I have blogged a bit about the question whether corporations can sue for violations of religious liberties under RFRA. I had a feeling this issue would be big. Now, it has gone to a new level. Bill Keller writes a lengthy opinion piece in the New York Times about the contraception mandate litigation, and whether corporations can bring suit under RFRA (and more broadly under the First Amendment):
Evangelicals and Catholics, cheered on by anti-abortion groups and conservative Obamacare-haters, now want the First Amendment freedom of religion to be stretched to cover an array of for-profit commercial ventures, Hobby Lobby being the largest litigant. They are suing to be exempted on the grounds that corporations sometimes embody the faith of the individuals who own them.
“The legal case” for the religious freedom of corporations “does not start with, ‘Does the corporation pray?’ or ‘Does the corporation go to heaven?’ ” said Kyle Duncan, general counsel of the Becket Fund for Religious Liberty, which is representing Hobby Lobby. “It starts with the owner.” For owners who have woven religious practice into their operations, he told me, “an exercise of religion in the context of a business” is still an exercise of religion, and thus constitutionally protected.
The issue is almost certain to end up in the Supreme Court, where the betting is made a little more interesting by a couple of factors: six of the nine justices are Catholic, and this court has already ruled, in the Citizens United case, that corporations are protected by the First Amendment, at least when it comes to freedom of speech. Also, we know that at least four members of the court don’t think much of Obamacare.
You can feel some sympathy for David Green’s moral dilemma, and even admire him for practicing what he preaches, without buying the idea that la corporation, c’est moi. Despite the Supreme Court’s expansive view of the First Amendment, Hobby Lobby has a high bar to get over — as it should.
Keller quotes Marci Hamilton, who raises the question whether a company owned by a Jehova’s Witness could block their employees from obtaining blood transfusions.
“If an employer can craft a benefits system around his religious beliefs, that’s a slippery slope,” said Marci Hamilton, a professor at the Benjamin N. Cardozo School of Law and a critic of religious exemptions. “Can you deny treatment of AIDS victims because your religion disapproves of homosexuals? What if your for-profit employer is a Jehovah’s Witness, who doesn’t believe in blood transfusions?”
Today Kevin Walsh wrote a post addressing just this question. Kevin offers some practical objections–namely that no Jehova’s Witness has ever attempted to adopt such a policy. Specifically:
RFRA is not a free pass for a religious exemption, but its application does trigger the requirement for the government to satisfy strict scrutiny, and the government can sometimes satisfy that test. The application of strict scrutiny should stop the roll down the slippery slope from reaching the point where the government cannot use certain regulatory tools to achieve a compelling government interest. Even assuming that a substantial burden analysis comes out the same, the compelling interest is easier to identify in with respect to emergency blood transfusions. The need for an emergency blood transfusion is unpredictable. And in comparison with emergency contraception, which is available over the counter at most pharmacies (for around $40 for a generic or $50 for a brand name), emergency blood transfusions are much more expensive.
Keller quotes Doug Laycock, Hamilton’s frequent foil, as stressing that the religious community not be quite as aggressive for defending these positions:
“The religious community cannot take religious liberty for granted,” he said in a speechbefore the contraceptive issue blew up. “It needs to expend a lot more energy defending the right to religious liberty, and it would help to spend a lot less energy attacking the liberty of others.”
Cases like Hobby Lobby, he told me, have compounded his worry.
“Interfering with someone else’s sex life is a pretty unpopular thing to do,” he said. “These disputes are putting the conservative churches on the losing side of the sexual revolution. I think they are taking a risk of turning large chunks of the population against the idea of religious exemptions altogether.”
Keller ends on a dour note.
When I read that kind of rhetoric from our country’s loftier pulpits, I understand why thefastest-growing religious affiliation in America is “none.”
I may write something more about this.
Update: 45 minutes later, I just sent the following letter to the editor of the New York Times:
The Conscience of the New York Times CompanyTo the Editor:Bill Keller’s argument in “The Conscience of a Corporation” is premised on the notion that corporations cannot exercise constitutional rights. However, as your own Adam Liptak wrote in his 2/7/11 column, “If corporations have no First Amendment rights, what about newspapers and other news organizations, almost all of which are organized as corporations?”
The same constitutional structure that allows corporations such as the Times to assert rights of free speech (such as the Pentagon Papers Case) has allowed other corporations to win landmark First Amendment cases before the Supreme Court–many of these cases were brought by entities that were not members of “the press.”
As the Seventh Circuit Court of Appeals observed, the “use of the corporate form is not dispositive” to resolve these claims. Whether President Obama’s health care mandate violates these rights is a separate question from whether these rights can exist.