The Supremes and Us Print
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 (www.kirkcenter.org) and practices law in New York.
 
 
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