I’ll take the bait! A reply to Ilya’s response re corporate religionhood

July 10

Co-blogger Ilya Somin has penned a response to my original criticisms of the Court’s Hobby Lobby decision, and several commenters on the original article also raised thoughtful objections to my position, so a general reply is perhaps in order.

On the question of whether Hobby Lobby, Inc. is a “person” capable of exercising religion, Ilya writes:

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. (emphasis added)

I couldn’t agree more!  People should be able to exercise their religious freedom when owning and operating corporate entities — and as far as this case goes, the Hahns and the Greens were entirely unencumbered in the exercise of their religious beliefs.  The mandate imposed no obligations upon them as individuals; its obligations ran to Hobby Lobby, Inc.  So the question in the case isn’t whether people should be able to exercise their religious freedom when owning and operating corporations, it’s whether Hobby Lobby, Inc. is being encumbered in exercising its “religious freedom.”  I don’t think it is, because I don’t think it exercises religion.  Nobody has yet explained to me what, exactly, Hobby Lobby, Inc.’s religion is?  And how do we know what it is?  What are its beliefs?  And how will we determine, as we must under the Court’s guidance, whether its beliefs are sincerely held or not (whatever “sincerity” might mean, applied to a corporation)?  If one of the Green children marries a Methodist, and their children are brought up as Episcopalians, and little Johnny inherits 10% of the Hobby Lobby stock – has Hobby Lobby, Inc.’s religion changed?  What are its beliefs, now?  Which ones are sincere, and which insincere?

Ilya (and many commenters to the original posting) bring up the counter-example of the non-profit religious corporation.  Surely, they say, I have to concede that corporations can exercise religion because we all recognize the existence of non-profit religious corporations; the Catholic Church, Inc., and the Church of Latter-Day Saints, Inc. and the like.  They exercise religion, don’t they?

Well, yes, they do.  People can set up, using this very special vehicle we provide for the task, a corporation that, unlike all others, does have religious beliefs, and does exercise those religious beliefs.  To me, that seems to be precisely the exception that proves the rule.  For these kinds of fictional persons, we embue them with attributes that ordinary corporations don’t have, because they’re special.

Finally, on what I suggested was the more difficult question in the case – viz., whether Hobby Lobby, Inc.’s exercise of its religion was “substantially burdened” by the contraceptive mandate, Ilya writes:

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 by a mandate requiring them to violate that commitment. (emphasis added)

So the question in the case is whether the mandate requires Hobby Lobby, Inc. to do something that its religion forbids it to do.  The current owners of Hobby Lobby Inc. may indeed have religious beliefs that forbid paying (or even buying insurance for others that will pay) for certain kinds of contraception – but that’s simply not the question in the case.  The question in the case is whether Hobby Lobby, Inc. has religious beliefs that forbid paying (or even buying insurance for others that will pay) for certain kinds of contraception.  I suppose that until I know what its religion is, and how I question it as to what its beliefs might be, and how I am supposed to figure out whether its religion actually forbids, or does not forbid, these insurance payments, that question is unanswerable – and nobody (yet) has explained to me how I do any of those things.

 

David Post taught intellectual property and Internet law at Georgetown Law Center and Temple University Law School until his recent retirement. He is the author of "In Search of Jeffersons Moose: Notes on the State of Cyberspace" (Oxford, 2009), a Fellow at the Center for Democracy and Technology, and an Adjunct Scholar at the Cato Institute.
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David Post · July 10