Promoted from the Ricochet Member Feed by Editors Created with Sketch. Do Owners of a Corporation Waive Their Free Exercise Right? Hobby Lobby and the Right — and Duty — of Conscience

 

The United States Government suggests that, by adopting the corporate form, the Green family — owners of Hobby Lobby — waived their rights of conscience. The Government betrays a deep misunderstanding of its subject.

Conscience insists on rights, which our Constitution affords. Those rights are not guaranteed for any low purpose, to do merely as we please. Conscience connects us with the divine as each finds it. And through that connection, it imposes duties. What is commonly called the “right” of conscience, then, is merely the space to discharge those duties. Because those duties are undeniable, the corresponding rights are unalienable. As James Madison said in his Memorial and Remonstrance Against Religious Assessments, the right of conscience “is unalienable…because what is here a right towards men, is a duty towards the Creator.”

The facile approach to this case that focuses narrowly on whether a corporation can exercise religion misses the entire point of the Free Exercise clause and the right to conscience. Of course it is the Greens, not Hobby Lobby, who believe they must one day give account before St. Peter. The corporate entity is merely the space in which the Greens discharge their duties of conscience, investing themselves in creating a successful, wholesome, and faith-guided economic enterprise, providing good jobs to thousands of employees. Incorporation does not disappear the conscience. The right to enforce these claims still exist, whether individually or if legal technicality insists, through the corporate fiction.

The Greens’ unanimous and scrupulous discharge of their duties of conscience resolves any concern of their sincerity in seeking exemption from generally applicable laws — or, in this case, administrative regulations promulgated by the Department of Health and Human Services that have already generated wide exemptions. Hobby Lobby’s official statement of purpose testifies to their duties of conscience, as do their Statement of Faith and Trustee Commitment. The Greens’ conscience reaches to inventory, merchandising, and shipping practices, such as their decision not to sell shot glasses or backhaul alcoholic beverages. Their consciences also compel them to give their employees a day of rest by closing their more than 500 stores on Sundays, costing millions per year. Counterfactuals based on a happy state of affairs in which the Greens are typical corporate owner-operators describe quite the opposite of a “parade of horribles.” 

The Government would deny the Greens’ right to discharge any of these duties because they elected to conduct their business in the form of a for-profit corporation. Despite the unequivocal acknowledgement by the Father of our Constitution that the right to conscience is unalienable, the Government now takes the position that the Greens lost the right in exchange for “limited liability” of the corporate form. Never mind that Blackstone listed “advancement of religion” first on the list of purposes corporations may pursue. Or that the Pilgrims, who formed the for-profit Massachusetts Bay Company, declared in their Company Charter the spread of the “Christian Fayth” among their venture’s express purposes. Or that the Catholic Church operates numerous hospitals under the corporate form. Even the current First Lady acknowledges that religion is not to be compartmentalized: “Our faith journey isn’t just about showing up on Sunday.… [I]t’s about what we do Monday through Saturday as well.” She also noted that “Jesus didn’t limit his ministry to the four walls of a church.”

Conscience has rights because it has duties. The law is powerless to limit the liability conscience imposes on the Greens. Its proper place is to “make no law…prohibiting the free exercise [of religion],” so that the Greens, and all of us, may work out salvation in fear and trembling.

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  1. Robert E. Lee Member
    Robert E. Lee Joined in the first year of Ricochet Ricochet Charter Member

    I believe the Greens should be able to practice what they believe as long as it doesn’t infringe on the rights of others. Hobby Lobby, as a corporate entity, should be required to conform to the law without religious exception. If the law laid down for businesses violates their beliefs, then they need to get out of the business. It’s of case of which they care more about, their religion or their wallet and we can see where they put their money.

    My litmus test in these cases is to imagine the plaintiffs are Muslim. Would I feel offended if the law required I give up my personal liberty or my access to services because of Muslim beliefs would I be as upset?

    If the Greens don’t want to use birth control it is their right. I do not believe they should be able to prevent others from using birth control because they don’t use it. If the Greens do not want to pay for their own birth control, or that of others, that is their right. But Hobby Lobby is a business, not the Greens personally, and they must “render unto Ceasar” regardless of their personal beliefs.

    • #1
    • March 31, 2014, at 1:53 PM PDT
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  2. Tim Kowal Inactive
    Tim Kowal

    Robert E. Lee: Would I feel offended if the law required I give up my personal liberty or my access to services because of Muslim beliefs would I be as upset?

    Helpful counterfactual, so let’s parse it. The “personal liberty” you would be giving up is a benefit offered by your employer, a component of your total compensation package. I did not see this addressed in the briefs, but let’s assume that Hobby Lobby’s employees will get the value one way or another — i.e., if they do not receive access to the four abortifacients at issue, the value will be made up in additional benefits, cash, etc. Re-labeling what is a fungible employer-provided benefit as a “personal liberty” is key to the Government’s case, but ultimately unjustified, in my view.

    Of course, what really creates problems is the fact that the benefit at issue here is highly subsidized, and thus a particularly valuable, less fungible benefit. This practice suggests the government can stack the deck against employers’ rights by turning objectionable benefits into “personal liberties” by changing their tax treatment. This is a dangerous power shift to the government. Beware the taxing power.

    • #2
    • March 31, 2014, at 2:21 PM PDT
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  3. Robert E. Lee Member
    Robert E. Lee Joined in the first year of Ricochet Ricochet Charter Member

    Tim Kowal:
    Of course, what really creates problems is the fact that the benefit at issue here is highly subsidized, and thus a particularly valuable, less fungible benefit. This practice suggests the government can stack the deck against employers’ rights by turning objectionable benefits into “personal liberties” by changing their tax treatment. This is a dangerous power shift to the government. Beware the taxing power.

     
    The “added value” of the bureaucracy costs more in personal liberty and money for both the employer and the employee. We never seem to learn the only people who benefit are the bureaucracy.

    Religious liberty, for me, not only means the freedom to practice my religion, but also the freedom from other peoples’ religion.

    • #3
    • March 31, 2014, at 2:54 PM PDT
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  4. Robert E. Lee Member
    Robert E. Lee Joined in the first year of Ricochet Ricochet Charter Member

    “Religious liberty, for me, not only means the freedom to practice my religion, but also the freedom from other peoples’ religion.”

    Hmmm…that didn’t come out quite like I meant it. I don’t mind folks practicing their own religion, just as long as it doesn’t effect me. For instance, the Muslim cab driver a couple of years ago who refuse a fare because they had an unopened bottle of liquor.

    • #4
    • March 31, 2014, at 3:00 PM PDT
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  5. Tim Kowal Inactive
    Tim Kowal

    If the Greens dissolved their corporation and operated Hobby Lobby instead as a partnership or sole proprietorship — i.e., stripped of limited liability and corporate tax treatment — would the outcome be different, in your view?

    If it does, I have much trouble discerning just what it is about the corporate form that forfeits its owners’ rights of conscience. Tax treatment? Legal liability? These seem quite irrelevant to matters of conscience.

    • #5
    • March 31, 2014, at 3:43 PM PDT
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  6. Robert E. Lee Member
    Robert E. Lee Joined in the first year of Ricochet Ricochet Charter Member

    I’d prefer your suggestion that they roll the health care money into cash and let the employees buy whatever care they want, with no strain on anyone’s conscience.

    As far as corporations are concerned, I don’t believe corporations should have any rights at all. No matter what the lawyers and lobbyists say, corporations are not people. As it is, corporations have rights, governments have rights, citizens…not so much. Not as much as corporations and the government. Goes back to that great foundation this country was built on (or so it seems): Money talks!

    • #6
    • March 31, 2014, at 4:23 PM PDT
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  7. TeamAmerica Member
    TeamAmerica Joined in the first year of Ricochet Ricochet Charter Member

    @Robert E. Lee- “As it is, corporations have rights, governments have rights, citizens…not so much. Not as much as corporations and the government.”

    Exactly what rights, besides ‘limited liability,’ do corporations have that citizens don’t?

    • #7
    • March 31, 2014, at 6:29 PM PDT
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  8. MaggiMc Inactive

    So no matter how morally reprehensible an act is, if Congress can be induced to pass a law that corporations must pay for it, then they must comply? There is no limiting principle, and their only option is to disband if they disagree? What if Congress passed a law that companies must hire a certain number of employees of various religions to promote tolerance. Employers must pay for religious education classes for all employees so that nobody offends anyone else’s religious sensibilities. Employers must demonstrate to the government sufficient understanding of all the religions or face fines. Is that the same or different?

    • #8
    • March 31, 2014, at 7:19 PM PDT
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  9. MaggiMc Inactive

    What if a government agency writes regulations that say that the only acceptable treatment for a particular disease past a certain stage is assisted suicide? If the patient is on Medicaid, the government pays, but if the person is employed, the employer pays. Is that the same or different?

    • #9
    • March 31, 2014, at 7:42 PM PDT
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  10. Tim Kowal Inactive
    Tim Kowal

    MaggiMc — This is the kind of “parade of horribles” Hobby Lobby’s side worries about. I share that worry. The starting premise seems to be a compartmentalization of religion. As any serious religious person knows, that is just not how religion works. Religious beliefs are not a product but a presupposition reason. They inform all we do.

    The other side has a “parade of horribles,” too. They argue that if the Greens can opt out of the abortifacient mandate, then any business owner can opt out of any government mandate. This ignores the particular facts here: Hobby Lobby is a closely held family corporation whose religious beliefs at issue are unanimous, and have been consistently and notoriously practiced.

    But more importantly, note the distance we have come as a country. At our nation’s beginning, we thought a Bill of Rights unnecessary, having furnished the government with too little power to ever implicate our natural rights. Now, a good many complain that companies are subjected to not enough regulation and enjoy too much freedom. It’s a mad, mad, mad, mad world.

    • #10
    • March 31, 2014, at 8:24 PM PDT
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  11. MaggiMc Inactive

    Tim, agree! Now that the government can conceivably regulate any behavior so long as the penalty for non-compliance is called a “tax”, then these clashes between religious freedom and the “public good” will only increase. Also, I was hoping to draw REL out a bit because I honestly didn’t follow all of his argument. Regardless, I like the way you couched this in terms of rights and duties.

    • #11
    • March 31, 2014, at 8:53 PM PDT
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  12. Robert E. Lee Member
    Robert E. Lee Joined in the first year of Ricochet Ricochet Charter Member

    MaggiMc:
    So no matter how morally reprehensible an act is, if Congress can be induced to pass a law that corporations must pay for it, then they must comply? There is no limiting principle, and their only option is to disband if they disagree? What if Congress passed a law that companies must hire a certain number of employees of various religions to promote tolerance.

     Isn’t that what they’ve done with racial quotas? It’s not too far-fetched to imagine something like that in the near future. As far as Congress passing morally reprehensible laws, I’d have to say I find most members of Congress morally reprehensible based on what I can see and I wouldn’t put anything past them.

    To recap the situation as I understand it (and I will admit to a very limited understanding) Congress has mandated that businesses must provide certain health care to it’s employees. The owners of the company object to providing parts of the health care one moral grounds. As long as the law stands, the company, which has no moral principles, must comply. (continued)

    • #12
    • April 1, 2014, at 8:40 AM PDT
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  13. Robert E. Lee Member
    Robert E. Lee Joined in the first year of Ricochet Ricochet Charter Member

    The owners, who do have moral principles, do not want to comply because it violates their moral principles. The options seem to be to comply (and in my view not force their moral principles on their employees) or not comply and face sanctions.

    As a side question, do the owners find it morally reprehensible to hire non-Christian or non-practicing Christian employees? And what would be the difference in hiring preferences by law and health care by law?

    • #13
    • April 1, 2014, at 8:46 AM PDT
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  14. Tim Kowal Inactive
    Tim Kowal

    Robert E. Lee: The options seem to be to comply (and in my view not force their moral principles on their employees) or not comply and face sanctions.

    Complying with one’s conscience does not mean “forc[ing] their moral principles” on anyone. To suggest it does means assuming that employees have a “right” to their employment, and a “right” to receive specific forms of health services by virtue of that employment. Nothing supports either “right.” To the contrary, employees can seek other employment or obtain these specific services elsewhere, including the health exchanges.

    • #14
    • April 1, 2014, at 9:53 AM PDT
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  15. Tim Kowal Inactive
    Tim Kowal

    Robert E. Lee: do the owners find it morally reprehensible to hire non-Christian or non-practicing Christian employees? And what would be the difference in hiring preferences by law and health care by law?

     The Greens have not expressed this, nor would they from what I understand. In any event, this is apples and oranges. Hiring decisions based on the employees’ religion is unlike health care decisions based on the employer’s.

    • #15
    • April 1, 2014, at 9:56 AM PDT
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  16. Robert E. Lee Member
    Robert E. Lee Joined in the first year of Ricochet Ricochet Charter Member

    Tim Kowal:

    The Greens have not expressed this, nor would they from what I understand. In any event, this is apples and oranges. Hiring decisions based on the employees’ religion is unlike health care decisions based on the employer’s.

     What about health care based on the employee’s decisions? Employment isn’t a right, I understand. But if the Greens hire an employee, they are bound by federal regulations under EEO, whether it violates their principles or not. Given the Greens find it acceptable to accept these limitations, I don’t understand why they have a problem providing federally mandated health care rules.

    I’m not trying to be offensive, nor to denigrate the Greens. I understand they are unhappy with this situation. While I do not agree with their point of view overall, the subject of the discussion is, I think, about government’s ability to mandate, properly or not, actions by employers and employers obligation to follow those mandates. My position, given that the government has mandated certain health care standards, the Greens should comply.

    • #16
    • April 1, 2014, at 4:03 PM PDT
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  17. Robert E. Lee Member
    Robert E. Lee Joined in the first year of Ricochet Ricochet Charter Member

    TeamAmerica:
    @Robert E. Lee- “As it is, corporations have rights, governments have rights, citizens…not so much. Not as much as corporations and the government.”
    Exactly what rights, besides ‘limited liability,’ do corporations have that citizens don’t?

     Sorry it’s taken so long to get back to you. As someone once said “I’ll believe corporations are people when Texas executes one.”

    Citizens are held accountable for their actions and subject to jail time for some penalties. Corporations do not go to jail. Oh, the occasional executive will be tossed overboard when the seemingly limitless corporate legal coffers get low, but other than an easily payable fine, corporations don’t face the same hassles as the rest of us. The government seems impervious to legal consequences (or good sense for that matter) citizens face. From sovereign immunity to just plain old “we don’t have to follow the law and you can’t make us” the citizen is still coming out on the short end. Unless, of course, you are a citizen with millions of dollars. What was it Orwell said, some pigs are more equal than others?

    • #17
    • April 1, 2014, at 4:12 PM PDT
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  18. Tim Kowal Inactive
    Tim Kowal

    Robert E. Lee: the subject of the discussion is, I think, about government’s ability to mandate, properly or not, actions by employers and employers obligation to follow those mandates. My position, given that the government has mandated certain health care standards, the Greens should comply.

    There are two issues here, one being the scope of the federal government’s power to regulate commerce generally, and the other being whether this power swallows the First Amendment.

    • #18
    • April 2, 2014, at 8:56 AM PDT
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  19. MaggiMc Inactive

    Robert E. Lee: The owners, who do have moral principles, do not want to comply because it violates their moral principles. The options seem to be to comply (and in my view not force their moral principles on their employees) or not comply and face sanctions.

    Here’s another take: The Religious Freedom Restoration Act passed by congress says the government may not burden a person’s exercise of religion (with some caveats). The Affordable Care Act burdens a person’s exercise of religion. You may disagree that corporations can be persons, but it’s accepted in the US legal system. So we’re back to “it’s the law, so you must comply.” Which law must be complied with? The two laws are in conflict.

    • #19
    • April 2, 2014, at 8:02 PM PDT
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  20. Robert E. Lee Member
    Robert E. Lee Joined in the first year of Ricochet Ricochet Charter Member

    MaggiMc:

    So we’re back to “it’s the law, so you must comply.” Which law must be complied with? The two laws are in conflict.

     Amen.

    • #20
    • April 3, 2014, at 6:31 AM PDT
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