Our Humanity, Naturally

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Making a Mockery of Religious Freedom

Can corporations have religious faith? What if they convert?

Can a corporation really find religion?
wikipedia
Even if you accept that corporations are people, it’s quite a leap to suppose that they can find religion. Yet that's essentially the argument in the case of Hobby Lobby, a corporation that is challenging the contraception mandate of the Affordable Care Act, better known as Obamacare. Hobby Lobby's case goes to the Supreme Court in March, and the justices will decide whether the corporation, which is owned by Christian shareholders who object to some forms of birth control, can omit contraception coverage from its employee health insurance.

Rarely are the problems inherent in the fiction of corporate personhood more apparent than they are here, where we have a corporate entity claiming fundamental rights that by their nature are deeply personal. Only real humans can hold religious beliefs, of course, so the for-profit corporation's claim of religious freedom in some ways makes a mockery of the fundamental right. Nobody seriously claims that the Hobby Lobby corporate "person" is a Christian, since of course only real humans can be Christians. The company itself has no religious beliefs of any kind, nor is it a church or a religious institution.

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In the real world, Hobby Lobby is a "person" only in a legal sense, created through laws and procedures that allow the formation of such business entities. Hobby Lobby can’t think for itself, it knows not the difference between right and wrong, and it neither seeks eternal salvation nor fears damnation. Nevertheless, under the guise of personhood, the chain of crafts stores claims that religious freedom gives it the right to ignore laws that promote public health.

It’s worth noting that the real legal issue in the case is not so much constitutional, but statutory. That is, under settled constitutional law Hobby Lobby would almost certainly have no right to exclude itself from the contraception mandate, because the mandate itself is a law that is “neutral and of general applicability” (that is, the law is not aimed at religion, but affects religion only incidentally). In 1993, however, political activism from the Religious Right created a statutory rule that makes it easier for plaintiffs to challenge any laws that affect religion. That statute, the poorly named Religious Freedom Restoration Act, would have been more aptly called the Religious Privileging Act, because it essentially allows religion to trump public policy.

But the practical impact of the Hobby Lobby argument is more intriguing than the legal issues, because the notion that for-profit corporations can claim religious freedom has profound implications. For example, if a corporation can claim religious freedom, doesn’t that mean that it could later convert from one religion to another? If Hobby Lobby’s shareholders have a change in faith – or if they sell their shares of the corporation to Jews, Hindus, or Muslims – has the corporation "converted" to another religion? Would the corporation then be required to abide by the contraception mandate?

Such questions give rise to more problems. How does the government regulate and oversee these kinds of claims? If ownership changes partly or completely, do we require a renewed statement of faith? How would we know that the continuing claim of exemption is motivated by faith and not profit? (It’s not clear that exemption from the contraception mandate would save money, but surely some religious exemptions will be cost-savers.)

And corporate religious freedom could apply on a larger scale. If Catholics become majority shareholders in General Motors, can they convert the corporation to Catholicism and exempt it from contraception coverage? What if Scientologists take over the company and decide they don’t want to pay for psychiatric coverage? It’s common knowledge that many religions have issues with many aspects of medicine (Christian Scientists, for example, see faith as the preferred remedy for most ills) but that hardly justifies forcing relatively powerless employees to carry the burdens imposed by a corporate shareholder's religion.

Given the need for sensible public health policy, even real, non-corporate humans who employ others have no strong argument for exemption from rational healthcare laws that are in the public interest. But the claim for a "religious freedom" exemption becomes even weaker when it is made not by a faith-carrying human employer at all, but a corporation. Bob Dylan could have been talking to Hobby Lobby, or any corporation, when he said, “You had no faith to lose, and you know it.”

Hobby Lobby, Inc., may be a person in the legal sense, but it is not a real thinking and breathing person. Humans can argue about the existence of gods, but we can all agree that corporations have no prospect for eternal salvation. No theological doctrine posits that Hobby Lobby can go to heaven. If it wins its lawsuit, however, thereby making affordable birth control more elusive for its employees and countless others who are similarly situated around the country, there are many who will be wishing that corporations could indeed go to hell.

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David Niose on Twitter: @ahadave

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Dave Niose is an attorney, activist, and writer. He is president of the Washington-based American Humanist Association.

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