by Caroline Mala Corbin, Professor of Law, University of Miami School of Law; author of the ACS Issue Brief, “Corporate Religious Liberty: Why Corporations Are Not Entitled to Religious Liberty,” and “Corporate Religious Liberty”
While the Affordable Care Act’s individual mandate was the center of attention during the first round of constitutional challenges to it, its “contraception mandate” stars in two cases currently before the Supreme Court, Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius. Under health care reform, large employers must now provide employees with health insurance that covers basic preventive care. For women, basic preventive care includes access to FDA-approved contraception. The Obama administration has totally exempted churches from this requirement, and essentially exempted nonprofits from it, so it really only applies to for-profit corporations. Hobby Lobby Stores, Inc., a chain of arts and crafts stores, and Conestoga Woods Specialties Corp., a cabinet manufacturer, argue that they are religiously opposed to certain forms of contraception and that consequently the contraception mandate violates their religious liberty.
Actually, there are two types of plaintiffs in these cases. First, there are the for-profit corporations who claim that the contraception mandate violates the corporations’ religious rights. Second, there are the owners of the for-profit corporations who claim that the contraception mandate violates their individual religious rights. Both plaintiffs should lose, but for different reasons. The corporations should lose because for-profit corporations do not and should not have religious liberty rights. The owners of the corporations should lose because their claims have no merit.
Starting with the corporate plaintiffs: the reasons individuals and churches are granted religious liberty rights simply do not apply to for-profit corporations. Why do we protect individual religious conscience? Religious people might respond that we protect individual religious conscience so that people can fulfill their obligations to God. Failure to do so can cause great suffering now and in the hereafter. Corporations, of course, cannot not suffer, have no soul, and certainly have no relationship with God. Secular people might respond that we protect people’s decisions about their spirituality because it is a way of respecting their individual autonomy and inherent dignity. But while people are ends in themselves and possess an inviolable dignity, corporations do not. They are merely a means to an end, and possess no inherent dignity that we must respect. In short, religious rights only make sense when applied to actual people. Corporations lack the fundamentally human attributes, such as a relationship with God or inviolable dignity, which justify religious liberty protection.
As for churches, the reasons for and scope of protection for churches is hotly contested. Some argue that any protection for churches is derived from their individual members while others argue that churches qua churches are entitled to religious liberty protection. Even assuming the latter, we protect churches because churches are sacred houses of God; churches are the source of theological truth; churches are institutions with an overriding religious mission; and churches are voluntary religious associations. A chain of arts and crafts stores is none of those things.
Owners of For-Profit Corporations
The corporate owners, as real human beings, can of course bring religious liberty claims. Under the Religious Freedom Restoration Act, if the contraception mandate imposes a substantial religious burden on them, then they must be exempted from the mandate unless it passes strict scrutiny (that is, unless the mandate advances a compelling government interest in a narrowly tailored way). However, there is any number of reasons why their claims should fail.
First, the religious burden on the corporate owners is not substantial. For example, the contraception mandate does not require the individual owners to do anything. The mandate does not force any owner to take contraception. Nor does it force them to provide it. Rather, it requires their corporation, a legally distinct entity, to include contraception in their health insurance. (Actually, it is even one step more removed with the Hobby Lobby Stores since the company is owned by a trust with the family members as beneficiaries.) Presumably the businesses were incorporated to take advantage of limited liability, which guarantees that the company’s debts do not become the owners’ personal debts. To then turn around and argue that the company’s spending is really their personal spending not only ignores basic corporate law but smacks of having their cake and eating it too.
Second, the contraception mandate advances several compelling state interests. It promotes women’s health as well as the health of any children they may bear. It helps women participate as equals in the economic and political life of the country. Finally, it avoids sex discrimination in the provision of health care, a likely result of an insurance program where men’s basic preventive care is covered but women’s is not.
Third, burden-shifting exemptions are disfavored in religion clause jurisprudence. That it, the Supreme Court frowns upon granting religious exemptions when those exemptions will burden third parties. In United States v. Lee, an Amish employer argued that it violated his deeply held beliefs to pay Social Security taxes on his employees, as the Amish were religiously opposed to Social Security. The Supreme Court rejected the request for a religious exemption in part because granting the exemption “operates to impose the employer’s religious faith on the employees.” Similarly, allowing employers to withhold otherwise available medical care “operates to impose the employer’s religious faith on the employees.”
This leads to my last point, which is that recognizing these claims privileges already powerful corporate employers over their employees. First, it opens the door to further exemptions from laws designed to protect employees. If Hobby Lobby can deny contraception coverage, can a Jehovah Witness corporation refuse to cover blood transfusions, or a Scientology corporation refuse to cover psychiatric services? What about employers with religious objections to homosexuality who want to deny spousal benefits to same-sex married couples? Second, corporate religious liberty will come at the expense of employees’ individual religious liberty. Religious obligations can point towards contraception use as well as away from it. For example, some people believe that you should not bring new life into the world unless you are able “to sustain it in accordance with God’s intention for the life to be fulfilled.” Granting an exemption from the contraception mandate to corporate employers will make it that much harder for employees to meet their religious obligations. In short, a victory for either type of plaintiff will exacerbate the power imbalance between employers and employees, and risks making religious liberty yet another luxury reserved for those at the top.