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July/August 2014

Discover more articles from this issue.

Getting That Old-Time Religion

We should challenge any effort to insert religious compulsion into the matter of statecraft.

Is Religion a Hobby?

Nicholas P. Miller discusses the ongoing saga of Holby Lobby versus "Obamacare."

A Civil Right Tested - Part 2: Title Vll and Beyond

Increased “burden” on employers brings balance to the accommodation regime.

Religion on Trial

It’s not easy being British these days. Only a few years after narrowly avoiding compulsory ID cards, British citizens had a close call waiting to find...

Fuel for Thought

It’s a matter of presuppositions, really. For a theist, right makes might, which explains how America became great. But for an atheist it works the...

Slouching Toward Capernaum

People with strong convictions of any kind often function best when believing themselves under siege. So long as it is believed that contemporary trends...

Respecting Existential Reality

Prince Saud Al Faisal can be an imposing figure. The Saudi foreign minister is a large man with decades of experience dealing with Saudi Arabia’s place...

Magazine Archive »

Published in the July/August 2014 Magazine
by Nicholas P. Miller

Two views of the role of religion in American public life clashed this spring in oral arguments before the U.S. Supreme Court. On one side attorneys for the government argued that religious conviction is really a private, personal matter that should be kept at home, or within the confines of the church and its closely connected ministries. On the other side attorneys for Hobby Lobby Stores and Conestoga Wood Specialties, family-owned, corporate businesses, argued that businesspersons cannot be expected to leave their private moral and religious convictions at home when they enter the business world.

At issue in this case were provisions of the “Patient Protection and Affordable Care Act” (PPACA, popularly known as Obamacare) that require private employers who provide medical insurance to make available a wide range of contraceptive options to their employees. On the government’s required list are four contraceptives that operate after conceptions and implantation of the fertilized egg. Some medical experts use the term abortifacients for these drugs that induce abortions.

The owners of Hobby Lobby, the Green family, who run their large chain of hobby stores, have strong religious convictions against abortion. The PPACA has exemptions from these provisions for churches and their closely affiliated ministries. But there is no exemption for businesses and private companies, no matter how large or small, or how strong their owner’s religious beliefs.

Hobby Lobby is, by any measure, a large company. It has more than 500 stores and thousands of employees. But the depth and sincerity of the Green family’s religious convictions is also unquestioned. David Green, who founded the company in his garage, is the son of a preacher and says that he built the business on biblical principles. The company plays Christian music in their stores, pays their employees at least double the minimum wage, and closes on Sundays, a busy retail day.

But the family’s commitment to religious values goes even beyond these apparent business sacrifices. David Green, according to Forbes, donates one half of the company’s pretax earnings to Christian causes. Over the years he has funded Christian colleges and universities, Christian missions, and the distribution of nearly 1.5 billion pieces of gospel literature. Over the years these gifts have totaled nearly $500 million.*

Despite this impressive evidence of deep religious conviction and commitment, David Green and his family are faced with a skepticism that their religion should be taken seriously by the government and the business world. The fundamental question faced by the Supreme Court: Is religion a hobby that the owners of Hobby Lobby and similar businesses must leave at home?

The oral arguments revolved around three subquestions, the answers to which will shape the future of religious freedom in the business world, and hence in many of our lives, for years to come. These questions, and possible answers, are:

Can corporate owners bring their moral and religious convictions into the commercial marketplace and use them to shape their business decisions and actions?

From the arguments it would seem that a clear majority of the justices believed that corporations, at least privately held ones, with a small ownership group, should at least have the right to raise claims of religious freedom and conscience on behalf of their companies. From left-leaning justices such as Stephen Breyer and Elena Kagan, to those on the right, such as Antonin Scalia and Chief John Roberts, the message was sent that it would be going too far to say that incorporating as a business prevented the raising of a religious-freedom claim.an for-profit businesses, as opposed to churches or not-for-profit religious institutions, assert religious rights at all? In short, can a corporation have a conscience? This is not such a strange idea, as the Court has previously ruled that corporations are persons under the Constitution, and that as such they have free- speech rights that protect them in their expression of political advocacy.

Should the majority decide that indeed businesses do have basic religious freedoms, this will help provide clarity to a range of disputes in society, including the balance between religious freedom and gay rights. Shortly after the Hobby Lobby argument the Court declined to hear a case from New Mexico in which a photographer was successfully sued for refusing, on religious grounds, to take pictures at a lesbian commitment ceremony. Should the Supreme Court in Hobby Lobby make clear that businesses have religious freedom rights, it will provide greater protections for a variety of Christian businesses, including florists, bakers, photographers, and wedding caterers, to service clients consistently with their religious convictions.

But beyond the wedding industry, the principle that business owners can, and even should, consult moral and religious teachings in operating their businesses should be good for business, and the country, generally. The financial meltdown of 2007 happened in good part because business leaders consulted only their short-term financial interests, and not larger moral or religious principles. To paraphrase Thomas More: “When executives forsake their own private consciences for the sake of their business duties, they lead their business, and their country, by a short route to chaos.” Hopefully the Catholic majority on the Court can make room for principles of morality and conscience in America’s marketplace.

Can the religious convictions of corporate leaders be allowed to inconvenience others or the government?

Again, a majority of the Court suggested that the right to religious freedom itself only made sense in the context of some amount of inconvenience to the government and others. Exempting conscientious objectors from the army, allowing employees their holy days off, providing kosher foods in jail, all these require some extra effort or expense on the part of the government, or even private citizens.question related to the first is: Even if businesses can invoke religious freedom, should they be able to do so if it inconveniences other citizens or the government? The discussion of this point before the Court revolved around the question of whether the government could find some alternate way of meeting its interest of providing family-planning health care to employees. Could the government, asked some justices, be required to directly supply the disputed contraceptive services to employees should their employers have conscientious objections to it?

Minority rights of any kind only become an issue when they annoy, intrude, or otherwise inconvenience some other party. Still, as a country we think rights are sufficiently important to accept at least some level of inconvenience in their vindication. Why should this calculus be any different for businesspeople than for employees or other persons in society? Do we sign away our religious rights when we obtain a business license?

The government attorney made a great deal of the fact that no business or company had prevailed on a First Amendment religious-freedom exercise claim in the history of the Supreme Court. The plaintiff’s attorney pointed out, however, that the Court had considered a number of free-exercise cases involving businesses, and although the businesses had lost, the Court had never ruled that they did not actually have the rights to religious freedom because they were businesses.

The Court’s answer to this question may seem to be less clear than the first one. But a majority of the justices do seem to be leaning toward giving businesses, at least closely held ones, the benefit of meaningful religious freedom protection, even if it causes some inconvenience to others. Again, this seems the right result for a country that is committed to the religious freedom of all, and was based on the belief that a republic and its marketplaces could only flourish as morality and virtue was seen in its citizens, including its merchants.

Can corporate morality or religious belief be used to trump the individual morality and freedom of employees?

The most difficult question the Court faces is this final one: Should the religious convictions of business owners be allowed to significantly infringe the moral views, rights, and freedoms of its employees? At one level, it is fine to say that the state must endure some inconvenience to accommodate the religious convictions of business executives. But when should those convictions be allowed to impact the hundreds, and even thousands, of employees of companies, when those employees do not share those values and convictions?

A case in point is that of the employees of Hobby Lobby. Probably many of them have no moral objection to abortifacients and would like to use this form of birth control. If Hobby Lobby refuses to provide it, does this become an infringement of their right to make private moral choices about family planning? In this case the infringement will probably not be great, as it was pointed out that the employees would have alternate sources of these services, either through the government or by purchasing the relatively low-cost products directly themselves.

But other cases may not be so easy. The liberal justices asked, “What about the company that does not believe in contraceptives at all? Or business owners that have religious objections to vaccines, antibiotics, or blood transfusions?” Such convictions could keep very important, even life-sustaining, medical care from employees who would otherwise be unable to purchase or obtain these services. And what about business owners that might have religious convictions against the mixing of the races, or women in the workplace? How far are we willing to bend or break our other discrimination laws to accommodate these more extreme convictions?

The Court seemed to be searching for some guidance to these questions. One principle that a majority proposed was that religious convictions will probably be limited to privately, versus publicly, held corporations. Companies owned by a large number of shareholders will have a great deal of difficulty in showing a shared, common religious conviction. So the protection will likely be limited to closely held companies run by individuals or families with a shared sense of religious identity. This will often limit the size of the company, though as Hobby Lobby itself shows, there can be very large privately held companies.

The Court also acknowledged that religious freedom is not an absolute right; it must be balanced against the compelling interest of the state in protecting the life, liberty, health, and property of all its citizens. Religious convictions that could threaten the basic health and life of others will not, as case law has already shown, be given legal protection. As far as other socially offensive views relating to race or gender or, increasingly these days, sexual orientation, the Court will probably have to take these on a case-by-case basis. The result in any given case will depend on the size and nature of the business, the magnitude of the impact on the protected class, and the nature of the burden on the religious practice.

Too often these days rights groups want to make their right absolute, whether it be race, religion, gender, or sexual orientation. But the reality is that all rights exist in a balance and tension with other rights. Religious freedom could actually be injured if the Court extends too absolute a right of freedom to businesses, as corporate employees could see a corresponding loss of their own rights and freedoms in the workplace. While the Court should not treat religious liberty as a hobby, neither should it give business owners so much freedom that its employees are required to leave their own moral and religious freedoms at home.

There is some danger of this result, as the Court has shown a willingness to extend freedoms to corporations at the expense of the individual. We saw this in the case of Hosanna Tabor v. EEOC, where the Court ruled that an elementary school teacher of a parochial school had no civil rights protections in the workplace because her church had designated her as a minister, despite the fact that she spent most of her time teaching secular subjects. We do not want religion sidelined as a hobby; but neither do we want it elevated as a right primarily for the powerful, whether measured by majoritarian support or financial resource and power.

Ultimately, we can hope for, and the justices seemed open to, a decision that would grant business owners meaningful religious freedom, but in a manner that preserves and safeguards the civil and religious freedoms of their own employees. Anything less would be to replace state infringement of religious freedom with private business intrusions into personal freedoms. Hobby Lobby and its coplaintiffs should certainly understand the problem of forcing employees to leave their basic freedoms at home when they come to work.

Author: Nicholas P. Miller

Nicholas Miller, Ph.D., is an attorney and associate professor of church history at Andrews University, Berrien Springs, Michigan. He is the author of the The Religious Roots of the First Amendment (New York: Oxford University Press, 2012), which more fully develops the theme of this article.

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