Today the Supreme Court will hear arguments on a question that sounds insane: "Do corporations have religious beliefs?"
The issue is at the heart of two cases, Conestoga Wood Specialties Corp. v. Sebelius and Sebelius v. Hobby Lobby Stores, Inc., which challenge the Obamacare requirement that businesses include contraceptive coverage in their health care plans. Both for-profit corporations (and their owners, subsidiarily) contend that to give their employees such coverage would violate their free exercise of religion.
But we'll get to that in a second. This case is a bit like an artichoke, except instead of leaves, you have lunacy, and instead of heart, also lunacy. And you dip it in lunacy butter.
For one thing: to understand why we are in this position at all, you sort of have to start with peyote.
Peyote and Antonin Scalia
In 1983, Alfred Smith and Galen Black were working as drug counselors in a small private drug treatment program in Oregon. Both were also members of the Native American church. That church, formally incorporated in 1950 but formed around long-standing religious practices, counts as chief among its sacraments the use of peyote.
However, the small private drug treatment program felt it was improper for its counselors to use illegal drugs. So when Smith and Black confessed to their religious practice, it fired them. And then they were denied unemployment benefits by the state, on the grounds that they were fired for "misconduct."
So they sued, saying they'd been forced to choose between practicing their religion and collecting unemployment benefits. It cost Black himself almost $10,000 in legal fees, he once told the New York Times.
The case worked itself up to the Supreme Court. And there, Justice Scalia, writing for the 6-judge majority, chucked about twenty-five years of court doctrine on freedom of religion and ruled in favor of the employment division. Sure, he said, in the past the court had overruled state unemployment rules because of people's religious obligations. Sure, in those cases, it had demanded that any "substantial burden" on someone's religious practice be justified by a "compelling governmental interest." But no longer:
The government's ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, "cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development."
Translation: As long as the law against a "social harm" applies to everyone, it doesn't matter what anybody's religion is. They have to obey the law.
Oregon's prohibition of peyote was constitutional, he continued, and so therefore it was also constitutional for Oregon to deny these counselors unemployment benefits for ingesting it.
There was a public outcry about this ruling. From Smith himself: "Over the years, I questioned whether the ceremony was worth losing my job over and being scrutinized by the nation. But I did nothing wrong. How could they tell me I was attending a drug party when the ceremony was one of the most sacred Native American ceremonies that has survived for thousands of years?"
Now, you might think the sort of religious folk we have in these here United States might not align themselves with the Native Americans here for any number of reasons, up to and including racism. But also just because John and Jane Church-of-Jesus-Christ-of-Latter-Day-Saints are made queasy by the thought of mind-altering substances. But somehow, to everyone's credit, a coalition running the gamut from the ACLU to the Traditional Values Coalition got behind the idea that Scalia was just absolutely, positively, out to lunch.
And so they convinced Congress to enact a new law called the Religious Freedom Restoration Act (RFRA). What the RFRA does, essentially, is try to reset Scalia's ruling. It holds courts to the older standard that Scalia jettisoned, requiring that the government "may burden a person's exercise of religion" only if it "furthers a compelling governmental interest."
I must pause here to tell you that "compelling government interest" are sort of magic death words in constitutional jurisprudence. Most laws, in the creaky architecture of jurisprudential logic, do not meet the test of a "compelling governmental interest." Basically, if the law in question was not enacted to, you know, bring the country back from the brink of apocalypse and save some lives, it's often found not to serve a compelling governmental interest.
So effectively, the RFRA puts us in a situation where Congress is telling the courts: unless we're literally saving some lives here, don't let us infringe on anyone's religion. Which sounds like a lovely principle until we hit cases like Hobby Lobby and Conestoga Wood.
Hobby Lobby, Plan B, Witch Hats, and Corporate Adulthood
Both cases are brought, you see, under the RFRA. And both, in trying to argue that Congress believes depend heavily in their legal briefs on the fact that as the RFRA currently reads, it protects all "persons." And person is defined in American laws generally as including,
corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.
And now we're going to have to listen to a lot of technical dancing around tomorrow about whether Congress really meant to extend the protection of the RFRA, and by extension the First Amendment, to every God-fearing company in America, as a result.
In one corner we have Conestoga Wood, a business which manufactures kitchen cabinet parts. They don't specify it in their brief but I'm pretty sure these are secular kitchen cabinet parts. And yet Conestoga Wood is going to tell the Supreme Court tomorrow that its owners, the Hahns, possess a,
Mennonite Christian faith requires them to integrate the gifts of the spiritual life, including its moral and social principles, into their life and work; they cannot separate their religious beliefs from their business practices.
Hobby Lobby's official statement of purpose commits the company to "[h]onoring the Lord in all we do by operating the company in a manner consistent with Biblical principles."
That said, I feel compelled to point out that Hobby Lobby counts among its wares sorcery supplies like this 6" felt witch hat. Perhaps these small but terrifying plastic babies, sold in sets of 16 for $1.99, compensate for that. In the Biblical sense.
Both of these for-profit companies claim that these religious affiliations of their owners either make the corporations themselves religious, or protect the owners from directing their corporations to provide contraceptive coverage for their employees. And their religion, both claim, cannot abide the ending of life after conception. Its practice is offended by "abortifacents" like Plan B that the Affordable Care Act would force them to cover, they say in their briefs. They look at the RFRA and feel entitled to protection. They don't know why the government can't go and set up its very own scheme for contraceptive coverage, if it's so into contraceptives. Hobby Lobby got the federal appeals court for Tenth Circuit to agree with it on these points; Conestoga got the opposite from the Third Circuit. So here we are.
Against them, the federal government is trying to argue that Congress didn't intend for the RFRA to include corporations, and also that the corporations can't necessarily be said to have the same religion as their owners, and that corporations, like teenagers on their eighteenth, are their own people entirely unbeholden to the beliefs of their "parents."
And that even if all of that fails, the Attorney General swears:
The contraceptive-coverage provision directly and materially advances the public health, which is unquestionably a compelling governmental interest.
This case would be significantly less depressing to follow were one assured that a majority of the Supreme Court would agree that the public health writ generally was a "compelling governmental interest." That's not even to get to the hope that it would regard the health of women specifically as such. But we don't live in That America.
We live in this one, where one of the arguments Conestoga and Hobby Lobby have both used against the Administration is that there are, already, thousands upon thousands of businesses exempted from covering contraception under the Affordable Care Act. For various reasons, of course, but some, yes, because the government agrees that actual religious organizations should not be forced to cover contraceptives if it contravenes their religious beliefs.
It does not, strictly speaking, seem to be judicially relevant that there are real women working for those religious organizations and companies, women who have real bodies with real health concerns deserving of protection. Their rights to make autonomous decisions are discussed in passing in the Attorney-General's brief, but they're not long sections. Women's bodily autonomy is not, as the judges may want to put it, really the issue before the Court.
Instead they're going to debate whether for-profit corporations have religious beliefs on the strength of a law enacted to protect indigenous religious rights. You really can't make this stuff up.
[Image by Jim Cooke.]
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