The Supreme Court has long held the free exercise clause of the First Amendment to prohibit governmental regulation of religious beliefs, but a long line of cases holds that not every regulation that inflects upon your religious beliefs is unconstitutional. The Religious Freedom Restoration Act bars the federal government from imposing a "substantial burden" on anyone’s "exercise of religion" unless it is "the least restrictive means of furthering [a] compelling governmental interest." The Obama administration and the judges who have refused to grant injunctions contend that the burden here is insignificant, amounting to a few dollars borne indirectly by the employer to facilitate independent, private decisions made by their female employees. They also argue that they are promoting a compelling government interest in providing preventive health care to Americans. The employers and the judges who have enjoined the birth-control provision claim that they are being forced to choose between violating protected religious beliefs and facing crippling fines and that free or inexpensive birth control is available at community health centers and public clinics.
Basically, the constitutional question will come down to whether a for-profit, secular corporation can hold religious beliefs and convictions, or whether—as David Gans explains here —“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.” Will Baude takes the opposite view, explaining that the 3rd Circuit’s reasoning—that “ ‘corporations have no consciences, no beliefs, no feelings, no thoughts, no desires’ ... would all prove too much, because they are technically true of any organizational association, including ... a church!” Baude likens the claim that corporations can never have religious freedom rights to the claim that corporations—including the New York Times—can never have free-speech rights.
Part of the problem, at least in the case of Hobby Lobby and Conestoga, is that neither corporation was designed to do business as religious entities. It has been clear since the nation’s founding that corporations enjoy rights in connection to the purposes for which they were created—which is why the administration already exempts religious employers whose purpose is to inculcate religious values and chiefly employ and serve people who share their religious tenets. This is about companies that don’t meet those criteria. As the dissenters at the 10th Circuit observed, the fact that some “spiritual corporations” have some religious purposes doesn’t make every corporation a religious entity. And as professor Elizabeth Sepper of Washington University puts it in a new law-review article on the subject: “Corporations, as conglomerate entities, exist indefinitely and independently of their shareholders. They carry out acts and affect individual lives, and have an identity that is larger than their constituent parts. Walmart is Walmart, even when Sam Walton resigns.”
The rest of the problem is self-evident. Where does it stop? Why does your boss’ religious freedom allow her to curtail your own? The dangers in allowing employers to exercise a religious veto over employee health care are obvious. Can an employer deny you access to psychiatric care if he opposes it on religious grounds? To AIDS medications? To gelatin-covered pills? Constitutional protections of a single employer’s individual rights of conscience and belief become a bludgeon by which he can dictate the most intimate health decisions of his workers, whose own religious rights and constitutional freedoms become immaterial.
Religious liberty arguments have been historically advanced in defense of the rights of slaveholders, segregationists, creationism, anti-gay bigotry, and gender inequality. The religious convictions in each instance were indisputably deeply felt and fundamental. That didn’t mean they trumped everything else. As we have advanced as a society—beyond slavery, segregation, homophobia, and sexism—we have worked to accommodate religious belief while pushing for fundamental fairness and equality. It’s never been a perfect accommodation. It can’t be. But religious liberty interests are rarely the only—or even the most important—interests at play. And suggestions that unwilling employers are forcing birth control on unwilling employees misstates the truth: Employees who choose to use contraception (as 99 percent of us will do at some point) shouldn’t do so at the sufferance of their bosses.
In 1982, in United States v. Lee, an Amish employer refused to pay his share of Federal Insurance Contributions Act taxes on his employees, claiming that it violated his own religious belief in individual self-sufficiency. The Supreme Court said he had to pay the taxes regardless because “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer’s religious faith on the employees.” And in a 1990 opinion written by Justice Antonin Scalia, the court held that religious groups bear a heavy burden in overcoming “a valid and neutral law of general applicability.” None of this guarantees how the Supreme Court will decide the contraception mandate. If recent history is any predictor, it may be as fractious as the Affordable Care Act decisions themselves.
The guarantee of religious freedom enshrined in the Constitution was intended to protect fragile minorities from crushing religious burdens imposed by the wealthy and powerful. The notion that secular corporations—created by government to maximize shareholder profits and limit liability—might lay claim to their owners’ human rights of religious conscience is doubly astounding when you consider that their principal reason for being is to dissociate themselves from the frailties of human conscience in the first place.