Travis Weber, J.D., LL.M., is director of the Center for Religious Liberty at the Family Research Council. FRC filed an amicus brief with the Supreme Court in Burwell v. Hobby Lobby Stores.
In Burwell v. Hobby Lobby Stores, the Supreme Court held in a five-to-four decision that closely held for-profit corporations can bring claims under the Religious Freedom Restoration Act (“RFRA”), and that the HHS mandate violated these corporations’ rights under RFRA by requiring them to provide contraceptives which they believe end human life. In so ruling, the Court very logically concludes that for-profit corporations can exercise religion and serve as vehicles for religious practice just like individuals and non-profit entities.
Writing for the majority, Justice Alito (joined by Chief Justice Roberts and Justices Scalia, Thomas, and Kennedy) held that the definition of “person” in RFRA clearly included for-profit entities – a logical conclusion only avoided by creating and accepting illogical distinctions. The majority dismantled the much discussed and much criticized argument advanced by the government that the elements of profit-making and corporate form – though each independent and unrelated – somehow added up to deny that companies with human beings driving them and their values could advance religious beliefs and therefore are entitled to protection under RFRA. As the Family Research Council pointed out in its amicus brief, “[t]he government never explains why those two independent distinctions – profit-seeking and corporate form – each separately irrelevant, somehow combine to deny the corporate parties in this case coverage under RFRA.” The Court’s explanation on this point, including its dissection of Justice Ginsburg’s dissent, comports with logic, and a long and rich history of robust religious exercise in the United States. Two core American principles – encouraging free enterprise and practicing religious freedom – are embodied in one statement in the majority opinion: “HHS would put these merchants to a difficult choice: either give up the right to seek judicial protection of their religious liberty or forgo the benefits, available to their competitors, of operating as corporations.”
The majority summarized its dismantling of the government’s false distinction most succinctly in noting that “no conceivable definition of the term [corporation] includes natural persons and nonprofit corporations, but not for-profit corporations.” As the Court recognized, “[a] corporation is simply a form of organization used by human beings to achieve desired ends.” Indeed, corporations achieve non-profit making ends all the time, such as corporate social responsibility practices, or, as the Court recognized, voluntarily setting standards above what is legally required. For, “[c]orporations, “separate and apart from” the human beings who own, run, and are employed by them, cannot do anything at all.”
Contrary to the doom and gloom about all manner of religious objections to come, the Court recognized that RFRA claims would continue to be assessed on a case-by-case basis as they arise. The “sky is falling” response is not credible in light of the Court’s opinion. Yet the Court does provide a resoundingly clear and logical answer to how religion intersects with all areas of human activity, including profit-making enterprises.
While the primary dissent “would confine religious exemptions under [RFRA] to organizations formed “for a religious purpose,” “engage[d] primarily in carrying out that religious purpose,” and not “engaged. . . substantially in the exchange of goods or services for money beyond nominal amounts,” even Justices Breyer and Kagan refused to decide whether for-profit corporations may bring RFRA claims, perhaps recognizing the difficulty of the government’s argument on this point. Thus it appears only two Justices believe that engaging in profit-making enterprises erases one’s religious liberty rights. The primary dissent emphasized the “absence of . . . precedent” for for-profit corporations bringing free exercise claims. Aside from questionable accuracy – the dissent had to admit thatGallagher v. Crown Kosher Super Market of Mass, Inc. featured a for-profit corporate free exercise claim – the fact remains that on a broader level, profit makers certainly had been previously shown to exercise religion in the United States, and the absence of explicit case law specifically stating as much does not detract from this point.
The dissent also errs in claiming that “[r]eligious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations.” In making this argument, the dissent minimizes the way in which American families who wish to practice their faith while at the same time making a living can do so. Such a view in essence tells those of faith who wish to also make a living that they must keep their faith out of decisions regarding how they support themselves and their families, or be forced to violate their conscience. Justice Ginsburg’s view that “religious organizations exist to serve a community of believers,” and nothing more, inaccurately explains the purpose and essence of religious organizations. For such organizations also exist as a natural outpouring and expression of religious faith. So do for-profit entities. Thus, contrary to the thrust of Justice Ginsburg’s argument, for-profit corporations can indeed serve religious ends. The dissent simply misunderstands the nature of religious practice. Justice Kennedy, however, does reveal a proper understanding of this connection between work and faith, noting that religious exercise includes “the right to express those beliefs and to establish one’s religious (or nonreligious) self-definition in the political, civic, and economic life of our larger community,” including how one makes a living.
Finally, the primary dissent also claims that in “incorporating a business . . . an individual separates herself from the entity and escapes personal responsibility for the entity’s obligations.” Yet in “incorporating a business,” an individual does not excise religion from their life and simply shut off their deeply held beliefs from affecting the way they live in a free democratic society. The dissent tries to drive a wedge between religion and the rest of one’s life – an impossible objective to achieve.
Justice Alito responds well to the primary dissent, noting that “[f]urthering [corporations’] religious freedom also ‘furthers individual religious freedom,’” for allowing “Hobby Lobby, Conestoga, and Mardel to assert RFRA claims protects the religious liberty of the Greens and the Hahns.” He makes it clear that no wedge can fit between one’s faith and one’s business enterprise. It is impossible for the Greens and the Hahns to simply shut down beliefs which have long guided their lives from the very core of their being. To ask them to deny these beliefs simply denies their humanity. In holding that closely held for-profit corporations can exercise religion, the Court simply recognizes the inseparable nature of religion from informing all areas of a person’s life. The Court not only reached the right result today with respect to for-profit entities being covered under RFRA, but it also reached the commonsense result.
In all this discussion of corporations and religion, it is important to remember that this decision featured a showdown between civil rights (those of the Green and Hahn families) and an overly intrusive government scheme. Americans’ objections to such schemes, and the ability to seek judicial redress for their objections, lie at the core of American constitutional and civil rights jurisprudence. Americans’ consciences must not be sacrificed on the altar of legislative (or agency) action merely because they also happen to want to make a profit.
Whether corporations are engaged in social responsibility programs, voluntary community initiatives, or religious practices, corporations have always done much more than just “make a profit.” Whether the case features a Jewish butcher, a Muslim financier, or the Green family’s decision to see their religious beliefs reflected in their business practices, corporations have always served to reflect the beliefs of the human beings behind them. The Court’s ruling today simply recognizes this principle.
In the middle of its opinion, the Court rhetorically asks: “Is there any reason to think that the Congress that enacted such sweeping protection put small-business owners to the choice [of either giving up religious liberty or giving up the freedom to earn a living] that HHS suggests?” No, there is not. America has been built on the backs of small-business owning families like the Greens and the Hahns. Many of them are merely seeking to live free from government intrusion in accord with their beliefs without being forced to violate their consciences. That is not too much to ask. Thankfully the Court agreed.
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