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The Supremes and Us Print E-mail
By Gerald Russello   
Friday, 06 December 2013

The Supreme Court is finally going to hear arguments on whether the so-called contraceptive mandate implemented by the Department of Health and Human Services under the Affordable Care Act can be imposed against those for-profit companies that believe the mandate unduly burdens their exercise of religious belief.

Dozens of lawsuits are challenging the HHS mandate, which are in varying stages of the legal process, but the Court focused on the question of whether corporations are “persons.” If so, they may be entitled to the protections of the First Amendment and a statute called the Religious Freedom Restoration Act (RFRA), especially if the companies are privately held. This is a complex question for Catholics, and these cases move the debate over religious liberty into the next stage. Whatever the decision, it may not be favorable to believers.

The Court has agreed to hear two cases. In Conestoga Wood Specialties v. Sebelius, the Third Circuit found that corporate employers do not themselves have First Amendment rights to freely exercise the religious beliefs of their founders. So the HHS mandate could be imposed upon such employers. The court held that simply as a “threshold” matter, “for-profit, secular corporations cannot engage in religious exercise.” If religious persons choose to express themselves in a corporate form for the purpose of business, their religious exercise rights do not travel with them.

The Tenth Circuit, in Sebelius v. Hobby Lobby Stores, Inc., which was decided before Conestoga, held the opposite, ruling for Hobby Lobby and similar employers whose religious beliefs conflicted with imposition of the mandate. The Court in that case addressed the requirements of RFRA, and rejected the government’s argument that the law should somehow make a distinction between for-profit and not-for-profit or charitable corporations. The Court found that such a position is not rooted in the First Amendment. Constitutional protections for free exercise, the Court reasoned, should not hinge on the niceties of state incorporation or federal tax law.

Predictably, the idea that corporations may express religious beliefs has fired up liberal elites. Slate’s Emily Bazelon has recently argued that waiving the HHS mandate for private corporate employers would allow corporations to become zealots. Corporations should be limited only to making profits, many on the left are saying, which, as Tim Carney points out, is quite a novel position for them. This move – which would have warmed the hearts of any early twentieth century master of industry – demonstrates how far liberalism has moved from a movement for economic equality to a kind of secular cultural imperialism, based more on elite social attitudes than economic concerns.

Most conservatives, on the other hand, find the reasoning of Hobby Lobby more persuasive. The owners of this family-run business should be able to run it according to whatever religious principles they choose. If the state wishes to impose on those principles, it has to do so within constitutional constraints: the HHS must serve a “compelling government interest,” and be the least restrictive means to further that interest.

The Hobby Lobby court rightly made short work of the government’s feeble assertions that “health” or “gender equality” satisfied the first part. The court further noted that, among other things, the HHS mandate’s grandfathering of plans exempting employers of millions of people from its requirements meant that it was not the least restrictive means to further governmental interests, even if they were “compelling.”

The case raises two questions that are not strictly legal, but which will impact Catholics for the next generation, whatever the Supreme Court’s decision.

First, is the nature of the corporation itself. As Michael Novak and others have argued, the corporation can serve as a bulwark against the state. He argues that corporations can be “instruments of redemption . . . [and] of God’s grace.” As the corporation is where many people spend their working lives, a religious critique should consider the possibility that there are “signs of grace in the corporation,” such as creativity and the protection of liberty.

The social teaching of the Church squarely places corporations as places of community. It is unclear, however, whether Catholic teaching would consider the corporation itself as a “person.” Centesimus Annus indirectly supports the view that corporations should instantiate substantive goods other than the pursuit of profit. Because it is composed of individuals whose flourishing is dependent upon everyone working together towards achieving the good of each, a company must also “contribute to the genuine development of the persons who participate in its activities.”

If this is true, then a corporation should be free to instantiate the religious beliefs of its owners, especially if it is a private company and not bound by some of the restrictions public companies must follow. However, a decision for Hobby Lobby and against the HHS mandate may also see the emergence of atheist corporations, that is, those whose belief system is either indifferent or hostile to religion. The HHS mandate, in other words, will even more deeply entrench cultural divides.

More troubling still is that the HHS mandate frames the discussion of whether religious institutions should be “exempt” from generally applicable rules. Although this is how many Americans, even Catholics, think about these questions, it is a remnant from when much of the country was Christian, or favorably disposed to religion. The difficulty with this way of understanding the constitutional question now is that the state and the cultural elites are hostile to religious faith. Where the earlier understanding was meant to enact a civic peace, the current formulation simply concedes that the state has plenary power, to which religious groups must beg concession.

This is not the traditional Catholic way of viewing religious liberty, nor is it entirely consistent with the Founding. Therefore, even a victory for Hobby Lobby may continue the assumption that the state could, in principle, impose an HHS-like mandate so long as the interest were “compelling” enough.

Gerald J. Russello is Editor of the University Bookman ( and practices law in New York.
The Catholic Thing is a forum for intelligent Catholic commentary. Opinions expressed by writers are solely their own.

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Comments (7)Add Comment
written by Mr. Levy, December 06, 2013
Another sterling analysis from Mr. Russello. I hope The Catholic Thing will make him a regular.

It seems to me - speaking off the top of my head - that this question could also be understood - perhaps even better understood - as a matter of property. Obama's view is that the government may force property (business) owners to provide specific services for others on that property. This is only the latest attempt by the national government to conform the morality of the people to its will by imposing affirmative requirements on the uses of property. Previously, for instance, the national government (specifically, the Supreme Court) forced hotel owners to allow unmarried couples to lodge on their property. That decision from several decades ago seems just as wrong as Obamacare's mandates do today - but not, primarily, on account of the right to religion, but on account of the right to property. The right to religion is implicated, of course, but I am not sure it is the essence of the dispute.
written by Manfred, December 06, 2013
This is a fine article, Mr. Russello, but let me inject a few points. The reason a corporation is considered a "person" is that it cannot die. The owners may collapse it, but it outlives the founders themselves. Consider Henry Ford and the Ford Motor Company.
Corporate employees are not being denied contraceptives-they can purchase as many as they wish at any time.
I establish the tenor and tone in my unincorporated business in terms of dress, language, productivity, etc. If I don't, who will? The State?
Some few years ago, I stopped for lunch in a sandwich shop which was owned, I found out, by orthodox Jews. I ordered a roast beef sandwich and then coffee. I was served. When I asked for cream for my coffee, the waiter gave me a look and walked away. It was then I remembered the meat/dairy restriction. If this Jewish luncheonette is allowed to conduct business according to their religious beliefs (I support them for it.), why can't photographers, B&B owners and corporations be allowed to follow theirs? Starbucks has been very public in its support of sodomite marriage!
written by Sue, December 06, 2013
Why does the USCCB not get behind the cause rebutting the individual mandate, which would seem to be more fundamental than that of the employer? All this dithering about employer mandate and conscience, when the notion itself of a government dictating *any* insurance requirement to an employer is absurd. The whole employer-insurance tumor began out of WWII peculiarities in wage controls, but there is no need to wrap ourselves (and the economy) in knots over it when the more fundamental issue of individual conscience is at hand. I'll be damned if I offer the incense of payment to Obamacorpse as an individual not covered by employer insurance. That requirement doesn't seem to faze the USCCB or any of the bishops.
written by Jack,CT, December 06, 2013
The question to m is would these multiple suits
have become reality if the "ACA" did not pass,
since nearly all health insurances cover repro-
ductive health and things like sterilizations and
tubiligations,so where was the outcry about these
"Life preventing" procedures?

No Matter what the view of us catholics and other
Christians the lawsuits floodedin with the passsage
of the "Aca" only.

As long as woman have choice as per the 1973, Roe
decision we can exspect things to stay the same i

Fact is so many Catholic woman are fine with "The
Pill" and take it!

The reality is even without health insurance you
can buy "Birth control" for no more than nine

Finally,we are focusing on who pays at the cash register
instead of the very important "Teaching" we should be
doing to stop woman from going to purchase the life
ending abortifiation drug,when we go to the register
to pay "It is to late" no matter who PAYS!

written by Ted Seeber, December 06, 2013
I don't see a protection of liberty in corporations as currently constituted. In fact, quite the opposite-the only liberated person in the workplace is the owner or the stockholder. As a rule, customers are given a price with the only other choice to walk away and not purchase (no liberty to haggle or deal on price), similarly, labor is at the same take-it-or-leave it disadvantage when haggling for a just wage (you WILL take what is offered, or no job for you!). There is no room for negotiation.

Which from my point of view, leaves little difference at all between the corporation and the government- both are morally inept, not willfully so, but because price signals alone are not enough to produce justice, let alone mercy.

We already have atheistic corporations. Giving privately held companies freedom of religion isn't going to change the fact that the markets themselves are designed to be atheistic, with the only god given any air time being the false god of profit.
written by red, December 08, 2013
I am so grateful that there are corporation owners and leaders that embrace religion and use it in making day to day decisions, I wish there were more as there were decades ago when we weren't stewing in corporate cronyism and big bailouts. There are worlds of examples of small companies living out ideals of charity and kindness.

Our freedom comes from God and the all powerful state is endeavoring to remove any other source of humanity and affirmation. “Tutto nello Stato, niente al di fuori dello Stato, nulla contro lo Stato” (everything for the state, nothing outside the state, nothing against the state).

This denial of Christian morality didn't have to happen. BigHealth from Big Government could have progressed without forcing this issue, but instead the leftist base had to be satisfied by 'nothing outside the state.
written by Bedarz Iliaci, December 09, 2013
He argues that corporations can be “instruments of redemption . . . [and] of God’s grace.”

It is acceptable provided it is also accepted that corporations exist to further common good and to maximize shareholder profits is not the sole end of a corporation.

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