Elite Fear of Religion

In a recent piece on Slate, Dahlia Lithwick wrote of the rising terror of employers “forcing” their religious beliefs on their employees.  Although some might think that the oppressive mandate being enforced by the Department of Health and Human Services is a clear case of government imposing on private citizens, Lithwick sees it quite differently. 

For her the real problem is the hypothetical threat posed by employers imposing their beliefs on employees.  Because of this concern, she is now afraid that the courts, in construing the HHS mandate, will instead allow employers to prohibit employees from seeking therapy or obtaining medication, and will render their individual religious beliefs “immaterial.”

She writes that “[t]he guarantee of religious freedom enshrined in the Constitution was intended to protect fragile minorities from crushing religious burdens imposed by the wealthy and powerful.” That Lithwick sees religious liberty only as a cover to defend bigots, and that it must yield, eventually, to the good souls who have “worked to accommodate religious belief while pushing for fundamental fairness and equality,” only underscores her lack of concern for a protective view of religious exercise. 

The First Amendment, of course, famously refers to “Congress” and not to any particular group of wealthy or powerful groups.  Indeed, as Lithwick has apparently forgotten, constitutional protections protect us from the government, not from one another, except as we act through the state.  The overriding concern of the Founders was government infringement on the exercise of religious liberty by the federal government.  

The states were included much later, but that history further refutes Lithwick.  For some decades, even state imposition of religious belief was fine, so long as it was not national.  When application of the First Amendment to the states occurred, the concern was the same.  Government, through its coercive power, could not infringe on conscience or the way that conscience was exercised. 

And of course Lithwick is wrong factually as well.  She seems to imply that the “wealthy and powerful” are religious people who seek to impose crushing religious burdens on others who disagree.  But of course, whereas employees have the right to negotiate with their employer or find other employment, HHS imposes its secularist view nationwide, with limited, almost completely inapplicable exemptions. 

In any event, the “wealthy and powerful” – such as legal academics, judges, the media, and entertainment establishments – are all on the side of the mandate and crushing religious exercise.  And indeed, we are seeing cases brought by individuals against third parties to force them to act contrary to their beliefs.

     Conestoga Wood Specialties: on the wrong side of the Feds

So Lithwick seems to have missed what is actually happening in favor of a largely imaginary bugaboo.  Even if she were right in her guesswork on the purpose of the First Amendment, she should be arguing for more religious liberty, not less.

She exemplifies elite opinion on religious liberty.  For proponents of the HHS mandate, the government is not acting as an “umpire” in disputes between private parties, but imposing its will and what it considers public concerns that those liberties enshrined in the Constitution.  The occasion for Lithwick’s reflection was the case, Conestoga Wood Specialties Corporation v. HHS, which the federal Third Circuit Court of Appeals decided late last month.  In that case, the majority, over a vigorous dissent, ruled that Conestoga, as a for-profit corporation, did not itself have any protectible religious liberty, and so must accede to the HHS mandate. 

Presented with a similar situation, the Tenth Circuit ruled in favor of Hobby Lobby, like Conestoga a privately-held company that is owned by people who see their business as an extension and reflection of their religious beliefs.  That court found it reasonable that a small for-profit corporation can express its owners’ religious beliefs.  Such a split between federal appellate courts is likely to receive Supreme Court review, especially as dozens of other similar cases challenging the mandate make their way through the federal courts.

Admittedly, this appears to be a difficult case.  How can a corporation exercise religion?  The Conestoga majority noted that there was little if any precedent ruling on the scope of First Amendment freedom of exercise privileges afforded for-profit private corporations.  Based partly on that, but noting that corporations have long been recognized to have free speech rights, the majority found:   

[w]e are unable to determine that the nature, history, and purpose of the Free Exercise Clause supports the conclusion that for-profit, secular corporations are protected under this particular constitutional provision. Even if we were to disregard the lack of historical recognition of the right, we simply cannot understand how a for-profit, secular corporation – apart from its owners – can exercise religion. 
So, religious exercise is an individual “human” right alone, that cannot be expressed through the corporate form, or at least, one that also seeks a profit since the majority’s reasoning is equally applicable to not-for-profit entities such as churches, which the majority awkwardly, and embarrassingly, sidesteps.

The dissent took exception to this analysis, and argued that the vagaries of the tax code – whether a corporation is for profit or not – should not determine constitutional rights.  And the majority’s opinion ignores the fact that while corporations cannot “pray” or receive sacraments neither can they “picket, or march on Capitol Hill,” but that does not mean they lack the rights of free speech.

The view of the Conestoga majority and Lithwick is that a for-profit corporation can never be a person with constitutional rights.  And proponents of the HHS mandate feel free to narrow down religious exercise for non-profit corporations.  Both views suffer from the same weakness. They place all power to define religious exercise in the hands of the state, from which the Constitution precisely removes it.

Gerald J. Russello (9171-2021) was a lawyer and editor of The University Bookman.