owners maintain that the rule infringes on their enterprises’ free expression of religion. Lower courts have split on whether a federal law forbidding the government to “substantially burden a person’s exercise of religion” applies to corporations. If it does, the road is wide open for employers to allow their religious beliefs to govern how they do business. Two appellate courts have ruled that for-profit corporations don’t have religious rights and a third says they might; what this split means is that the issue is on a certain path to the Supreme Court.
The implications of granting corporations the right to free expression of religion are horrific. The precedent, writes David H. Gans of the Constitutional Accountability Center, would allow companies to fire workers “for engaging in all manner of activities that may not conform to the religious code of the company’s owners, including using contraceptives or terminating a pregnancy, becoming pregnant out of wedlock, or marrying a person of the same sex.”
The plaintiffs in the three cases are all business-owning families -- the Protestant Greens of Oklahoma, owners of the Hobby Lobby retail chain; the Hahns of Pennsylvania, Mennonite owners of a cabinet firm named Conestoga Wood; and the Roman Catholic Kennedys of Michigan, owners of the industrial manufacturing concern Autocam. They say their businesses are extensions of their religious lives, and therefore, forcing them to pay for contraceptive coverage for their workers violates the companies’ free exercise of religion.
The limitations of this argument should be obvious. Gans focuses on the absurdity of the idea that a corporation, as distinct from its owners, can have a religious conscience. A secular corporation, he writes, “cannot in any meaningful sense pray, express pious devotion, or act on the basis of a religious conscience."
Moreover, there’s no concrete definition of “religious belief,” which means that if the plaintiffs prevail, there would be no practical bounds to a business’ ability to pick and choose which laws it will honor. The Greens, for example, say in a brief filed last week with the Supreme Court that their religious aversion to alcohol precludes them from distributing beer or even selling shot glasses in their stores. Is that a religious belief or an expression of personal morality? If the former, it would come as a surprise to some other religions, such as the Catholicism followed by Autocam’s Kennedys, which incorporates alcohol into its devotional services.
The broader issue is the distinction between the secular and religious enshrined in the Constitution and our political culture. The corporate charters issued by government bestow numerous privileges that profit business owners, such as limited liability and access to special provisions of bankruptcy law and the tax code. In return, businesses have to comply with anti-discrimination laws and other public mandates. That’s the deal.
These business owners don’t want to give up these privileges. But they do want to shed the obligations of functioning in a secular world. They want to have things both ways -- they want to keep their secular rights, without having to comply with their secular obligations.
This is another attempt to blur a line that has already become far too blurry. The Obama administration arguably gave too much away when it offered religious groups a way around meeting the contraception mandates of the Affordable Care Act for their secular arms, such as hospitals that serve secular communities and hire staff without regard to religious affiliation. We’re seeing a steady encroachment of religious dogma into medical treatment, as when St. Joseph Health System imposed an abortion ban at Newport Beach’s Hoag Memorial Hospital, a Presbyterian institution it took over this year.
Giving corporations the status of religious beings would do more than inject religion into the workplace. It would take the community out. Nothing is more threatening to religious freedom than the imposition of religious orthodoxy in places where it doesn’t belong. That’s the issue that will soon come before the Supreme Court. Brace yourselves.
Should corporations have religious rights?