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Tuesday, August 06, 2013

Lithwick on corporations and religious freedom

This piece by Dahlia Lithwick ("All Corporations Go to Heaven") is -- like so much of what she writes -- entertaining and snappily written, but also (in my view) mistaken in places.  Read it for yourself but, for what they're worth, here are two thoughts of mine: 

First, it does not seem helpful to describe the issue presented in the Hobby Lobby case as whether "CEOs can impose their religious convictions on the people who work for them."  The word "impose" suggests, it seems to me, some kind of coercion -- an effort to require another person to affirm what one affirms or to live in accord with one's religious obligations.  Lithwick (like the many others who frame the issue this way) uses "impose" to mean (I think) "act in accord with their own religious convictions, or run their business in accord with those convictions, in such a way that third parties are affected in some way."  But third-parties are "affected" by the exercise of legal and constitutional rights all the time.  Certainly, no employee of Hobby Lobby is, or would be, required by virtue of their employment to affirm what the "CEO" believes or to live his or her own life in accord with the CEO's religious convictions.  The employee would, of course, be affected by those convictions (because he or she would not get free contraception) and the question is whether the government has a sufficiently weighty reason -- one that is weighty enough to justify burdening religious exercise -- for preventing it.

A second thought:  Although I realize that our doctrines and the relevant statutory language put us on this track, it does not seem to me that the question presented in a case like Hobby Lobby (or like Notre Dame's own case) is not "does a corporation have free-exercise rights?"  The better way to think about it, I think, is to look at the relevant state action, and to ask, "is the government acting in a way that burdens religious exercise or violates the no-establishment norm."  The First Amendment, after all, is not (only) a collection of claims or entitlements that individuals and entities have (or don't have).  It's a command to the government:  Don't violate "the freedom of speech"; don't burden the "exercise of religion."

It is obvious that some regulations of corporations violate "the freedom of speech."  And, we can evaluate (and invalidate) such regulations without asking whether corporations have souls, or consciences, or beliefs, or selves-in-need-of-actualization.  It seems equally obvious that some regulations of corporations -- including for-profit corproations -- can burden religious exercise (e.g., "no business corporation may sell Kosher meat") and so can (but might not) violate RFRA or the First Amendment.  Whether or not they do depends, again, on a variety of factors (e.g., the presence of denominational line-drawing or discriminatory intent, the feasibility of accommodation, etc.).

Posted by Rick Garnett on August 6, 2013 at 11:55 AM in Constitutional thoughts, Rick Garnett | Permalink


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Prof. Garnett, saying that "free" contraception is involved when that term is not used by the people in question in other cases of health insurance is a selective cheap shot.

The term "war on woman" is a different animal. If the policies burden the women in question, it might be correct as a matter of effects. It is a rhetorical flourish. The companion term there is "war on religion." I might oppose that on the merits in certain cases, but it is not to me the same sort of "cheap" shot as selectively talking about "free" health care. But, if you oppose "war on religion" too, well, that's consistent.

Posted by: Joe | Aug 7, 2013 11:22:55 PM

Joe -- I am happy to agree that "cheap shots" and other misleading terms (e.g., "war on women") should be avoided all around.

Posted by: Rick Garnett | Aug 7, 2013 1:24:16 PM

It is appreciated that anon's concern was addressed, but it's notable that the loose wording is rather typical in this debate. It is used crudely to try to send the message people are demanding something "free" here in particular. Since the corporation protection argument can be made w/o such cheap shots, it would be useful if the people who support it would correct the people themselves. And, "cheap shot" does suggest the tone repeatedly used. When the tone is more respectful, it still is a problem, since it is again misleading at best.

Posted by: Joe | Aug 7, 2013 1:05:23 PM

Also, the decision revolved around the fact that 'The Hobby Shop' is a legal entity, a for-profit corporation. That entity has to obey the laws.

Posted by: Barry | Aug 7, 2013 11:19:16 AM

“the Court’s cases recognize a basic, common-sense difference between living, breathing, individuals—who think, possess a conscience, and a claim to human dignity—and artificial entities, which are created by the law for a specific purpose, such as to make running a business more efficient and lucrative.” A group of people get together for a purpose. If they incorporate then the group achieves certain legal status that provides protection for the members of the group. However, for all issues where the specific legal protections of incorporation do not apply, what is left is a group of people not some inanimate object. While incorporation did not provide life and breath in the fictional person, reaching beyond incorporation does not somehow transform a group of people into a pile of clay. So the Third Circuit is wrong.

That said, various religions have very strange view about health care. Some believe that any medical care is wrong and that sick people should prey to God to cure them. Some believe that blood transfusions are a violation of God's law. We do not allow individual religious views determine if an employer should provide unemployment insurance, or worker's comp insurance, or Social Security Disability insurance, so why should it determine health insurance coverage? This is true whether the employer is a corporation or is unincorporated. The government decides the coverage. The employer is obligated to pay for a standard policy without regard for what it contains. Meanwhile, the ultimate decision about what health care to obtain is left up to the employee. So the other Circuits are wrong too.

Posted by: Howard Gilbert | Aug 6, 2013 3:26:24 PM

Anon -- I should have said "without cost sharing or co-pays." Thanks.

Posted by: Rick Garnett | Aug 6, 2013 3:01:06 PM

I was open to your argument about the word "impose," but was then jarred by your aside explaining that employees are merely affected by not getting "free" contraception. Health coverage is not "free," and I've never heard anyone suggest that employees who receive comprehensive health insurance - in exchange for their labor and payment of premiums - are somehow getting "free" prostrate exams or "free" cholesterol-lowering drugs.

Posted by: anon | Aug 6, 2013 2:59:52 PM

ETA: I do find Ms Lithwick a bit loose with her analysis, using wit to replace nuance at times, so it's usually helpful to look big picture.

Posted by: Joe | Aug 6, 2013 2:04:03 PM

I think the word "impose" accurate because realistically it would be burdensome for people not to choose to work certain places. If the only way to do so is to lose a benefit, you are being "imposed" upon. The employer's beliefs are burdening the employees. The point was made in U.S. v. Lee, which I find good law & applicable here.

As to the second point, that is one way to look at it, and it might be a better way to look at it (especially if the 3CA's approach is rejected & corporations are "persons" for the purposes at hand etc.). But, if corporations don't have free exercise rights, at least under RFRA, that very well might be a way to look at it!

Posted by: Joe | Aug 6, 2013 2:03:10 PM

I agree completely on the "impose" point. I would like to see a broader study of co-opted libertarian language where utterly inappropriate. Using the word "impose" here either waters down our collective notion of "imposition" and / or else exploits the libertarian impulse in an anti-libertarian fashion.

Not being a libertarian myself, I'm merely making a descriptive point: if "impose" means anything, it needs to have some formal characteristics of the sort you describe, and while you make a valiant effort, I don't think there is any charitable interpretation here. Lithwick knows she isn't dealing with an imposition here and is simply trying to score rhetorical points or obfuscate the law.

Posted by: AndyK | Aug 6, 2013 1:06:50 PM

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