The upcoming Supreme Court decisions addressing the Department of Health and Human Services mandate and the Affordable Care Act will say much more about corporate personhood than they do about American religious liberty. Do corporations, like individuals, have constitutional rights like freedom of religion and freedom of speech? Decisions in favor of Hobby Lobby and other plaintiffs will further extend the First Amendment to corporate entities, a process arguably begun with the Citizens United case.
The Subcommittee on the Constitution and Civil Justice of the House Judiciary Committee met Tuesday to discuss “The State of Religious Liberty in the United States.” A lively dialogue ensued over the Supreme Court cases and corporate personhood.
The question hinges on whether a law preventing businesses from reflecting religious values is an example of “prohibiting the free exercise thereof,” though the Bill of Rights was written for people. As a member of the committee pointed out, corporations don’t go to church, don’t have conversion experiences, and don’t get baptized.
Conservatives fighting for the ability of organizations like Hobby Lobby to opt out of contraception and abortifacient mandates on the basis of religious liberty are going to have to find a way to decisively demonstrate the ability of a corporation to act as an extension of the consciences of its owners. The extension of a person’s religious freedom to a corporation will always seem hypocritical until the connection between the moral autonomy and culpability of the individual and the acts of a corporate entity can be established.
Unless one argues along a libertarian tack and says that any business, collective, or corporation may refuse to enter a contract with anyone at anytime for any reason—or has complete control over the content of the contracts it enters into without government oversight—it is difficult to argue for selective refusal of service or recusal from legal employment contract mandates. The precedents for those laws are already on the books.
One camp looks and sees a business shirking what has become its legal responsibility, or engaging in what appears to be refusal of service based on bigotry. The other camp sees individuals with “sincere religious beliefs”—those aren’t scare quotes; these are beliefs of the highest order, of life and of love—forced to violate them, to have blood on their hands as accessories to the murder of innocents, to participate in the celebration of what they see as a tragedy.
It’s easy to equate the bakery that won’t make a wedding cake for a homosexual couple because they are homosexual with the bakery that won’t make a wedding cake for a black couple because they are black. It’s much harder to equate the baker who believes baking a cake for a homosexual wedding means he will not only condone, but join in celebrating, an act he considers a profaning of a most sacred rite, with the baker who won’t bake a cake for a black couple’s wedding because he’s a racist whose rectum contains his whole world, namely his skull, empty as it is.
For the conversation about religious liberty to progress beyond the impasse it rests at, the question of the relationship between an individual’s conscience and private institutions they operate in public life must be answered. It’s that, or strip away government oversight of corporate and business practices. No one, however, appears to be arguing that in this case. And while everyone agrees faith is a personal matter, the fight is over whether it is a public or a private one.