The Catholic Thing
Religion, the Corporate Life, and the Court Print E-mail
By Hadley Arkes   
Tuesday, 25 February 2014

We are approaching the eve now of the oral arguments at the Supreme Court in the cases of Hobby Lobby and Conestoga Wood Specialties. Two owners of businesses, one Assemblies of God and one Mennonite, are faced with crippling fines if they will not obey the commands of Obamacare, and fund abortifacients and contraceptives for their employees.

The briefs have been cascading in now in support of the Green and Hahn families. Some of our most acute legal minds have been engaged, and from the focus they’ve placed in their briefs, we gauge their own sense of where the decisive point in the argument will be.

I find it curious, then – and a bit alarming – that the genius of our friends should be concentrated on these points: that a corporation may be touched with a religious character, even when it is directed to the earning of a profit.

I’m confident that, on these points, my own side will prevail in these cases, on the strength of the precedents and on the very logic of the thing, as Aristotle alone might tell us. And yet the religious could still lose these cases, for reasons I’ve sketched in these columns and would point up yet again.

On that matter of a “corporation”: The very purpose of a corporation is to permit an entity to subsist over time, in its defining character, even as the founders are succeeded by another generation. The corporation becomes “impersonal” in that way, in the sense that it is not tied to any particular person.

        David Green, C.E.O. of Hobby Lobby

The Obama Administration, however, seems to assume that the natural state of a corporation is secular, untouched by any moral concerns that may spring from the religious character of its founders. The Administration is willing to accept the religious character of churches and other religious organizations as corporations. But it assumes that any organization directed to turning a profit must have purged itself of any concerns apart from the pursuit of wealth.

Professor Michael McConnell recalls that one of the first corporate charters in this country, granted by King James I for the “Virginia Company,” giving the right “to dig, mine, and search for all Manner of Mines of Gold, Silver, and Copper.” But as McConnell notes, the primary, stated purpose of this charter was the “propagat[ion] of Christian Religion to such People, as yet live in Darkness and miserable Ignorance of the true Knowledge and Worship of God.”  

The business may be prosaic, with digging and mining, and it could be done for money, but apparently it was understood more readily in an earlier time that the business of making a profit gave rise to the question: “what are the ends for which you are seeking to accumulate this property and enlarge your means?” 

Earlier in this country just about every college was founded for the purpose of training ministers and advancing the teaching of Christianity. In our own day, a religious character can be manifested in something as simple as not working on the Sabbath. As Professor McConnell noted, the “exercise” of religion is not confined to forms of worship in church, but reflected in the way lives are lived daily.          

Aristotle taught us that every act implied some notion of a state of affairs that was good or bad, better or worse. And every association – every coming together of persons – implied some notion of a “good” to be attained. Now how could it be that, among all of the sources that supply an understanding of a “good” to be sought, the only illegitimate source is the understanding drawn from our religious tradition? The position of the Administration is untenable on those grounds alone.

       Anthony Hahn, C.E.O. of Conestoga Wood Specialties

Our friends, in their briefs, cite many cases in which the courts credited businesses with a religious character – as with the case of Mr. Braunfeld facing a Sunday closing law. He closed on his own Sabbath and now would lose another day of business. But Mr. Braunfeld lost his case, as did others in the cases cited by the briefs.

Kenneth Starr recently cited the case of Wisconsin v. Yoder (1973) in which an Amish family was sustained in its refusal, on religious grounds, to have their children in school. But Starr curiously overlooked U.S. v. Lee, where an Amish farmer and carpenter sought an exemption from the laws that required him to pay social security taxes.

To let a few kids out of school was one thing; but to remove the obligation to support the social security system was apparently something else entirely! Chief Justice Burger explained that “because the social security system is nationwide, the governmental interest is apparent. . . .[It] is by far the largest domestic governmental program. . .distributing approximately $11 billion monthly to 36 million Americans.”

The Amish might be entirely “sincere,” but when their “beliefs,” are set against a massive program of the government, their beliefs, valid only for those who share them, would have to be overridden. And if so much holds for social security, what are we to expect when “beliefs” are set in opposition to the vast system of medical care, covering one-sixth of the economy? 

The hope, expressed in these columns, is that our lawyers will add to their arguments the truths that undergird the convictions of the religious – and those principles of constitutionalism that protect the freedom of the religious along with everyone else.

Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College. He is also Founder and Director of the Washington-based James Wilson Institute on Natural Rights and the American Founding. His most recent book is Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is now available for download.
The Catholic Thing is a forum for intelligent Catholic commentary. Opinions expressed by writers are solely their own.

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Comments (5)Add Comment
written by Myshkin, February 25, 2014
I pray to God that the SCOTUS pays attention to "the principals of constitutionalism" you refer to, Hadley. They certainly have had a mixed track record on that score ...
written by Mr. Levy, February 25, 2014
Indeed, Prof. Arkes, and thank you for hammering this point home in column after column. One can hope that at least four justices are listening, and a number of judges.
written by Jack,CT, February 25, 2014
Dr Arkes,I just love the way you always put the "cold
hard truth' out there.Thx
written by Kurt, February 25, 2014
“Did you ever expect a corporation to have a conscience, when it has no soul to be damned and no body to be kicked?” – Edward, First Baron Thurlow 1731-1806
written by DJ, February 26, 2014
I have no legal expertise, but I do take heart from a few pieces of evidence not adduced here. First, in several recent cases, including that of the Hosanna-Tabor Lutheran Church, the current justices have voted 9-0 in favor of religious freedom, even in circumstances that seem far less clear-cut than these. Granted, that involved an actual church.

That leaves me to reason for hope #2: the Citizens United case. Famously, liberals were apoplectic that the case established a kind of "personhood" for corporations, giving them the same first amendment right to free speech that individuals enjoy. I am hopeful that the court will equally see fit to recognize the first amendment rights of the corporations in these cases.

Finally, reason for hope #3: in addition to the Constitution itself, the Religious Freedom Restoration Act was passed by Congress in the 1990s to address situations like this — they were prescient enough to see days like this coming. Since the RFRA itself has not been constitutionally challenged, it would seem as though the corporations in this case could have strong recourse to it.

Then again, we are dealing with a court whose supposedly conservative Chief Justice found a way to save the ACA by calling a penalty a "tax," so one certainly can't predict what they will do with certainty. Let's hope their inner Catholic voices trump their desire to be welcome at DC cocktail parties by the liberal overlords that seek to run our lives.

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