On March 25, the Affordable Care Act’s contraceptive mandate will be tested as the Supreme Court holds oral argument in the case Hobby Lobby Stores, Inc. v. Sebelius.
The case represents yet another absurd application of a Religious Freedom Restoration Act (the family of laws that got Arizona in trouble recently), and of the anachronistic Free Exercise Clause — only this time the federal versions are at issue.
The facts are pretty straightforward. Hobby Lobby and Mardel are two corporations, both owned by the same devout Christian family, the Greens, who run each business as a “closely held corporation” (complicated legal jargon meaning, essentially, that these are family-operated businesses).
The Greens’ devotion to the Christian faith is not in question. In the 10th Circuit decision, which was decided in their favor, the court wrote that “the Greens allow their faith to guide business decisions for both companies”; they are closed on Sundays, they purchase newspaper ads “inviting people to ‘know Jesus as Lord and Savior,’” and they “[refuse] to engage in business activities that facilitate or promote alcohol use.”
Now, they have their sights set on what they believe to be the anti-Christian nature of some contraceptive methods; the Greens “sincerely” believe it is “immoral for them to facilitate any act that causes the death of a human embryo.”
As I see it, there are really two issues worthy of discussion in this case.
First, does the Affordable Care Act’s, aka “Obamacare’s,” contraceptive mandate, which forces businesses to provide insurance coverage for contraception for their female employees, violate the business’ rights under the First Amendment’s Free Exercise Clause?
Second, do for-profit corporations have rights as religious persons? (Yes, you read that right–it has seriously come to this. John expanded on this “Citizens United for corporations” concept in an earlier article).
I will address the latter question in this post and the former in a separate post, coming soon.
Corporations Do Not Practice Religion
Personally, I think the most interesting fact about Hobby Lobby Stores, Inc. v. Sebelius is that Hobby Lobby and Mardel are for-profit corporations. The free exercise right that has been asserted in this case, which the 10th Circuit actually endorsed, is thus the free exercise right of a for-profit corporation.
Now, I ask: Is there not something ridiculous about the suggestion that a corporation has religious rights?
We have already been through the Roberts’ court’s devastating conclusion that for-profit corporations have free speech rights, which permit them to spend unlimited amounts to purchase electoral results and thereby subvert American democracy. Am I wrong in thinking it is one step further down the road to crazy-town for the law to treat corporations and human beings identically when it comes to religious observance?
Even those who believe firmly in a Christian God will admit that their God is unlikely to stand in judgment of Wal-Mart’s eternal soul. Wal-Mart, like all corporations, is soulless (the word soulless might have double meaning here). This trait corporations share with all other inanimate, non-tangible things. They are also personality-less, loveless, thoughtless–you see where I am going with this.
Religion is the particular province of biological human beings, because the essence of religion is the struggle to explain and give purpose specifically to the human condition. There is no philosophical angst about the corporate condition, which can be dissolved with the stroke of a pen. (What’s next, a right-to-life for corporations? Will bankrupty become abortion?) And companies can’t get married, divorced, baptized. They can’t go to confession or communion. The very faiths that these companies claim to represent do not accept them as “believers.”
Corporate Owners Can Practice Religion
It is true that the owners of for-profit corporations can be devoutly religious, just as it is true that the people who are really “speaking” when corporations pay for political ads are the owners and operators of the corporation. Corporations themselves don’t talk, and they don’t worship. They are a legal fiction–perhaps even a necessary one, to a limited extent.
But why do we tolerate the invidious expansion of this legal fiction into the most sacred frontiers, demeaning our most intimate beliefs and our political system? Why don’t the owners of Hobby Lobby and Mardel, like the owners of politically-active corporations, assert their own First Amendment rights instead of hiding behind the nonsensical image of the talking, worshiping corporation? It is true that the corporations are the entities required by law to purchase contraception, but unless we believe that this offends the Christian sensibilities of the corporation–and who could believe such tripe?–then plainly what is at issue are the Christian sensibilities of its owners.
Hobby Lobby and Mardel, like the corporations who buy political ads, have numerous employees. Hobby Lobby has 22,000, by this count, and the ACA’s contraceptive mandate only applies to corporations that have more than 50 employees. Thus, truly “small” businesses, like the “sole proprietorship”–the corporation with one shareholder, which is essentially just a single individual doing business–would not be affected by it.
This is a critical point. One could make the argument that Bob Smith’s automobile wholesale business, of which he and one other person are the only employees, should not be forced to purchase contraception because it would violate his personal beliefs. This small corporation is likely so intimately connected to Bob’s life and to his personal finances that it is impossible to meaningfully distinguish between Bob and the corporation. A free exercise claim for the corporation in such circumstances would at least be pragmatic (and more than simply laughable). And, failing that, Bob could assert that his own personal free exercise is violated by forcing his corporation to purchase contraception. Being such a small entity, and being so connected to him, Bob might justifiably win on that claim.
But such a case could never arise under the ACA. The law targets bigger enterprises, for obvious reasons. Hobby Lobby’s Christian owners, the Greens, are not the only people who make their corporation run. Its 22,000 employees are all connected to the business in, if not the same way, a manner that is similar to the Greens. The corporation is their employees’ livelihood just as it is the Greens’ livelihood. And without its employees, the corporation would crumble instantaneously.
Large Corporations Are Bigger Than Their CEO
So why is it that the Christian owners of the company should be entitled, by availing themselves of the bogus legal fiction–which the 10th Circuit thought compelling–that corporations are religious persons, to subject all 22,000 employees to their preferred doctrines of the Christian faith?
Why should all female employees of Hobby Lobby and Mardel be denied access to health coverage that our nation’s democratically-elected leaders have determined is an obligation for all corporations with more than 50 employees to provide, just because the owners of these companies are Christians?
Are workers utterly expendable, parasitical elements, whose stake in the corporation are to be systematically ignored even when their contributions to its success are essential?
They can’t, they shouldn’t be, and they aren’t.
If we have to tolerate the baffling image of a pious corporation, its faith should not be determined solely by reference to the religion of its owners, because it is not the owners alone who comprise the corporation. At the least, corporate religious faith should be an amalgamation of the spiritual beliefs of all its employees. Impossible? Perhaps–but that is for the best. Corporations don’t have gods.