Beyond "religious liberty"

Most of the attention given to the roiling legal fight over insurance coverage and birth control and the limits of religious exercise has come in the form of arguments about "religious liberty."

It is an issue of religious liberty, of course, though the tendency has been for those arguments to obscure more than they reveal. An example of this is Mike Huckabee's advocation for the craft store Hobby Lobby last month. Huckabee encouraged people to shop at the chain in an act of solidarity, a consumption-as-politics act of activism. He said:

They are having to fight in court for the most basic American rights of freedom of religion and freedom of speech .... The Obama administration insists that companies like Hobby Lobby bow their knees to the God of government health care mandates, even when those mandates are a clear and direct contradiction to their personal beliefs of faith.

The conflation that he's making here, between the corporation, Hobby Lobby, and "their personal beliefs of faith," is exactly what's at issue in these lawsuits. The grammatical issue of replacing a singular noun with a plural pronouns isn't an accident; it's the point. In promoting the identification of an individual shopper with the company, Huckabee's not actually making an argument that for-profit corporations can have religion and have the right to exercise religion, but re-casting the issue as a conflict between those who are for and those who are against religious freedom.

For the most part, though, it seems that the people most concerned with these legal battles are only concerned contingent on this confusion.

So it's interesting to see two conservative Christian media outlets approach the Hobby Lobby et al legal battles with Obamacare's HHS contraceptives coverage mandate from a very different direction. This last week, there were two articles where the lawsuits were put into a very different context.



At Christianity Today, journalist Melissa Steffan connected the legal cases to the pro-life movement. She wrote:

The battle over the mandate—and the emergency contraception it requires—has long been over personhood. Is a fertilized egg a person? Do the emergency contraceptives stop eggs from uterine implantation, ending a person's life?  

But now the legal battles against the HHS employer contraceptive mandate are shifting to very different questions of personhood: Are for-profit corporations "persons" in such a legal sense that they have religious rights? And do their religious liberties allow them to avoid the mandate?

Steffan doesn't try to articulate what the connection between those two arguments about personhood might actually be. The people she quotes -- mostly advocates for the companies suing the Obama administration -- don't approach that question either. The question is only raised, and pointed at.

It's a really interesting incongruity, though. Are the people who are dedicated to the idea that life begins at conception comfortable with this expansion of the definition of "person" to include corporations? Is this merely a pragmatic tactic, or is there an underlying philosophical connection between these two arguments about personhood?

At First Things, meanwhile, a professor from Pepperdine approached these lawsuits by connecting them to arguments about Sharia law in America.

Michael A. Helfand wrote:

The more religion has gone commercial, the more difficult it has become for courts to figure out how to treat conduct that that is simultaneously religious and commercial. Of course, these constitutional skirmishes are part of a far larger infrastructure of religious commerce. 

Notable examples include Sharia-compliant financial instruments and Jewish heter iska agreements, both of which are mechanisms for restructuring loans so as to avoid Islamic and Jewish law’s respective anti-usury rules. Religious communities have embraced contracts that use commercial forms to govern and structure a variety of religious relationships, such as employment contracts, arbitration provisions, and prenuptial agreements.

I don't entirely follow Helfand's line of reasoning. If I read him right, he's pivoting off of these lawsuits to make the case that religious laws have a place in American jurisprudence. His conclusion is that,

the best way to prevent the potential negative impact of religious law is to encourage ingenuity and creativity precisely at the nexus of religion and commerce. So long as courts continue to ensure that parties enter such agreements out of their own volition, the sophisticated drafting of agreements and structuring of relationships can provide solutions to the most worrisome religious customs and practices. Those supporting initiatives that hope to disaggregate religion and commerce miss the core insight that commercializing religion isn’t the problem: It’s the solution.

What this has to do with Hobby Lobby and other for-profit corporations opposed to insurance plans that cover employees' contraceptives, I'm not sure. It's interesting, though, to see the several emerging alternative rubrics for thinking about these legal cases besides arguments about "religious liberty."

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God and Mammon and religious liberty

You cannot serve both God and Mammon. At least, you can't if you're a corporation, according to the Obama administration's proposed new rules regarding what sort of organizations will be required to provide employees insurance coverage of contraceptives under Obamacare.

Previously, the Obama administration had allowed for an exemption to the contraceptives mandate that was fairly narrow. Groups were exempted only if they met four criteria: 1) their purpose was the "inculcation of religious values," 2) most of the employees shared that religion, 3) most of the people being served shared that religion, and 4) they were a non-profit organization. This defined the sort of organization the law was considering as "religious."

This definition of "religious" is the fundamental issue in a slew of lawsuits about the health care policy.

One of the main objections to this working definition was the way it deemed religious service groups to be not religious. A Catholic soup kitchen is not mainly about the "inculcation of religious values," nor does it primarily serve Catholics.

With these proposed changes to the rules, released last week, the administration acknowledges that "religion" can mean many things, and doesn't just describe houses of worship. In the proposal for new rules, it says:

The Departments agree that the exemption should not exclude group health plans of religious entities that would qualify for the exemption but for the fact that, for example, they provide charitable social services to persons of different religious faiths or employ persons of different religious faiths when running a parochial school. Indeed, this was never the Departments’ intention.

Therefore:

the Departments propose to amend the definition of religious employer ... by eliminating the first three prongs of the definition and clarifying the application of the fourth. Under this proposal, an employer that is organized and operates as a nonprofit entity and referred to in section 6033(a)(3)(A)(i) or (iii) of the Code would be considered a religious employer for purposes of the religious employer exemption.

In practice, what this would mean is that any non-profit organization can fill out a form stating their religious objections and identifying themselves as religious, and they thus opt-out of the mandate. They can then provide health insurance for their employees that fits with the requirements of their religion and the rules of Obamacare; other arrangements will be made to provide contraceptives for those employees who want it, arrangements that won't involve the religious employer.

This is designed to resolve a good many of the lawsuits while not requiring employees to be disadvantaged by their employers beliefs. Whether it will or not is an open question, I suppose, but that's the purpose of the new rules, to strike a balance between accommodating religious belief and not allowing religious practices to be imposed on or negatively affect those who don't believe. The administration says:

The proposed accommodations would provide such plan participants and beneficiaries contraceptive coverage without cost sharing while insulating their employers or institutions of higher education from contracting, arranging, paying, or referring for such coverage.

The way the balance is struck, here, is by broadening the legal definition of religious organization. Now, to be counted as religious organization, only two things are necessary: the group must considered itself to be and hold itself out to be religious, and there can't be any profit.

This means the lawsuits that have interested me most, which are about the religious rights of for-profit corporations, will go forward. This compromise specifically excludes them. Hobby Lobby, Inc., and other corporations with religious owners will still have to take their case to the courts to argue that corporations have religions and have the right to exercise them.

There have been a variety of responses to the proposed new rules. The U.S. Conference of Catholic Bishops declined to comment for the Associated Press, and said they're studying the proposal. Law firms involved in the cases defending for-profit corporations that have religious objections to insurance plans covering employee's contraceptives have said this is "picking and choosing who is allowed to exercise faith," and that the government should create an exemption for any "moral decision," disregarding anything else. Other responses have been crazier. At National Review, one writer interprets the compromise as a "double dose of authoritarianism" designed to force Catholic nuns to have birth control coverage.

Here's a thought provoking question, though. Matthew Schmitz of First Things asks:

The Obama administration believes that conscientious objections to contraception should prevail in the non-profit sector, but not in for-profit corporations. Why? Do employees of non-profits need contraception less? Do the conscience claims of their leaders matter more? Why are tax-exempt organizations granted more rights than those which pay taxes?

To put it another way, why can't a corporation serve both God and Mammon? What is it about being for-profit that necessarily excludes an organization from being legally considered religious?

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The religious practices of corporate alter egos

Are businesses, legally speaking, just the alter-egos of their owners?

The absolute clearest, most on-point exploration of the issues actually at stake in the religious liberty court cases involving for-profit business and the new health care rules is this piece by Howard M. Friedman, a former law professor and the blogger at Religion Clause. He raises this question, looking at one way the argument is being made for the religious freedoms of corporations.

Friedman notes that, in addition to questions about corporate personhood and the constitutional guarantees about exercise of religion, there are some curious quandaries about corporate law being brought up by these cases, specifically in the ways owners appear to be undermining the sorts of legal distinctions intended to protect corporate owners.

Friedman writes:

In the Affordable Care Act cases, some courts have avoided the difficult issue of whether a business has religious conscience rights by instead concluding that the business is so closely identified with its owners that it may assert the owners’ religious objections as its own.

This idea—that a corporation and its owners should be treated as the same person—is a well-known concept in corporate law, commonly referred to it as “piercing the corporate veil.” Most of the time, lawyers warn their corporate clients to do everything possible to avoid this “piercing,” since the doctrine is usually invoked when creditors of a business are making claims against the personal assets of a company’s shareholders, seeking to recoup their losses from an insolvent business by going after its owners. There is a vast amount of case law on when a court should allow “piercing the corporate veil” to reach shareholders’ personal assets, often focusing on abuse of the corporate form, misleading of creditors, or lack of corporate formalities. Business lawyers look to whether the corporation is the mere alter ego of its owners and routinely advise their corporate clients to emphasize the corporation’s separate existence from its owners.

However, the pleadings filed in many of the contraceptive mandate challenges purposely blur this line, collapsing the beliefs of the business with its owners, inviting “piercing.”

The distinction between an owner or a shareholder and the corporation itself, as Friedman notes, is an important legal underpinning of modern capitalism. What happens to these companies if they succeed in obliterating that distinction remains to be seen, but it could be serious.

The entire piece is well worth reading:  My Business, Myself: Piercing the Corporate Veil

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When Hobby Lobby decided it was opposed to providing birth control

As of today, the arts and crafts store Hobby Lobby, Inc., owes the federal government as much as $2.6 million. Tomorrow that may well be up to $3.9, and the day after tomorrow $5.2.

The company has committed to not paying these fines, claiming that they are being levied because the company refuses to compromise its religious beliefs about the evil of "abortion-causing" birth control.

As The Daily Oklahoman reports, the,

Oklahoma City-based Hobby Lobby will defy a federal law that requires employee health care plans to provide insurance coverage for types of contraception that the firm's owners consider to be “abortion-causing drugs and devices,” an attorney for the company said Thursday.

With Wednesday's rejection of an emergency stay of that federal health care law by Supreme Court Justice Sonia Sotomayor, Hobby Lobby and sister company Mardel could be subject to fines of up to $1.3 million a day beginning Tuesday.

'They're not going to comply with the mandate,' said Kyle Duncan, general counsel of The Beckett Fund for Religious Liberty, which is representing the company. 'They're not going to offer coverage for abortion-inducing drugs in the insurance plan.'

This stand will likely mean the corporation is hailed as modern day martyrs by some Christian conservatives. They might receive the same show of support that the fast food restaurant Chik-fil-A got when the the company's Chief Operating Officer made statements opposing same-sex marriage. This action -- refusing to provide employee health insurance that includes coverage of certain sorts of birth control, and refusing to pay the fine for breaking the law -- will be understood and interpreted as a stand for the robustness of religious liberty.

It turns out, though, that the verb tense of the lawyer's defiant claim,  "They're not going to offer coverage for abortion-inducing drugs in the insurance plan," is pretty important. They're not "going to," in the future.

But they did, in the past.

Legally, the question in the lawsuit Hobby Lobby has filed against the Department of Health and Human Services is more esoteric. The question is whether or not for-profit corporations have religions and exercise religion in the way that's talked about in the First Amendment.

That question isn't particularly relevant to the bulk of those concerned about this case, but that is the question before the courts. Publicly, among those most closely following these developments, the case is understood as actually being about religious liberty in American and the Obama administration's alleged attempts to limit the meaning of "religious exercise" to mere matters of belief and acts of worship, so that anything else that's done as the practice or outworking of piety, such as running a business, can only be strictly secular. For these folks, Hobby Lobby's mounting, unpaid fines are testament to its bold defense of robust religious liberty.

As one opinion-writer depicts this match-up, this is nothing less than a "war against [the] principled sector of the national economy," where,

The federal government is imposing a $1.3 million daily fine to destroy the Green family’s business or otherwise coerce them into violating their sincerely held religious convictions about the life of the unborn.

One problem with that: the company only very recently stopped providing insurance coverage of the supposedly objectionable forms of birth control to its employees.

This strong, strong stance seems to date, actually, only from the time the company learned it would soon be required by law to provide the sort of health insurance that they were already providing.

Hobby Lobby is currently facing mounting millions of dollars of fines for refusing to do what it previously did voluntarily.

For the lawsuit the corporation filed:

Recently, after learning about the nationally prominent HHS mandate controversy, Hobby Lobby re-examined its insurance policy to ensure they continued to be consistent with its faith. During that re-examination, Hobby Lobby discovered that the formulary for its prescription drug policy included two drugs -- Plan B and Ella -- that could cause an abortion. Coverage of these drugs was not included knowingly or deliberately by the Green family [members of which own the company via a trust]. Such coverage is out of step with the rest of Hobby Lobby's policies, which explicitly exclude abortion-causing contraceptive devices and pregnancy-termination drugs. Hobby Lobby therefore immediately excluded the inconsistent drugs from its policies. 

In other words, the company only took a stand -- a supposedly religious stand -- after this issue became a political issue.

The religious commitment of the people who own and run Hobby Lobby isn't in dispute. Either in the court case or anywhere else. Nor is there any question about whether or not they have made decisions that were bad for the bottom line because of those religious commitments. It's quite curious though, and I'd even say suspect, that this issue became an issue, a tenet, purportedly, of that religion the owners are committed to, after the political brouhaha over Obamacare.

While the lawyers and the plaintiffs are claiming the prohibition against certain forms of birth control are long-standing tenets of the corporation's faith -- in addition to the claim that a for-profit corporation can have and practice a faith -- the evidence the lawyers have offered suggests it's rather a new-found doctrine.

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The contraception coverage argument in a phrase

Perhaps it will ultimately be a matter of phrasing.

A third for-profit corporation has filed suit against the Obama administration's Health and Human Services' mandate that health insurance plans include coverage of contraceptives. In addition to a small flotilla of Catholic charities suing over this rule, there are also these three specific cases, where the question is finally whether or not the First Amendment's protection of religious exercise includes corporations. That is, whether or not corporations have inalienable human rights and whether or not they can in some sense be religious.

The latest suit is from Conestoga Wood Specialties Corporation, a woodworking company based in Landcaster Country, Penn. With the suit, the corporation joins and follows the arts-and-crafts chain Hobby Lobby and the Christian book publisher Tyndale House, making the case in federal court that corporations have religions.

The news story in the Philadelphia Inquirer reporting on the suit says the company, which has more than 900 employees and makes cabinets, is owned by Mennonites. Reporter Amy Worden describes Conestoga Wood Specialties as a "Mennonite-owned cabinetmaker." This seems to be a fact that no one disputes.

The headline for the piece, however, says the company is a "Mennonite firm." This is exactly what's in dispute.

Whether or not there's an important distinction between the two phrases is, it seems, basically the crux of this case.

The Obama administration's case is that a Mennonite-owned company is not the same thing as a Mennonite company. After all, there are more than 900 people working there. The religious practices of the owners may include decisions they make in running the company, but the corporation does not belong to any church. That's the argument.

Others disagree. Or, at least, favor the kind of phrasing that takes as fact what's disputed in the court case. For example:

RT @mzhemingway Mennonite company sues Obama admin over HHS mandate: bit.ly/TRQHiK
— Thomas S. Kidd (@ThomasSKidd) December 11, 2012

Then, of course, there are those like the editor at First Things whose headline elides  and implicitly denies any meaningful difference between a "Mennonite-owned corporation" and a "Mennonite corporation" and all the Mennonites.

The way one views this argument may be a matter of assumptions, really. Assumptions that come out in questions of phrasing. It just depends on how you put it.

Update (Dec. 13): The Philadelphia Inquirer has updated its headline to read "A Mennonite firm sues over Obamacare contraception coverage." Whether because the reporter or someone raised the issue I mention here or for some other reason, I do not know.

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The courts' disagreement over corporations having religion

Can corporations practice religion? The courts disagree.

In two different federal courts, in two different cases where for-profit companies with evangelical owners are suing the government over the Obama administration's mandate that health insurance include contraception coverage, two very different conclusions were reached. 

In Washington D.C., a federal court granted the Christian publisher Tyndale House an injunction last week, exempting the company from the daily fines it would accrue starting in January for not following the new health care law. The granted injunction is a ruling that the company has a good case, and should be treated -- at least until the final outcome -- as if it has won. Three days later, however, in Oklahoma, a federal court did not grant the arts and crafts store Hobby Lobby an injunction. The two cases are almost identical, yet the courts ruled in opposite ways. 

Pretty much, too, they ruled opposite ways because of what seems to me to be the core question, which is whether or not corporations can have or exercise religion in the sense indicated by the First Amendment. 

In the first case, Judge Reggie Walton, an appointee of the second President Bush, ruled that "the beliefs of Tyndale and its owners are indistinguishable."

In the second case, Judge Joe Heaton, also a George W. Bush appointee, ruled that corporate exercise of religion is "largely uncharted waters," and said Hobby Lobby's lawyers hadn't cited any legal precedent for the idea "that secular, for-profit corporations such as Hobby Lobby [...] have a constitutional right to the free exercise of religion," despite the fact there's no legal question about the owner's religious beliefs.

One might conclude that Walton and Heaton have a fairly straightforward disagreement about what the case law says, but the difference seems more subtle than that.

Heaton, as I read his ruling, says there's no evidence that for-profit corporations can practice religion. Walton actually agrees, though, despite ruling differently.

Walton writes in his ruling that he "declines to address the unresolved question of whether for-profit corporations can exercise religion within the meaning of [...] the Free Exercise Clause," and cites three cases where the question was left unresolved, First Nat'l Bank v. Bellotti in 1978; Church of Scientology of Cal. v. Cazares in 1981; and Stormans, Inc. v. Selecky in 2009. What he does then, though, is where the difference lies. Walton, in the first move, grants that corporations maybe can't have religion in any meaningful sense and then, in a second move says, that this particular for-profit company "Tyndale has standing to assert the free exercise rights of its owners."

The corporation can act as a kind of carrier of religion or religious practice, while not itself having or exercising said religion.

Walton ruled:

"Tyndale is a closely-held corporation owned by four entities united by their Christian faith, each of which plays a distinct role in achieving shared, religious objectives. Christian principles, prayer, and activities are pervasive at Tyndale, and the company’s ownership structure is designed to ensure that it never strays from its faith-oriented mission. The Court has no reason to doubt, moreover, that Tyndale's religious objection to providing insurance coverage for certain contraceptives reflects the beliefs of Tyndale's owners. Nor is there any dispute that Tyndale's primary owner, the Foundation, can 'exercise religion' in its own right, given that it is a non-profit religious organization."

This is either a really smart solution to the technicality of the problem, or a rather crazy begging of the question that only re-instantiates all the confusions it's supposed to clear up.

It remains to be seen.

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The religion of Hobby Lobby

The 28th lawsuit against the Obama Administration's "birth control mandate" was filed this week. This one was filed of behalf the chain of arts-and-crafts stores, Hobby Lobby.

According to Christianity Today, Hobby Lobby is "the first non-Catholic business to file suit."

While the question of what it means, exactly, for a for-profit corporation to "have a religion" is still not clear to me, this case also involves the question of what, specifically, Hobby Lobby's religion is supposed to be. It's not Catholicism, but what is it? The document filed in U.S. District Court in Oklahoma City is fairly vague on this point. It says "evangelical," mentions "Jesus Christ" and "biblical," but does not specify a church, nor any authority the Obama administration could have consulted for case-specific clarification of the religion's position on moral issues relating to insurance coverage and birth control methods.

Moral issues which, judging just by the explanations offered by the Becket Fund for Religious Liberty lawyers, are complicated:

According to the suit, the arts and crafts store's specific religion is not opposed to birth control per se, but only to birth control that is "abortion causing." This means specifically birth control that prevents fertilized eggs from implanting in the uterus. Moreover, the company's religion not only prohibits those who adhere to the religion from themselves using such forms of birth control, but also, "forbid[s] them from participating in, providing access to, paying for, training others to engage in, or otherwise supporting abortion-causing drugs and devices."

The breadth of "otherwise supporting" is obviously problematic. It's the kind of injunction with implications that would have to carefully explicated by a religion's ethicists and theologians.

But who are the authoritative experts of Hobby Lobby's religion?

According to the lawsuit, the unnamed religion defines the prohibition against "otherwise supporting" certain forms of birth control as meaning certain sorts of compensation packages that could potentially be used to fund birth control are not allowed, while other forms of compensation packages that have that same potential are not a problem. Why? It's not clear. The religion apparently requires believing companies (?) not to participate in or provide access to morning after pills or IUDs. The prohibition against "otherwise supporting" does not, however, extend so far as requiring a company not pay the salaries of people who could possibly use the money they've earned to pay for these forms of birth control. But it does require the company to not pay employees with insurance coverage that those employees could possibly use for morning after pills or IUDs.

The case is, as I read it, built on this explication of the requirements of the religion of Hobby Lobby.

Not providing insurance that covers certain birth control methods is defined in the suit as the "practice" of this religion, and thus protected by the "free exercise" clause of the First Amendment. The suit claims that the birth control mandate, by levying a fine on those businesses that fail to provide HHS-approved health insurances, is effectively fining those businesses that adhere to this religion of Hobby Lobby's for the practice of their religion. This is the main claim of the suit: "Having to pay fines for the privilege of practicing one's religion ... is alien to our American traditions of individual liberty, religious tolerance, and limited government. It is also illegal and unconstitutional." This is reiterated by the statement put out by Dan Green, the founder and CEO of Hobby Lobby, when the suit was filed. He said, “By being required to make a choice between sacrificing our faith or paying millions of dollars in fines, we essentially must choose which poison pill to swallow."

At least part of the argument in the case, then, has to be that this really is an exercise of a religion. 

And that argument would seem to require some specificity as to what religion this religion is that has these beliefs.

The closest the suit gets to naming a religion is naming a very broad religious tradition, i.e., "evangelical," and mentioning that the trust that runs Hobby Lobby is run by the Green family, and the family and trust have a statement of faith that has to be signed by trustees:

"By its own terms, the trust exists first and foremost 'to honor God with all that has been entrusted' to the Green family and to 'use the Green family assets to create, support, and leverage the efforts of Christian ministries.' The trustees must sign a Trust Commitment, which among other things requires them to affirm the Green family statement of faith."

This, then, becomes a key question of this suit. First, there's the question of whether a for-profit business can have a religion, in the sense entailed by the First Amendment's protection of religious practices. Second, specifically with this case, Hobby Lobby, Inc. vs. Sebillius, there's the question of whether a "religion," or, more, an "establishment of religion," can for legal purposes be a family's religion, where what the religion is and what it requires and entails are defined by a family.

This second question seems quite tricky: if it is the case that the Green family religion is a religion, fully protected by the First Amendment, is there a limit to what that family could define as its religion's required practice? Could the family in principle disregard any labor law or business regulation or tax requirement they chose on the grounds it violates a practice of the family religion?

If the Green family religion is not a religion, though, and not protected, then who or what authority determines the legitimacy of a religion for the purposes of First Amendment protection? And wouldn't that be problematic if the Constitutional protection is going to extend especially to those minor religions without the cultural capital necessary to accrue recognitions of legitimacy?

It's an important but also peculiar problem raised by this question of the religion of Hobby Lobby. What counts as a religion?  And what the definition of "religion" should be understood when we read that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof"?

To me, at least, it doesn't seem clear that there's a worked-out answer to that.

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