Religious Freedom in the Corporate World

Jul 14, 2014

By Ken Blanchard

It is a charming coincidence that Hobby Lobby is coming to Aberdeen just as the firm is enjoying its moment of national fame. Or infamy, perhaps — the kind that inspires folks who never shopped there before to announce that they are never shopping there again. 

The Supreme Court decision in Burwell v. Hobby Lobby Stores, Inc. generated enough heat on the left to keep the Dakotas warm all winter. I will try to provide a little light. The Court did not say, as many critics say that they said, that corporations are people. It recognized that corporations are legal persons, meaning simply that they have rights and duties under the law. This has been part of law for the last 500 years.

I have written about that once before, but I will add one point here. As Justice Alito noted, corporate personhood is a legal fiction. It is useful to treat a corporation as a single person when you want to tax and regulate it, sue it, or, if it is the New York Times, grant it the freedom of the press. However, corporations are composed of and act solely through people. When you tell a closely held corporation that it has to do something, you are making a small group of natural persons (five or less) do something. Even if corporations don’t have rights, David and Barbara Green surely do.

Almost all the critics of the decision seem to think that it is the job of the nine justices to decide who they like more and what they would like to see happen. It is not. It is the job of the Court to say what the law is. In this case, the law is The Religious Freedom Restoration Act. RFRA (say it like it’s a word and you’ll sound like Scooby Doo) was a response to another controversial decision of the High Court.

The Constitution has two clauses dealing with religion: the Establishment Clause, which means that government cannot compel someone to conform to or profess any religion and the Free Exercise Clause, which means that government cannot prevent someone from practicing or professing a religion. There are two ways to interpret the latter. One way is the Sherbert Test, announced by the Court in 1962. According to that test, when an act of government imposes a significant burden on someone’s exercise of sincerely held religious faith, that government must demonstrate that it has a compelling interest in doing so and that there is no less restrictive way to serve that interest.

The trouble with that test is that it depends on a lot of vague modifiers. What is a significant burden? Which beliefs are sincere? What government interests are compelling? In Employment Division v. Smith (1990) the Court adopted a simpler and, in my view, better test. A law violates the Free Exercise Clause only if it is designed to target a religious belief or practice. So long as a law applies to everyone the same way, regardless of their beliefs, then it constitutional even if it happens to interfere with some religious practice. So a law that said that only Native Americans are forbidden to use peyote and only for ceremonial purposes would be unconstitutional; however, a law that says no one can use peyote for any reason is constitutional, even if inconvenient for traditional practices.

If the Smith test were all that the Court had to go on, Hobby Lobby would have had no case. The ACA contraceptive mandate applies the same way to corporations generally, regardless of religious motivations. It is up to the Administration to decide on exemptions. However, the Smith decision offended both the left and the right (which may have been proof enough that it was correct). Congress passed RFRA almost unanimously when Democrats still controlled both houses, and President Bill Clinton signed it into law. So if you were offended by Hobby Lobby’s victory, now you know whom to blame. 

I am not convinced that RFRA is constitutional. While persons of any religious faith deserve to be protected from hostile legislation, I don’t think that religious faith should give someone special immunities to otherwise valid laws that are not enjoyed by atheists. Until the Court comes around to my way of thinking, RFRA is the law and it looks to me like the Court has read it correctly.

Critics of the decision have flooded the media and the net with horrifying questions. Does this mean that corporations can stop paying taxes if they have religious objections? Does it mean that a human sacrifice cult can now begin cutting throats? This parade of horrors is absurd because we know very well how the principle of law works. It was operative from the early 1960s to the ’90s as a matter of constitutional law. It has been operative on Congress at least since 1993. The courts have routinely balanced the interests of government and religious objections in mostly sensible ways.

In Burwell the Court ruled that the government could easily have found other means to achieve its objective or providing contraceptive care under the ACA. Indeed the Administration has found other means in the case of churches, which are also private corporations. In those cases, the burden falls on the insurance agencies. Alternatively, the contraceptive technologies in question could be directly subsidized. The Administration could have avoided the case by extending to Hobby Lobby the same exemptions it extended to churches. That they did not do so might be because they wanted to show everyone who is boss. Well, now we know. Turns out it’s the law.

Editor's Note: Ken Blanchard is our political columnist from the right. For a left-wing perspective on politics, please look for columns by Cory Heidelberger every other Wednesday on this site.

Dr. Ken Blanchard is a professor of Political Science at Northern State University and writes for the Aberdeen American News and the blog South Dakota Politics.