The Supreme
Court will soon decide if CEOs can impose their religious convictions on the
people who work for them.
Slate, Dahlia Lithwick, Aug. 1, 2013
 |
| A pharmacist works at a Safeway pharmacy in Great Falls, Va., in 2009. The Supreme Court will need to decide soon whether corporations with religious objections to providing coverage for birth control could be forced to do so under the health care law. Photo by Hyungwon Kang/Reuters |
Remember
the big dustup last summer over the contraception mandate in President Obama’s
health reform initiative? It required companies with more than 50 employees to
provide insurance, including for contraception, as part of their employees’
health care plans. The constitutional question was whether employers with
religious objections to providing coverage for birth control could be forced to
do so under the new law. The Obama administration tweaked the rules a few times
to try to accommodate religious employers, first exempting some religious
institutions—churches and ministries were always exempt—and then allowing companies that self-insure to use a separate insurance plan to pay and provide
for the contraception. Still, religious employers objected, and lawsuits were
filed, all 60 of them.
A year
later, the courts have begun to weigh in, and the answer has slowly begun to
emerge: maybe yes, maybe no. It all depends on whether corporations—which
already enjoy significant free-speech rights—can also invoke religious freedom
rights enshrined in the First Amendment.
Last
Friday, the 3rd U.S. Circuit Court of Appeals upheld the contraception mandate,
rejecting a challenge from a Pennsylvania-based cabinetmaker who claimed that
as a Mennonite he should not be compelled to provide contraceptive coverage to
his 950 employees because the mandate violates the company’s rights under the
free exercise clause of the First Amendment and the Religious Freedom
Restoration Act. The owner considers some of the contraception methods at
issue—specifically, the morning-after and week-after pills—abortifacients.
The appeals
court looked carefully to the precedent created by Citizens United—the 2010
case affording corporations free-speech rights when it came to election-related
speech—to determine whether corporations also enjoy constitutionally protected
religious freedom. Writing for the two judges in the majority, Judge Robert
Cowen found that although there was “a long history of protecting corporations’
rights to free speech,” there was no similar history of protection for the free
exercise of religion. “We simply cannot understand how a for-profit, secular
corporation—apart from its owners—can exercise religion,” he concluded. “A
holding to the contrary … would eviscerate the fundamental principle that a
corporation is a legally distinct entity from its owners.”
Cowen also
flagged the absolute novelty of the claims, noting that there was almost no
case law suggesting that corporations can hold religious beliefs. “We are not
aware of any case preceding the commencement of litigation about the Mandate,
in which a for-profit, secular corporation was itself found to have free
exercise rights.” Finally he took pains to distinguish the corporation,
Conestoga, from its legal owners. “Since Conestoga is distinct from the Hahns,
the Mandate does not actually require the Hahns to do anything. … It is
Conestoga that must provide the funds to comply with the Mandate—not the
Hahns.”
Judge Kent
Jordan, dissenting at length in the case, said that for-profit, secular
corporations can surely avail themselves of the protections of the religion
clauses. “To recognize that religious convictions are a matter of individual
experience cannot and does not refute the collective character of much
religious belief and observance ... Religious opinions and faith are in this
respect akin to political opinions and passions, which are held and exercised
both individually and collectively.”
The 3rd
Circuit decision creates a significant split between the appeals courts,
because a few short weeks earlier, the Colorado-based 10th U.S. Circuit Court
of Appeals ruled in favor of Hobby Lobby Stores Inc., finding by a 5–3 margin
that corporations can be persons entitled to assert religious rights. Hobby Lobby
is a chain of crafts supply stores located in 41 states. The 10th Circuit
upheld an injunction blocking the contraception requirement because it offended
the company owners’ religious beliefs. The majority in the 3rd Circuit wrote
that it "respectfully disagrees" with the 10th Circuit. A split of
this nature makes Supreme Court review almost inevitable.
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.
Related Articles:
"Recalibration of Free Choice"– Mar 3, 2012 (Kryon Channelling by Lee Carroll) - (Subjects: (Old) Souls, Midpoint on 21-12-2012, Shift of Human Consciousness, Black & White vs. Color, 1 - Spirituality (Religions) shifting, Loose a Pope “soon”, 2 - Humans will change react to drama, 3 - Civilizations/Population on Earth, 4 - Alternate energy sources (Geothermal, Tidal (Paddle wheels), Wind), 5 – Financials Institutes/concepts will change (Integrity – Ethical) , 6 - News/Media/TV to change, 7 – Big Pharmaceutical company will collapse “soon”, (Keep people sick), (Integrity – Ethical) 8 – Wars will be over on Earth, Global Unity, … etc.) - (Text version)
“… 3 - Longer Life is Going to Happen, But…
Here is one that is a review. We keep bringing it up because Humans don't believe it. If you're going to start living longer, there are those who are frightened that there will be overpopulation. You've seen the way it is so far, and the geometric progression of mathematics is absolute and you cannot change it. So if you look at the population of the earth and how much it has shifted in the last two decades, it's frightening to you. What would change that progression?
The answer is simple, but requires a change in thinking. The answer is a civilization on the planet who understands a new survival scenario. Instead of a basic population who has been told to have a lot of children to enhance the race [old survival], they begin to understand the logic of a new scenario. The Akashic wisdom of the ages will start to creep in with a basic survival scenario shift. Not every single woman will look at herself and say, "The clock is ticking," but instead can say, "I have been a mother 14 times in a row. I'm going to sit this one out." It's a woman who understands that there is no loss or guilt in this, and actually feels that the new survival attribute is to keep the family small or not at all! Also, as we have said before, even those who are currently ignorant of population control will figure out what is causing babies to be born [Kryon joke].
Part of the new Africa will be education and healing, and eventually a zero population growth, just like some of the first-world nations currently have. Those who are currently tied to a spiritual doctrine will actually have that doctrine changed (watch for it) regarding Human birth. Then they will be able to make free choice that is appropriate even within the establishment of organized religion. You see, things are going to change where common sense will say, "Perhaps it would help the planet if I didn't have children or perhaps just one child." Then the obvious, "Perhaps I can exist economically better and be wiser with just one. It will help the one!" Watch for these changes. For those of you who are steeped in the tradition of the doctrines and would say that sounds outrageously impossible, I give you the new coming pope [Kryon smile]. For those of you who feel that uncontrolled procreation is inevitable, I encourage you to see statistics you haven't seen or didn't care to look at yet about what first-world countries have already accomplished on their own, without any mandates. It's already happening. That was number three.….”
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