A Twisted View of the Freedom of Religion
By Charles J. Mikhail
After the solemnity of Holy Week and the celebration of the resurrection of our Lord Jesus Christ, I have reflected on the blessing we enjoy in America to freely exercise religion, as guaranteed by the First Amendment to the Constitution. But I am also reminded of how in 2014 the U.S. Supreme Court trivialized and cheapened personal faith by extending the constitutional right to freedom of religion to wealthy and powerful corporations, enabling them to disregard the
law.
Introduction
“And the Lord God formed man of the dust of the ground, and breathed into his nostrils the breath of life; and man became a living soul” (Gen. 2:7).
Neither the Constitution nor the Bill of Rights mentions corporations. But in the early 1800s, state legislatures began to issue charters of incorporation with attendant regulation to protect the public from harmful business practices. But corporations “have no conscience, no beliefs, no feelings, no thoughts, no desires” (Dissent in Citizens United 465-66). John Marshall, a founding father and Chief Supreme Court Justice, explained that a corporation is “an artificial being, invisible, intangible, and existing only in contemplation of law” (Hobby Lobby 752). James Madison wrote that a charter of incorporation “[c]reates an artificial person not existing in law” (Gans and Shapiro 8).
Recall the Declaration of Independence: “[A]ll men are created equal, [and] are endowed by their Creator with certain unalienable rights, [ ] among these are Life, Liberty and the pursuit of Happiness.” Men, not corporations.
Senator, Corporations Are Not People
A memorable incident from the 2012 presidential campaign is when Sen. Mitt Romney, a private equity investor, was heckled by a crowd that insisted he support shoring up Social Security with increased taxes on big business. His infamous retort and public relations gaffe: “Corporations are people, my friend” (Winkler 377).
In two drastic grants of individual constitutional rights, the Supreme Court tendered to corporations the concept of “personhood.” In Citizens United v. Federal Election Commission (2010), the Court allowed for-profit corporations unlimited political campaign spending, as protected “speech.” In Burwell v. Hobby Lobby (2014), the Court exempted for-profit corporations from covering certain contraceptive drugs and devices in their health insurance plans, as mandated by the Affordable Care Act, as protected “exercise of religion.”
David and Barbara Green, the majority stockholders of Hobby Lobby, are evangelical Christians; Norman and Elizabeth Hahn, the majority stockholders of a co-plaintiff in the lawsuit, Conestoga Wood Specialties, are Mennonites. Both families oppose abortion. They did not want the companies’ insurance plans to cover some IUDs and “morning-after” pills, which they believe induce abortion.
Hobby Lobby
The case was not really about abortion, but rather, government regulation (or deregulation) of business. People have strong views and feelings about abortion. I respect that. But I take strong issue with Hobby Lobby because it is ridiculous to conclude that a corporation has a constitutional right to, and can, exercise religion. The Hobby Lobby decision is bad law.
Note that neither the Greens nor the Hahns were being forced to use contraceptives against their wishes or prevented from speaking out in opposition to contraceptives or abortion (Gillman and Chemerinsky 139). And neither the Greens nor the Hahns were required by the Affordable Care Act to furnish contraceptives to employees. Corporate funds paid for the insurance coverage, not the stockholders. And the decision to use contraceptives was not made by the corporation, but rather, by the employees in consultation with their doctors, as they would do to obtain any other medication or treatment (Hobby Lobby 760-61). It is very difficult to see how the right of the Greens or the Hahns to freely exercise their religion was infringed by the mandate.
Hobby Lobby’s Hidden Pitfalls for Christians and Other People of Faith
Hobby Lobby has implications that will one day adversely affect Christians and other people of faith. Consider the following three of many scenarios:
- If you are a Christian and work for a company whose majority stockholders are Muslims or Jews who see pork as unclean and forbidden (“haram” in Islam, “non-kosher” in Judaism), Hobby Lobby would allow the company to deny you and your covered dependents insurance coverage for medications such as gelatin-coated pills and capsules derived from pig skin or bones, and certain anesthesia intravenous fluids from pig intestines, based on the religious beliefs of the company’s majority stockholders.
- If you work for a company whose majority stockholders are Jehovah Witnesses who hold a religious belief against blood transfusions, Hobby Lobby would allow the company to deny you and your covered dependents insurance coverage for needed and often life-saving blood transfusions.
- If you work for a company whose majority stockholders are Scientologists who oppose the use of antidepressants which they regard as poisons and their purported benefits a hoax, Hobby Lobby would allow the company to deny you and your covered dependents insurance coverage for such medications.
The Supreme Court has put itself in a position of evaluating the merits of different religious claims and deciding which beliefs deserve exemption from law and which do not. Ruth Bader Ginsburg warned: “The Court, I fear, has ventured into a minefield.” She argued that the prudent and practical course is to limit religious exemptions to non-profit corporations such as churches, synagogues, mosques, and their affiliated organizations carrying out religious purposes, not to commercial for-profit businesses (Hobby Lobby 770-72).
The First Amendment protects individuals to “believe what they wish and to practice their religion without [harming] others” (Gillman and Chemerinsky xi). When people engage in a for-profit commercial enterprise, they must go by the same rules as everyone else with no special privilege to avoid the law (46-47).
How We Got Here
In April 1970, millions of people celebrated Earth Day. The public was tired of corporations polluting the air, poisoning lakes and rivers with toxic waste and sewage, abandoning hazardous waste without cleanup, and emitting lead from cars and paints and other products. The government responded with legislation to protect the environment and improve the health and safety of the American people (Clements 16-18). Legacies of conservative Republican Pres. Richard M. Nixon include the National Environmental Policy Act (NEPA) and the Environmental Protection Agency (EPA). Other legislation included: the Clean Water Act, the Clean Air Act, and the Toxic Substances Control Act (18).
This did not go over well in corporate board rooms. Companies decided to aggressively resist regulation and fight back hard—in the political arena and in the courts.
Their primary weapon: Money to political campaigns (19). A major part of their agenda was the appointment of judges favorable to their worldview on corporate rights. They established legal foundations that bombarded state legislatures and Congress and filed cases in the courts advancing the theme that corporations are “persons” under the Constitution and Bill of Rights. Gaining the right to unlimited political campaign spending was at the top of the list, a goal they achieved with Citizens United. A friendly and like-minded entity, The Federalist Society, was to be the reservoir from which judges would be chosen, especially the Supreme Court (Clements 26-27; Mayer 1-3). Six of the current justices on the Supreme Court are either members or former members of The Federalist Society.
Corporate Rights Under the Constitution and Bill of Rights
Over the years, the Supreme Court gave corporations “personhood” under the Constitution and Bill of Rights: freedom of speech (but with strict limitations), due process, equal protection of the law, representation by legal counsel, trial by jury, protection against unreasonable searches and seizures, and the right not to be exposed to double jeopardy. But until Citizens United and Hobby Lobby, never has the Court granted to corporations all rights enjoyed by individuals (the “living souls” of Gen. 2:7): the right to vote, to bear arms, and to be protected against self-incrimination (Winkler xvi). Certainly not the right to unrestricted and unlimited political campaign spending as “speech” (Chemerinsky 12). And most assuredly not the right to the free exercise of religion.
The Original Intent of the Religion Clause of the First Amendment
The Religion Clause was written for the benefit of human beings; hence, “We the People.” It is the inherent dignity of an individual that sets aside a human being apart from a legal fiction such as a corporation. Religion is thought and expression, which corporations neither possess nor exercise (Gans and Shapiro 7-9). In the mind of the Framers, the right to the free exercise of religion is rooted in human attributes—reason, conviction, and conscience. Corporations cannot believe, pray, or attend church or other houses of worship.
Turning Corporate Law on Its Head
Hobby Lobby is flawed on multiple levels.
- Hobby Lobby stands for the proposition that a for-profit corporation may impose the religious beliefs of its majority stockholders on employees of the corporation who have deeply held convictions of their own that differ from the beliefs of the majority stockholders (14-15).
- Hobby Lobby will have detrimental consequences to corporations and their stockholders. Leo E. Strine, Jr., a former Chancery Court Judge in Delaware and Chief Justice of the Delaware Supreme Court, is one of the nation’s most influential and respected legal experts on the law of corporations. He called both Citizens United and Hobby Lobby “profoundly mistaken from the perspective of corporate law” (Winkler 382-83). His central argument rests on the very definition and nature of a corporation as a “legal fiction” and an “artificial being” completely separate and apart from its owners, the stockholders.
- Hobby Lobby extends protection to a corporation “derivatively [to] protect the religious liberty of those who ‘own and control’ the corporations, but [does] not explain why those [owners] would be the only corporate participants whose interests count” (Schwartzman 150). What about the company’s minority shareholders? A basic concept of corporate law is the protection of minority shareholders. And what about the company’s officers and employees? All corporate participants have religious beliefs which they also have a right to exercise freely (157-58). When majority stockholders act for their own benefit and interest to the disadvantage of minority shareholders, they are under corporate law guilty of a breach of the fiduciary duty of loyalty. Corporate law requires they act “equitably and in the interest of all shareholders” (167).
- Under corporate law, a corporation’s owners (stockholders) cannot “have their cake and eat it too.” They are not allowed to enjoy privileges and protections of corporate identity, such as limited liability, on the one hand; on the other, the rights and privileges of individuals in matters of conscience and dignity—as in the exercise of religion. Hobby Lobby permits owners to “go back-and-forth between individual and corporate status [in order] to gain the benefits of both.” Stockholders are shielded from personal liability, including reaching of their personal assets, because they are separate and distinct entities from the corporation. Hobby Lobby blurs that distinction and allows owners to invoke the distinct and separate identity when it suits them and to ignore it when it does not (Hobby Lobby 756).
If a plaintiff files a lawsuit against the Greens seeking to reach their personal assets for a breach of duty by their corporation (say, for negligence resulting in injuries at a Hobby Lobby store), does anyone doubt that they would raise as an affirmative defense the separateness of identities and seek dismissal of that lawsuit? Hobby Lobby is a looming danger for corporations and makes it easier for plaintiffs suing them to “pierce the corporate veil” and overpass the separate identity of a corporation—a purpose which is the “whole point of corporate law” ignored by the Court’s majority. In a snarky swipe at the Court, Strine said in a lecture to students at Yale Law School: “Pick up any textbook on the law of corporations and the first lesson is always the same: the corporation is a legal person—an independent legal entity, separate from the people who own and work for it” (Winkler 386). Strine concluded that in Hobby Lobby, the Court “abandoned the principles of corporate personhood” (386-87).
Conclusion
It is disheartening to see learned Supreme Court justices, caretakers of the Constitution and Bill of Rights, dismiss the rights of real people (company employees) and under the guise of “freedom of religion” do the bidding of corporations which have no heart, soul, mind, feelings—or a religious belief. Those justices have forgotten the masters they are to serve: “We the People.”
Efforts are ongoing to capitalize on the Supreme Court’s predilection as reflected in Hobby Lobby to further restrict reproductive autonomy and limit access to reproductive health care, including a push to make it easier for corporations to exclude altogether insurance coverage for contraceptives in the Unites States and around the world.
Charles J. Mikhail is a citizen of Stone County andpractices law in Wiggins. He earned a Doctor of Jurisprudence and Master of Arts in History from Mississippi College, a Master of Laws in Energy and Environment from Tulane Law School, and a Master of Theological Studies from Harvard Divinity School. He is solely responsible for the content of this column.
Abbreviated Citations
Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014).
Chemerinsky, Erwin. We the People (2018).
Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).
Clements, Jeffrey. Corporations Are Not People (2014).
Gans, David, and Shapiro, Illya. Religious Liberties for Corporations? (2014).
Gillman, Howard., and Chemerinsky, Erwin. The Religion Clauses (2020).
Mayer, Jane. Dark Money (2016).
Schwartzman, Micah, et al. Eds. The Rise of Corporate Religious Liberty (2016).
Winkler, Adam. We the Corporations (2018).
