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Some Advice for Liberals....

...from Ross Douthat about religious freedom.

"The entire conflict between religious liberty and cultural liberalism has created an interesting situation in our politics: The political left is expending a remarkable amount of energy trying to fine, vilify and bring to heel organizations — charities, hospitals, schools and mission-infused businesses — whose commitments they might under other circumstances extol.

"So the recent Supreme Court ruling offers a chance, after the hysteria cools and the Taliban hypotheticals grow stale, for liberals to pause and consider the long-term implications of this culture-war campaign." NYTimes Sunday OP-ED

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Once again, it's necessary to point out that some women take the birth-control pill for reasons other than to avoid pregnancy.  When Sandra Fluke testified before Congress, she was not speaking on her own behalf, but rather on behalf of a friend who was taking the pill to stem the growth of an ovarian cyst.  The pill was cheaper than surgery to remove the cyst--that is, it was until the pill was no longer covered by the friend's insurance.  

Medical decisions should be made solely by patients and their doctors.  

Tangent:  If you think Hobby Lobby is a rough case, just wait until the recent Louisiana Supreme Court decision hits the media.  A Baton Rouge priest has refused to break the seal of Confession about a child who confessed to him.  She has spoken out about it, so she has lost her right to confidentiality. Looks like a really messy case.  Looks like this one will go to the U.S.Supreme Court too.  I just hope the bishops don't go hysterical about it.  That never helps.

No doubt we'll have later thread on it.

"It might help the author if he understands that ultimately it is not Hobby Lobby's beliefs that are being protected; it is the Greens' beliefs."

Jim-

This may in fact be the crux of the issue.  I, and many liberals, hope very much that the Greens' beliefs are protected.  But Hobby Lobby does not equal the Greens.  The only purpose of having a corporation is to protect those who create it from liability.  That is to say, the state and society are telling these people that they have certain responsibilities lifted from them.  As Barbara pointed out, if I want to sue Hobby Lobby, the Greens' personally are insulated.  I can go after the company's coffers, but I can't go after theirs (at least not directly).

What the Greens want is to have it both ways.  They want to be exempt from certain responsibilities that all of us, as citizens, have, but they don't want any corresponding rights claims to be abrogated with it.  They want to keep all the "good stuff" and be able to hand over some of the "bad."  They want to be insulated from lawsuits and prosecution like a corporation, but they want to have other rights that--until last Monday--were for "walking around people" only. It is exactly that the Greens' rights were never at stake in this--the case title had Hobby Lobby in it, not the Greens--but a fictitous person the Greens invented for their own benefit.  It is the muddy distinction between the two on matters of the "rights" of the corporation that alarms many.  As I said above, I do think there's a difference when these things happen to further a specifically religious goal or build up the common good.  All the good intentions and good actions by the Greens--and I do not question their sincerity--do not change the fact that the corporate structure they chose to enter into has one primary legal purpose, which is not a religious one: to make money.  For you can rest assured, the distinction between the Greens and Hobby Lobby would be mentioned very quickly by them should someone try to sue them directly, rather than the shield corporation, for something.  

If Hobby Lobby went bankrupt the Greens would willingly pay lawyers hundreds of thousands of dollars to avoid having its creditors go after them personally to satisfy its unpaid debts.  That's the "benefit" of the corporate form. 

This is not an untested area of corporate law.  Many people try to pierce the corporate veil, to show that a corporations was not actually separate from the owners who looted it or ran its affairs to the detriment of creditors or other investors.  The Greens are now arguing that Hobby Lobby, for this one limited purpose, is their alter ego, while still prsumably claiming full legal protection for their assets.  But corporate law does not work that way, and really, other closely held corporations might be as alarmed at the implications of this suit as anyone else is. 

Barbara raises another question for me to Jim's point about this being about the Greens' beliefs, not those of Hobby Lobby.  I presume that the money to pay for the case came out of Hobby Lobby coffers, not the Greens.  If what Jim says is true, this doesn't seem like a correct allocation of funds, unless there is really no corporate veil in the first place.  

Interesting survey results from GlassDoor.

Over 300 employees at each company were polled across hundreds of employers in the US on a five point scale - 5 being very satisfied.

Some results:

- Hobby Lobby had a 2.4 average score (below the US average and well below Costco's 4.2)

- Negatives - employ large number of part time workers who are paid much less than the stated $15 an hour  minimum

- Poor customer service - it is not a focus

- Employees are not supported in terms of career goals

- Company is not very flexible when family emergencies happen

Couple this with the already stated and linked to research and investigations that underline:

- Hobby Lobby's 401K plan is invested heavily in the very pharma companies that make and sell Ella, IUDs, etc.

- Until 2012 Hobby Lobby covered these very contraceptives

- 10% charitable giving - the information about the millions of charitable giving to Gothard's cultic Life Institute

- Sundays closed......sounds great unless you are a part time worker and lose Sunday as a paid work day and thus have your work hours cut back  (wonder if anyone has investigated how many of the part time workers are minimum wage, only job, and living on food stamps/rent subsidies; how many are single moms; etc.)

Question for the legal beagles: Before the decision came down, much was made of the kind of coporate law under which Hobby Lobby was organized: family-owned, closely held, not traded, etc. I detect in the legal comments a sense that that has no bearing on the decision--at least in your opinions. Yes? No? Explain

Bill de Hass, thanks for looking up the info. GlassDoor.com info has to be taken with a grain of salt; often it's the folks with axes to grind who post over there. But I remain concerned about companies that claim to provide good wages and benefits for their full-time employees, who represent a very small percentage of their total workforce and then screw part-time workers. 

Margaret:  Here is a reasonable explanation of some of the issues.  http://online.wsj.com/articles/hobby-lobby-ruling-begs-question-what-doe...

However, it's important to understand that "closely held" is an IRS designation; most corporations that claim it are regular business corporations under state law -- as are non-closely held corporations.  In deciding this case, it's like the Supreme Court forgot everything they learned in business associations class during law school. 

Margaret--

My biggest issue is, as I read the decision, there is nothing in principle that holds these kinds of findings to a closely-held corporation.  In this case, Hobby Lobby is one, and thus it applies to these. Yet why it should be limited to these only is not discussed in the decision.  And since this Court seems to enjoy expanding the rights of corporations, there is no reason why I believe that it would stay so limited, other than the practical matter of figuring out how larger corporations could even make the claim in the first place.  Yet, if they could figure out a way, nothing about the current Court majority makes me think that the distinction between closely-held and not would hold for long.  

I'm not quite sure why people want to take away the Greens right to run their business in what they believe is a moral manner simply because it is incorporated.  Yes, that limits their personal liability should the company fail, but it protects any number of other activities that they might be involved with as well.  For example, if they owned two unincorporated businesses, the failure of one could drag down the other as well, affecting all the stakeholders in the second company as well.  But would you please explain why the Greens cannot bring their religious interests into the marketplace?  If I'm not mistaken, there are any number of encyclicals which require just that.  Do these only apply to sole proprieters, partners, employees and customers but not corporate shareholders?

Bruce, they should not apply there either, but it is particularly crazy to apply them to corporations, because it is simply bedrock law that a corporation IS NOT THE SAME THING as its owners.  A "share" is a unit of business held by a person; it is not the shareholder itself or herself.  It's separate, distinct.  That's why people invest in corporations, to create something that is not them so that when it fails they don't lose their own personal assets, savings, house, retirement plan, etc.  To pick and choose when you are the corporation brings a level of unpredictability into this equation that business owners normally hate.  It can be used against them as well as by them.  

So while the Greens, as owners can control the business, the business itself is distinct from the Greens in terms of its own status as a legal entity that has to comply with laws.  Controlling something isn't the same thing as being something.

Andy and Barbara, thanks - I think I understand the argument now: if the Greens can create this separate corporate construct to shield them from liability, then shouldn't the same construct create a degree of separation between their personal religious beliefs and the corporation's employee benefits?  Did I state that correctly?

By the same token, I suppose we could ask, should the same corporate construct prevent an owner from extracting profits (dividends) that were earned, not by the owners, but by the corporation?

Yes, you stated it correctly.  The corporation does get the earnings.  Closely held corporations are different from other business corporations in that the earnings are attributed to the owners, whose tax liability includes the earnings they take from the corporation.  They are business corporations just like others, but their tax status has some features of partnership taxation.  Please don't make me pass an exam on this.  The point is, "closely held" is mostly a tax status, with other features of corporate law being the same.

How would the Greens' religious liberty be curtailed? A person does not have a natural right to enter into whatever contracts that they wish. The government has the power to regulate our commerce, including employment contracts. A group claiming a religious belief does not take away that power even if the belief is sincerely held.  The proper forum for weighing their claim of religious burden is the political process. 

Ryan - the Greens' religious liberty was curtailed precisely as they described it.  And apparently the Supreme  Court agreed.

In a sense, their claims were weighed already via the political process when RFRA was passed and signed into law.  Then, under Obamacare (also passed and signed into law), the executive branch issued regulations that seemed to conflict with the Greens' rights preserved under RFRA.  The Court sided with the Greens.

Jim P. I was hoping that by now you would see that the Greens' religious liberty is not involved at all. The Supreme Court was ruling on Hobby Lobby's religious liberty. (At least the majority was; the dissenters may have been making you error.) If the Greens had their stock in General Motors, instead of Hobby Lobby, they would be denied their religious rights -- in your construct -- just as all stockholders in non-closely held corporations are.

The court pitted the religious liberty of a closely held corporation against the civil rights of its employees to get what the employees consider health care coverage in the same way that most Americans are going to get it. The court found in favor of the corporation. Some of us liberals and non-liberals find that jaw-dropping. But we have been getting over it since we found out that corporations have voting rights that we natural human beings don't share.

Look, the main problem here is the inability to understand one thing, and that is, a corporation is a creature of  statutes.  It's not a person and so it should not have personal rights.  The Supreme Court actually got this right in a case involving an assertion by a large corporation that it had a right of privacy under FOIA, distinct from proprietary trade secrets.  Congress (or states) could extinguish the existence of all corporations tomorrow if they felt like it.  The owners of those entities might have some rights but the entities themselves? 

The harder cases are agglomerations (associations) of people into entities that are a reflection of their own religious identity, and the way we know that is that they are not run for the profit of their "owners."  We might be able to live under a different construction but that's the one we have created for ourselves, until this decision. 

An article by Posner in Slate makes the case well. I agree with the author that Alito, no question, has a stronger argument than Ginsberg.

Justice Ruth Bader Ginsburg, writing in dissent, says that corporations don’t “exercise” religion. Alito makes the better argument. Once Ginsburg says that “the exercise of religion is characteristic of natural persons, not artificial legal entities,” she gives away the game. A church is an artificial legal entity.

Isn't he correct. Theological glosses aside, isn't that exactly what a church is? An artifical legal entity?

Second, does the feds’ contraception mandate substantially burden Hobby Lobby? This is the most important part of the case. Alito interprets RFRA to impose what lawyers call “strict scrutiny,” meaning that a statute or regulation survives RFRA only if the government can show that its interest is “compelling” and the statute or regulation “is the least restrictive means of furthering that compelling governmental interest.” Lawyers know that strict scrutiny tolls the bell of doom for the government. Hardly anything survives strict scrutiny. Once Alito takes this step, the outcome is predictable. He doesn’t even consider whether the interest in ensuring insurance coverage of the four contraceptives is compelling because there are obviously alternatives that would not burden Hobby Lobby.

And he is correct on that point as well. Obviously the government could have come up with alternatives. Funding it directly through taxation is an obvious one. How is it the court's problem that congress cannot agree? They agreed 97-3 on the RFRA. So, live with it!

Tom - if the Greens' religious principles aren't transferrable to the corporation in some way, shape or form, then I'm flummoxed again.  To say that a corporation has principles apart from its directors or owners is like saying that a tin can has principles.

Barbara, I get that Hobby Lobby is not a person, and that the Greens and Hobby Lobby are two different legal entities.

But, just playing Devil's Advocate here, doesn't the fact that such a thing as a "closely held company" was invented in the first place speak to the notion that some owners are less extricably linked to the companies than others?

And isn't that the thinking in the majority opinion: Force Hobby Lobby to pay for contraception and you're essentially making the Greens, who control all the company's assets, pay for it. It's their company, ergo their money, not the money of thousands of stockholders and board members?

I understand the distinction between the Greens being forced to pay for contraception insurance out of their own salaries from the business vs. the business being liable, as a non-religious entity, for following federal mandates. But when the Greens own the whole she-bang, it's harder to say that the money doesn't come out of their pockets directly.

I guess the other side of the coin is that once the business exists, it doesn't matter if only one person takes money out of the business or several thousand do--if you're not affiliated with the mission of a religious organization, you have to follow the rules as they stand.

Ann

 

My understanding of that case is that the girl testified that she had gone to confession and that the church was saying that she had to keep the contents of her confession confidential. I think that this is incorrect. She is quite free ot disclose when and where she confessed.

the Church filed its motion in limine, seeking to prevent the plaintiffs from "mentioning, referencing, and/or introducing evidence at trial of any confessions that may or may not have taken place" between plaintiffs’ minor child and the priest, while the priest was acting in his official capacity as a Diocesan priest and hearing confession from his parishioner. The trial court denied the motion, finding the testimony of the minor child regarding the confession was relevant and, certainly, as the holder of the privilege, she was entitled to waive it and testify. However, the trial court "did recognize the conundrum with which [the priest] is presented, and I know his solution to that is going to be that he is not going to say anything about any confession."

It sounds like he gave her some pretty poor advice (according to her testimony). This speaks, again, of the need for good, solid, pastoral training for priests...ugh....But the court is not suggesting that the priest break the seal. I think the finding is correct.

http://www.lasc.org/opinions/2014/13C2879.pc.pdf

 

Look, the main problem here is the inability to understand one thing, and that is, a corporation is a creature of  statutes.  It's not a person and so it should not have personal rights. 

Barbara,

Unfortunately, your view is not the law.  Under the US Code, corporations are considered persons when that word is used in a law, as are a number of other legal entities.  If the legislature wants to refer to human beings, then the term is a "natural person".  So your argument is not with the adjucation of the law but with its legislative construction.

Jean, the problem I have is that "closely held' is a category created by Congress solely to ameliorate the tax burdens of the corporate form for businesses that would probably have been run more on the principles of partnership than of corporations, but want the limited liability (and some other advantages) of corporate form.  So Congress created a mechanism to give these kinds of businesses that elect the status tax advantages (there are some disadvantages as well).  There is, literally, no other distinction between this kind of business form and other corporations.  None. 

To the point being made above regarding Judge Posner, I don't believe that Congress is required to give a church that has employers an exemption.  If Congress chooses to do that, for prudential reasons (not to put organizations on the spot) then I certainly don't think that, having given such an exemption, anyone who feels the same way as the church has a right to the same exemption, and certainly not for the corporation that they happen to own a majority of the shares in, and certainly not in areas where they are given substantial tax advantages, when they provide benefits according ot minimum standards.  They want the tax advantages and the protection from liability but they want to take them on terms not available to the general public, and to the detriment of the people who were intended to be benefited by the provision of those tax advantages to begin with (their employees).  And oh by the way, they save a pile of money for themselves, so that they can make even bigger investments in the pharmaceutical company that manufactures the IUD, no doubt.

The Greens had no objections to any form of contraception before the ACA was passed. 

I guess the other side of the coin is that once the business exists, it doesn't matter if only one person takes money out of the business or several thousand do--if you're not affiliated with the mission of a religious organization, you have to follow the rules as they stand.

Jean,

I think this argument misses the point that religious rights are among those considered unalienable.  Even the Catholic Church recognizes that people have religious freedom as an unalienable right.  As a result, the holder cannot give it away, nor can anyone (including a government) licitly take it away, either freely or by coercion.  

Also, no institution can operate for long without the cash coming in exceeding the cash going out.  Non-profit or charity doesnt imply that its revenues dont exceed expenses, but rather that the government has decided to tax the organization in a different manner.  The reason for that tax treatment may be religious, but in many cases its not.  So profit/non-profit doesnt capture any information about the religious principles which underly the operation of the business.

 

Bruce, they should not apply there either...

 

Barbara, This just creates a huge area of people's lives where they are free of any moral obligation:  Its the corporation, I was just doing what it told me.  While the corporate veil might be acceptable for the disposition of assets and liabilities, I dont think it works for moral claims.  

Bruce, even non-profit corporations run as tax exempt entities have to obey the law unless someone gives it an exemption.  Congress gives religious organizations exemptions from certain kinds of laws, like the ministerial exception under Title VII, to avoid excessive entanglement in religion, which would be a real constitutional problem.  But the further you get away from laws that affect "how the church governs itself as a church" and start looking at the various ways in which the church structures activities that are run as businesses, like hospitals, the constitutional rationale for such exemptions becomes tenuous, and there is an argument that in some cases the "exemption" starts to look like a problem under the establishment clause.  In any event, there is no rationale related to "excessive entanglement" when you aren't even dealing with an organization that is a church, like Hobby Lobby.

Bruce:

At the risk of enormous thread drift here....

Even the Catholic Church recognizes that people have religious freedom as an unalienable right

 The Declaration on Religious Freedom (Dignitatis Humanae) certainly stated that, however, that was a departure (pace Ratzinger/Benedict XVI's hermeneutic of continuity) from traditional teaching.

Religious freedom, in turn, which men demand as necessary to fulfill their duty to worship God, has to do with immunity from coercion in civil society. Therefore it leaves untouched traditional Catholic doctrine on the moral duty of men and societies toward the true religion and toward the one Church of Christ.

 

 

"...if the Greens' religious principles aren't transferrable to the corporation in some way, shape or form, then I'm flummoxed again.  To say that a corporation has principles apart from its directors or owners is like saying that a tin can has principle."

Jim, I don't want you to be flummoxed. I just want you to recognize that the case was "Burwell v. Hobby Lobby," not "Burwell v. the Greens." As I tried to point out, the Greens have absolutely no religious liberty rights they can assert on the basis of their ownership shares in any corporation but Hobby Lobby -- or Dell, if they should choose to buy out the principle owners of that. If the Greens took their Hobby Lobby investment to General Motors, their religious liberty rights based on investment would become exactly none.

The right resides in the corporation, not the persons. That is the court's position. If I were to buy out the Greens (so they could put their money in GM), I would personally gain no religious rights and the Greens would lose no religious rights. Those rights would remain with Hobby Lobby.

 

Maybe that wasn't clear enough. Let me try it this way. If the Greens were to shift their investment to GM, they would no longer have the religiuous right to decide thay what the FDA says is a contraceptive is, in fact, an abortifacient. And they would no longer have the religious right to tell their employees to buy their own pills. You and I, Jim, have religious rights now, but we do not have those religious rights. Those rights can be exercised only by closely held corporations. All persons are equal, but corporate persons are more equal than others.

I don't know how a tin can would get principles, but if Justice Alito and four peers find that tin cans have them, I guess that would settle it, whether or not you or I can understand how.

even non-profit corporations run as tax exempt entities have to obey the law unless someone gives it an exemption

Barbara,  Thats the whole point.  The RFRA did give the Greens and Hobby Lobby an exception.  And Congress explicity considered whether it applied to corporations.  See here

http://www.vanderbiltlawreview.org/content/articles/2014/03/Laycock_Resp...

And to bring things back to the original point, I think that is what Ross Douthat is trying to say.  Liberals (his term) like the way these people generally act but abhor giving an exception to the sacroscant contraception regulation (actually 4 allegedy abortifacient drugs).  Be careful what you ask for because there maybe alot of unforseen negative ramifications.

 Let me try it this way. If the Greens were to shift their investment to GM, they would no longer have the religiuous right to decide thay what the FDA says is a contraceptive is, in fact, an abortifacient. 

Right.  I think.  Sorry - I can't tell if we're having a dispute about this or not.  If the Greens buy a piddly $10 million or so in GM stock, then their personal religious views regarding morning-after pills is not transferrable to GM nor the benefits it offers its employees.  On the other hand, if the Greens buy the whole dang company, lock, stock and  barrel, then suddenly GM is "closely held" and presto! their views are transferrable to the company and its benefits packages.  Whether or not we agree that this is consistent and fair, it is, as of last week, how the world works, at least in the US.

Someone mentioned that this could become an expansive right - expanding from "closely held" to other types of for-profit corporations.  Thus, Carl Icahn goes out and buys 20% of GM's stock, which may be enough de facto for him to take control of the board of directors, which in turn gives him control over executive appointments and, if he is hands-on, its corporate policies.  Then, all the tens of thousands of GM employees could be subject  to the religious whims, if any, of Carl Icahn.

Bruce, until this week, the law never recognized a for-profit corporation as a religious institution. 

Bruce,

The Greens can bring their religious beliefs into the marketplace. What I object to is the demand that their religious beliefs have the final say in how the marketplace operates.

Jim Pauwels,

I have difficulty imagining governing under the constraint of having to satisfy strict scrutiny the moment anyone raises a religious objection.

Barbara,

A corporation is a type of legal person. That is what allows it to own property and sign contracts on its own rather than just as an extension of its owners. However, that doesn't mean that it has the full range of rights that a human has.

George D,

Doesn't that analysis skip over the question of whether it is a substantial burden?

Ryan:

Addressed by Alito on p. 31 - 35 (too long to cut and paste)

http://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf

Barbara,

I agree with your point about rights versus prudence. I believe Congress could have required even churches to include coverage of birth control in their insurance. The decision provide an accomodation was prudential and political.

Bruce,

The right to religious liberty isn't unlimited. People are free to believe whatever they want and for the most part practice as they wish, but they aren't free to exempt themselves from taxes, laws, and regulations by asserting a religious belief.

George D,

My question was actually addressed in the following section (whether the remoteness of the objectionable aspect makes it legally not a burden).

After reading that section, I assert that paying taxes that go to paying Alito's salary is a substantial religious burden for me. I challenge the government to demonstrate that the current system is the least restricted means and narrowly tailored to acheive a compelling government interest.

Ryan:

By all means:

"Whenever any form of government becomes destructive of these ends [i.e., securing inherent and inalienable rights, with powers derived from the consent of the governed], it is the right of the people to alter or abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness."

That's a quote from Jefferson. Of course, when I said in another thread that I am loyal to the people of Canada and not its institutions, I was informed that whatever my view, this was not Catholic.

And, I think the tea party, libertarian folks have adopted him, so I guess the Commonwealers will have to get in line!

Here's to you Mr. Jefferson

Whatever you think of Mike Church's politics, a pretty creative guy eh!

I refuse to adopt a slaveowner as a symbol of liberty.

Bruce, until this week, the law never recognized a for-profit corporation as a religious institution. 

Perhaps that formal recognition hadn't been tendered until last week, but there can be no doubt that in fact many firms operated from religious tenets.  Essentially, the Court last week simply confirmed the rights of owners to do something that presumably has already been done for hundreds of years.

 

OK....How about Peter Griffin

http://www.youtube.com/watch?v=ap-tSd5aulM

No, Jim it's not a "right."  It was an interpretation of a statute, and it is a statutory privilege, not a constitutional right.  If you did not understand that previously.

 People are free to believe whatever they want and for the most part practice as they wish, but they aren't free to exempt themselves from taxes, laws, and regulations by asserting a religious belief.

Ryan,

You are correct, they cannot exempt themselves.  But they can go to court and assert that Congress did not have the right to make the law in question because under the Constitution Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof... 

In this case, Hobby Lobby and the Greens availed themselves of the right to have the dispute adjudicated by the courts.  The court didnt need to reach the Constitution because the Congress had enacted a law, the RFRA, which provided the answer.  But religious freedom is clearly a right and we dont know how the case would have been decided absent the RFRA.  Hobby Lobby might still have won.

Further, from what I have read, had the contraceptive provision been included in the actual Obamacare legislation, the law likely would have never been approved by Congress.  Lets remember that the contraceptive provisions are a regulation developed by HHS.

You might find this interesting

 

It would be quite natural for those influenced by Judaism or Catholicism to reject the idea that religious people cannot come together and form a public businesses with a corporate religious identity. It would be difficult for these traditions to imagine a religious identity could be anything but corporate, just as it would be difficult for both traditions to check their faith at the door of their offices and in effect admit that this public activity operates by a different set of rules. It would be an admission that they serve two masters.  

The full article is here

http://catholicmoraltheology.com/after-hobby-lobby-persistent-confusion-...

Thanks Bruce. An interesting analysis. But I think Camosy's laying responsibility for the critiques of the Court decision at the feet of Protestants is an over-generalization, maybe a gross generalization.

Camosy: "This view may resonate with many Catholics and Jews, but as the colleague who wrote me suggests, this isn’t exactly the understanding of religion espoused by a significant number of individual- and privacy-centered US Protestants. And it is this view of religion that has been running the show for multiple generations when it comes to our culture’s dominant understanding of religious freedom."

Aren't the Greens Protestants? Multiple generations? What? Going back to the Mayflower? U.S. secular culture may have its roots in certain Protestant ideas, but secular America seems to be full of Catholics and Jews who are "individual- and privacy-centered."  Many of them have commented on this post! Whatever else secular America may be, it seems to be quite ecumenical.

Bruce, thanks for the link to that Charles Camosy piece - it's very strong.

Barbara, Tom, Andy - Camosy makes a salient point: if corporations represent a degree of separation between a corporation's owners and the liability that the corporation incurs, and that degree of separation should also (in your view) insulate employees from the owners' religious beliefs, then does not that degree of separation also insulate owners from any obligation to pay the corporation's employees a just wage?  

Or, if you insist that the barrier between the owners and the corporation is insuperable, then let me pose it this way: if a corporation is not able to possess any religiously-founded principles, then it seems to follow that the corporation is also not able to possess any moral obligation to pay its employees a just wage.  Either a corporation has moral rights and obligations, or it doesn't.  Does a corporation have a moral dimension or not?

 

Jim--

I wouldn't say that the corporate veil "insulate[s] employees from the owners' religious beliefs."  I have no problem with Hobby Lobby being closed on Sunday, paying a "just wage" (though 31,000 dollars a year, at least in some areas--Boston comes to mind--is iffy on that score, especially if one is trying to raise a family.  But we'll leave that aside).  The issue is about religious EXEMPTION and accomodation from generally applicable laws.  The Greens can set corporate policies within the law as they see fit, as can any other company--basing them on religious, philosophical, economic, or whatever other principles they see fit.  That they use religious and moral principles in that is laudable. The question, though, is how much should they be accomodated when these principles come up against generally applicable laws, and why?  As Cathleen Kaveny points out in a link that Camosy provides to Commonweal (and I think that his argument would be stronger had he engaged with some of these concrete concerns: his argument remains too abstract, to my mind, for a conversation about concrete decisions about law), Alito has greatly expanded the scope of RFRA, without discussing the principles of application.  This is going to cause years of litigation and, frankly, legal chaos on these matters.

Honestly, I think what this whole conversation boils down to is, if we grant that religious accomodations to broadly applicable laws can and should be given, and I do, where are the lines? I have said that there is a distinction between a not-for-profit corporation whose primary activity is furthering specifically religious ends (and I construe these broadly: hunger, poverty, war, etc.).  I argue that for-profit corporations have their primary purpose as making money, and that within that there are many laudable ways that religious and moral claims matter, but that for purposes of accomodation, going to for-profit and simply not-for-profit is a bridge too far for religious exemptions.  You disagree.  But where is the line to be drawn?  Closely-held?  If so, what is the difference in principle between this and larger for-profits (Alito doesn't do anything but assert this, but certainly doesn't argue it).  Where does accomodation stop being about ensuring the rights of some, and becoming impinging on the rights of others?  

Not sure I agree entirely with Camosy's reading of the Catholic tradition (especially since the middle ages and Aquinas).

 Implicit in these rules is a sense that a “secular” discourse, evacuated of all explicitly faith-based content, is somehow more objective, more rational, more convincing. It is therefore more appropriate for the public sphere. Explicitly faith-based approaches are not appropriate for serious academic institutions and for evaluation of federal laws by serious Supreme Court justices because such approaches are beholden to faith based first principles.

In many, many instances related to social justice, the Catholic church drew on the natural law tradition. Not that natural law is completely convincing, however, the overarching point is that many points of goodness and virtue are accessible by natural reason and do not require supernatural revelation. It goes back to the entire nature/grace distinction and how grace builds on nature. It seems to me that it is more important than ever to articulate religious faith in a natural context. For the vast majority of issues, this suffices.

 I argue that for-profit corporations have their primary purpose as making money,

Andy, The government defines which corporations are operating for-profit or non-profit under the tax laws.  The definition has nothing to do with religion and is likely only loosely-related to 'good works' (Think of the brouhaha about campaign expenditures by 501(c)4 non-profits).  That effectively means the government is defining who gets religious freedom.  Under that construct, no one can claim their rights are being infringed, so effectively they have no rights.

Profit/non-profit is not synonymous with not-religious/religious.  The world is messier than that.

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