Corporations and the “free exercise” of religion – response to David Post

July 10

Co-blogger David Post argues that the Supreme Court’s decision in the Hobby Lobby case was not only wrong but “a pretty ghastly bit of legal reasoning.” He argues that for-profit corporations are not protected by the Religious Freedom Restoration Act because they cannot “exercise religion.” Even if they could do so, he does not understand “how (in heaven’s name, if I may) does the mandate burden the corporation’s “exercise of religion”…[i]n any way whatsoever, let alone ‘substantially’ (as required by RFRA).” Both arguments are flawed, and both would have set a dangerous precedent had the Supreme Court accepted them.

How People Exercise Religion through For-Profit Corporations

On the first point, David writes that “I have a great deal of trouble understanding how a for-profit corporation “exercises religion” at all, given that it lacks so many of the attributes of individual human beings – such as a ‘conscience,’ a ‘belief structure,’ a ‘sense of mortality,’ a ‘sense of the divine or the sacred,’ a ‘moral code,’and so on – that I have always thought were indispensable components of the exercise of religion.” It is true that for-profit corporations lack all these attributes. The same, of course, is true of religious non-profit corporations, as well. Yet everyone (including the Hobby Lobby dissenters), recognizes that the latter can nevertheless “exercise religion” because, although the corporations themselves lack a “conscience” and other attributes listed by David, the people who own and manage them do. As Justice Samuel Alito pointed out in his majority opinion in Hobby Lobby, “[a] corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people… who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people.”

Some jurists, including the Hobby Lobby dissenters, argue that for-profit corporations differ in this respect from nonprofits because the only goal of the former is to make money. I addressed this objection in my previous post on Hobby Lobby, where I pointed out that the law allows for-profit firms to pursue a wide range of objectives, including moral and religious ones; in addition, even firms whose only goal is profit can and often do abide by moral constraints on the pursuit of that goal.

Had the Court ruled that either corporations in general or for-profit ones specifically cannot “exercise religion,” it would have led to the gutting of legal protection for religious freedom in numerous commercial contexts. Notice that both lines of reasoning apply not only to RFRA but to the Free Exercise Clause of the First Amendment. Work preformed by and for for-profit corporations is a major part of modern society. People should be able to exercise their religious freedom when owning and operating such entities no less than other organizations.

Why the Contraception Mandate Burdens the Free Exercise of Religion

David’s second objection fares little better. David finds it difficult to understand how the contraception mandate “burdens” Hobby Lobby’s exercise of religion. He believes there has not been any infringement on free exercise because the corporation can still “hold the beliefs it once held” and “worship as it chooses to worship”; also, it has not been “punished for holding those beliefs” and “the government [has not] treated those with other beliefs preferentially.” Perhaps I am missing something. But I don’t find the question that bothers David very difficult at all. If the law requires you to do something that your religion forbids, it has clearly burdened your free exercise of that religion. The owners of Hobby Lobby and Conestoga Wood have religious beliefs that forbid paying for certain kinds of contraception; they are therefore burdened by a mandate requiring them to violate that commitment.

Under David’s theory, a law requiring all restaurants to serve pork would not burden the free exercise of religion by Orthodox Jewish and Muslim restaurant owners. After all, these Jews and Muslims can still hold the beliefs they once held and worship as they choose to worship. Nor have they been punished for holding those beliefs, or been the victims of preferential treatment towards restaurant owners who have no religious objections to pork. Notice that this part of David’s argument applies to individuals, partnerships, and nonprofits, no less than for-profit corporations. If it is not a violation of the free exercise of religion to require people to do something their religion forbids, then it is not a violation for any person or organization.

David worries that this aspect of the Court’s reasoning will lead to a dangerous slippery slope. Since RFRA and state-level analogues have been around since 1993, and it was well understood during all that time that a mandate that requires violation of religious duties is covered by it, it seems very unlikely that such a slippery slope will actually occur. Certainly, it hasn’t even come close to happening so far. Most likely, such slippage has been forestalled by the requirements that the belief in question must be genuine, the burden imposed on its exercise “substantial,” and that the mandate is not the “least restrictive” means necessary to achieve a “compelling government interest.”

Finally, David is concerned that all the justices in the Hobby Lobby majority were Catholic men, and he believes that the lack of female and non-Catholic signers is “pretty awful” optics. As David Bernstein points out, the disagreement on the Court is about legal and political ideology, not religious affiliation and gender. The fact that the majority justices are all Catholic men is no more “awful” than the fact that all three of the Jews on the Court were in dissent.

However, I will do what I can to set David’s mind at ease on this point: I am an atheist. I have no sympathy for moral or religious objections to contraception, whether they be objections to nearly all forms of contraception (as in the case of various Catholic organizations) or just some (as in the case of Hobby Lobby). Nevertheless, I agree with the decision in Hobby Lobby. The same is true of most other conservative and libertarian jurists and legal scholars, both secular or religious. Moreover, as prominent liberal law and religion scholar Doug Laycock explains, until recently many liberals (including those who had a role in drafting and reconsidering RFRA in the first place) also agreed that protections for religious freedom can extend to profit-making organizations. In recent years, the debate over religious exemptions has divided left from right in a way that was less common 15-20 years ago, when both liberals and conservatives supported strong exemptions. That change is an unfortunate development. But it is nonetheless primarily a conflict over political ideology, not the personal religious commitments of judges.

UPDATE: I have made some modest changes to this post, in order to increase clarity.

Ilya Somin is Professor of Law at George Mason University. His research focuses on constitutional law, property law, and popular political participation. He is the author of "The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain" (forthcoming) and "Democracy and Political Ignorance: Why Smaller Government is Smarter."
SECTION: {section=national, subsection=null}!!!
INITIAL commentConfig: {includereply=true, canvas_permalink_id=washpost.com/8bvh5zpd9k, allow_comments=true, commentmaxlength=2000, includeshare=true, display_comments=true, canvas_permalink_app_instance=m6yzjj840m, display_more=true, moderationrequired=false, includefeaturenotification=true, defaultsort=reverseChronological, canvas_allcomments_id=washpost.com/km4ey0dajm, comments_period=14, includevoteofftopic=false, allow_videos=false, includesorts=true, markerdisplay=post_commenter:Post Commenter|staff:Post Writer|top_commenter:Post Forum|top_local:Washingtologist|top_sports:SuperFan|fact_checker:Fact Checker|post_recommended:Post Recommended|world_watcher:World Watcher|cultuer_connoisseur:Culture Connoisseur|weather_watcher:Capital Weather Watcher|post_contributor:Post Contributor, childrenitemsperpage=3, includeheader=true, includeverifiedcommenters=true, defaulttab=all, includerecommend=true, includereport=true, maxitemstop=2, source=washpost.com, allow_photos=false, maxitems=7, display_ugc_photos=false, includepause=true, canvas_allcomments_app_instance=6634zxcgfd, includepermalink=false}!!!

UGC FROM ARTICLE: !!!

FINAL commentConfig: {includereply=true, canvas_permalink_id=washpost.com/8bvh5zpd9k, allow_comments=true, commentmaxlength=2000, includeshare=true, display_comments=true, canvas_permalink_app_instance=m6yzjj840m, display_more=true, moderationrequired=false, includefeaturenotification=true, defaultsort=reverseChronological, canvas_allcomments_id=washpost.com/km4ey0dajm, comments_period=14, includevoteofftopic=false, allow_videos=false, includesorts=true, markerdisplay=post_commenter:Post Commenter|staff:Post Writer|top_commenter:Post Forum|top_local:Washingtologist|top_sports:SuperFan|fact_checker:Fact Checker|post_recommended:Post Recommended|world_watcher:World Watcher|cultuer_connoisseur:Culture Connoisseur|weather_watcher:Capital Weather Watcher|post_contributor:Post Contributor, childrenitemsperpage=3, includeheader=true, includeverifiedcommenters=true, defaulttab=all, includerecommend=true, includereport=true, maxitemstop=2, source=washpost.com, allow_photos=false, maxitems=7, display_ugc_photos=false, includepause=true, canvas_allcomments_app_instance=6634zxcgfd, includepermalink=false}!!
Comments
SECTION: {section=national, subsection=null}!!!
INITIAL commentConfig: {includereply=true, canvas_permalink_id=washpost.com/8bvh5zpd9k, allow_comments=true, commentmaxlength=2000, includeshare=true, display_comments=true, canvas_permalink_app_instance=m6yzjj840m, display_more=true, moderationrequired=false, includefeaturenotification=true, defaultsort=reverseChronological, canvas_allcomments_id=washpost.com/km4ey0dajm, comments_period=14, includevoteofftopic=false, allow_videos=false, includesorts=true, markerdisplay=post_commenter:Post Commenter|staff:Post Writer|top_commenter:Post Forum|top_local:Washingtologist|top_sports:SuperFan|fact_checker:Fact Checker|post_recommended:Post Recommended|world_watcher:World Watcher|cultuer_connoisseur:Culture Connoisseur|weather_watcher:Capital Weather Watcher|post_contributor:Post Contributor, childrenitemsperpage=3, includeheader=true, includeverifiedcommenters=true, defaulttab=all, includerecommend=true, includereport=true, maxitemstop=2, source=washpost.com, allow_photos=false, maxitems=7, display_ugc_photos=false, includepause=true, canvas_allcomments_app_instance=6634zxcgfd, includepermalink=false}!!!

UGC FROM ARTICLE: !!!

FINAL commentConfig: {includereply=true, canvas_permalink_id=washpost.com/8bvh5zpd9k, allow_comments=true, commentmaxlength=2000, includeshare=true, display_comments=true, canvas_permalink_app_instance=m6yzjj840m, display_more=true, moderationrequired=false, includefeaturenotification=true, defaultsort=reverseChronological, canvas_allcomments_id=washpost.com/km4ey0dajm, comments_period=14, includevoteofftopic=false, allow_videos=false, includesorts=true, markerdisplay=post_commenter:Post Commenter|staff:Post Writer|top_commenter:Post Forum|top_local:Washingtologist|top_sports:SuperFan|fact_checker:Fact Checker|post_recommended:Post Recommended|world_watcher:World Watcher|cultuer_connoisseur:Culture Connoisseur|weather_watcher:Capital Weather Watcher|post_contributor:Post Contributor, childrenitemsperpage=3, includeheader=true, includeverifiedcommenters=true, defaulttab=all, includerecommend=true, includereport=true, maxitemstop=2, source=washpost.com, allow_photos=false, maxitems=7, display_ugc_photos=false, includepause=true, canvas_allcomments_app_instance=6634zxcgfd, includepermalink=false}!!
Most Read National
Next Story
Kevin Underhill · July 9