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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.