God, Incorporated: Observations on the Hobby Lobby Argument

March 25, 2014

Today, I attended the Supreme Court argument in Sebelius v. Hobby Lobby Stores. The case is a complex one, with several distinct issues that need to be resolved. In this post, I will briefly address one of those issues, namely whether a for-profit corporation can claim a religious identity and an entitlement to an exemption under the Religious Freedom Restoration Act (RFRA).

In a nutshell, Hobby Lobby, and its companion case Conestoga Wood Specialties v. Sebelius, involve two for-profit corporations that object to providing contraceptive coverage for their employees through their health plans. Such coverage is mandated by the Affordable Care Act and its implementing regulations. They also maintain that they should be exempt from providing such coverage pursuant to RFRA, which states that if a law substantially burdens the exercise of religious belief, then the government must exempt religious objectors from the law absent a compelling government interest. (See CFI's primer for more details.)

The threshold issue then is whether a for-profit corporation can claim a religious identity.

RFRA extends its protections to “persons.” Unfortunately, “persons” is not defined under RFRA, so one must rely on common sense and an understanding of the role of religion in a secular state in interpreting the scope of the statute. Also unfortunately, a majority of the Supreme Court appears to lack both common sense and an appropriate understanding of the distinct roles of religion and government in a secular state.

During the argument, some of the justices pointed out that in certain circumstances, for-profit corporations have been held to possess a racial identity, so why can’t they also have a religious identity? It is true that corporations that have been certified as minority-owned for purposes of affirmative action programs have been able to sue for race discrimination because those who discriminated against them perceived them to have a racial identity. But this example is inapposite. There is no claim that Hobby Lobby or other companies have been targeted by the government because of the religious beliefs of their owners. They are not objecting to discrimination, but instead are claiming an exemption from a law of general applicability.

Similarly unpersuasive is the argument made by Hobby Lobby, and greeted with nodding approval by several justices, that nonprofit corporations can have a religious identity and there is nothing in RFRA that draws a distinction between for-profit and nonprofit corporations. Therefore, for-profit corporations must also be recognized as having a religious identity.

This argument is wholly unpersuasive. It is true that some nonprofit corporations have been regarded as having a religious identity. This is a natural outcome of the realization that the exercise of religion sometimes requires individuals to associate in groups and to formalize this association. One means of doing so under our legal system is to form a corporation.

But, apart from their shared corporate form, a for-profit corporation is an altogether different animal from a nonprofit corporation. Among other reasons, a for-profit corporation is, by definition, primarily engaged in a secular activity, namely making money. Under our constitutional scheme, religion enjoys protections from government interference— and correlatively, our government enjoys protections from religious influence (in theory)— because religion deals with otherworldly concerns, whereas government deals with secular matters. In other words, government stays out of religious matters and religion stays out of government matters because government and religion are focused on different concerns. Government can’t tell religious individuals or groups how to save souls, and religious individuals or groups shouldn’t be able to tell the government how to protect the health of women.

Of course, a religious person is free to engage in secular activities, including commercial activities. And corporations controlled by religious persons can also engage in commercial activities. However, when they do, they submit themselves to the rules and regulations of the secular state. When a corporation engages in for-profit commercial activities, it ceases to be a religious association, that is, an association focused on otherworldly matters.

Or as one famous person reportedly said, one cannot serve both God and Mammon.

But that’s what Hobby Lobby wants to do. It wants the protections granted to religious beliefs while also carrying out for-profit commercial activity with the legal advantages granted to corporations. Sadly, a majority of the Court appears prepared to accept Hobby Lobby’s claim, and with it a radical restructuring of the relationship between religion and government.

In closing, one tangential observation: one couldn’t help noticing that during the argument, it was the three female justices, Ginsburg, Kagan, and Sotomayor, who asked tough questions of Hobby Lobby’s attorney. One wonders if the male justices would have been more engaged in this portion of the argument if Hobby Lobby had objected to health care coverage for Viagra instead of contraceptive care.