Columbia Professor Philip Hamburger has a typically elegant piece on National Review, exploring some of the deeper issues that are floating beneath the surface of the Hobby Lobby case in the Supreme Court.
It teases his larger piece on SSRN: “Equality and Exclusion: Religious Liberty and Political Process.”
At NRO, Hamburger writes:
Can government treat specialized organizations as having diminished constitutional rights outside their fields of specialization? Can it conclude, for example, that because Hobby Lobby is a business corporation, it has diminished interests in religion, and therefore in religious liberty? From this perspective, organizations devoted to some specialized paths have reduced interests in constitutional rights that the government associates with other paths. Churches, for example, have full religious rights, but not full speech rights, and businesses have complete speech rights, but not complete religious rights.
The effect of this kind of distinction is to curtail the constitutional rights (and associated statutory rights) of Americans when they associate with one another in organizations.
Why is this so troubling? Standing alone, individuals in an egalitarian society are weak in relation to government. But when they associate with one another, as Tocqueville observed, they acquire a shared strength, including the resources, capacity, and courage to develop public opinion independent of government and thereby to defend their freedom.
It would be very dangerous for the Supreme Court to accede to the government’s assumption that specialized organizations are often only specialized persons with only specialized constitutional rights — that is, only partial persons with only partial rights. If government can act on this vision of specialization, it can divide and undermine civil society.
The U.S. Constitution fortunately leaves no room for fractions of persons and fractions of rights; it does not divide up persons and their rights according to their specialized endeavors. And this is essential for the structural protection of liberty, for rights enjoy the broadest support when they belong equally to all legal persons, regardless of their specialized or other identity.
Hamburger then turns to the problem of exclusion:
A second underlying question in the Hobby Lobby case concerns exclusion from the political process. When individuals or groups are denied participation, or equal participation, in the political process, the laws are apt to become oppressive as to them. This poses a serious danger for religious liberty.
As recognized by the Supreme Court in its decision in Employment Division v. Smith (1990), the Free Exercise clause does not generally guarantee a freedom from equal laws on account of one’s religion. Instead, it secures a freedom under equal laws, regardless of one’s religion. In other words, it provides for equality rather than exemption.
Even equal laws, however, can be oppressive. In light of this, the Court in Smith recognized the importance of the political process. Justice Scalia concluded his opinion by observing that the constitutional freedom of religious equality must be understood in the context of the political freedom to seek broader, statutory protections for religion. But religious Americans are severely constrained in their freedom to seek legislative relief from laws that burden religious practice.
First, as Hamburger argues, Americans don’t vote for the administrators who regulate them:
Second, religious Americans are excluded from the political process by section 501(c)(3) of the Internal Revenue Code, which restricts religious, educational, and charitable organizations from campaigning and from much petitioning of government. This exclusion singles out religious and other idealistic organizations for restrictions on their constitutional rights of political speech and of assembling to petition, and it thereby deprives religious Americans of essential channels for minimizing the religious burdens of statutory and administrative constraints.
As with the proposed new IRS restrictions on 501(c)(4) organizations, an increasingly powerful administrative state is telling us that if it doesn’t like what some people have to say, it will restrict the free speech rights of those organizations who might be chosen to speak on their behalf.
In such a world, judicial deference to administrative agencies looks especially unprincipled.
UPDATE: For more, read Hamburger’s larger piece: “Equality and Exclusion: Religious Liberty and Political Process.”