Dan Krisch: Health Care Law Challenge Threatens Church-State Wall
I am kicking over a hornet's nest. Religion, that prickliest of subjects, is once again center stage at the U.S. Supreme Court, as Chief Justice John Roberts' Robed Nonet prepare to decide whether a corporate employer may refuse, on religious grounds, to comply with the contraceptive mandate of the Affordable Care Act. If that challenge succeeds, it will mark a major breach in the (sometimes porous) wall separating church and state.
Remember the good old days when a corporation's only faith was in its bottom line? Alas, now that baby boomers are at the helm, corporations have discovered the profit in identity politics: Companies are people too. And, like the rest of us walking, breathing, thinking beings, corporations now have the right to express themselves in some very personal ways: most notably by engaging in political speech protected by the First Amendment, per Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).
Of course, a corporate right to free speech naturally suggests a corporate right to the free exercise of religion. There seems no principled basis on which to distinguish entitlement to one First Amendment right from another, although there is something of an absurdist element to a corporation "exercising" religious beliefs—as if one might run into ExxonMobil sitting next to you in a church pew, or spot Google at a Buddhist retreat. Certainly, the court has never made such a distinction with actual homo sapiens, so it seems far-fetched to suppose that the court will do so with our newfound cousin homo corpiens.
The soundness of that logic will be tested next month when the court hears argument in the Sebelius v. Hobby Lobby Stores, 13-354. Hobby Lobby may sound like the name of a stamp and coin-collecting show on Discovery Kids, but the issue it raises—corporate refusal to comply with federal law on religious grounds—is deadly serious. Make no mistake: This case is Waterloo, either for progressive legislation in this country or the constant, well-orchestrated effort of religious conservatives to obstruct it.
Hobby Lobby, for those of us east of the Mississippi, agnostic, or both, is an arts-and-crafts chain with more than 500 stores and about 13,000 employees. The owners of Hobby Lobby claim to operate the company "in a manner consistent with Biblical principles," according to Hobby Lobby Stores v. Sebelius, 723 F.3d 1114, 1122 (10th Cir.) (en banc). (This does not mean, as I had desperately hoped, that water turns into wine at Hobby Lobby board meetings, but rather that the trustees who run Hobby Lobby, according to court filings, must "regularly seek to maintain a close intimate walk with the Lord Jesus Christ by regularly investing time in His Word and prayer.")
It also means that corporate policy flows from the owners' "belief that human life begins when sperm fertilizes an egg … [and that] it is immoral for them to facilitate any act that causes the death of a human embryo." Unconcerned with whether all 13,000 of its employees agree with that belief (it seems safe to assume that at least some do not), Hobby Lobby sought an injunction under the deceivingly named Religious Freedom Restoration Act (as if, at the time of its passage, jackbooted government thugs were converting people to atheism at gunpoint) to avoid having to comply with the ACA's contraceptive mandate.
Last summer, the U.S. Court of Appeals for the Tenth Circuit ruled in Hobby Lobby's favor, with a majority of the judges concluding that the First Amendment does protect a corporation's right to free religious expression. Around the same time, the Third Circuit ruled the other way in a similar challenge by a Pennsylvania cabinet-maker—and so the whole mess is now squarely in the Supreme Court's lap. Sad to say, the logic of Citizens United points inexorably to one conclusion: If companies have the right to free speech, they must also have the right to freely exercise their religion. As the Tenth Circuit majority opinion pointed out, there is "no reason the Supreme Court would recognize constitutional protection for a corporation's political expression but not its religious expression."
If so, let us watch as the horribles parade by: Refusal to comply with the ACA's contraceptive mandate is only the drum major—marching hard on its heels might be an employer who refuses to pay for vaccinations, or HIV testing; or a company run by Quakers that withholds some of its taxes because funding the U.S. Department of Defense conflicts with its owners' pacifist beliefs. In short, a slippery slope to anarchy.
When asked his religion, Benjamin Disraeli, that master conservative, would reply, "Sensible men are all of the same religion." And when pressed on what that was, he would demur, "Sensible men never tell." I hope—perhaps vainly—that the Supreme Court recognizes the wisdom of keeping one's private beliefs private rather than elevating them to a position of public primacy.•
Dan Krisch is a partner at Halloran & Sage in Hartford, where his practice focuses on appellate and civil litigation. His email address is email@example.com and you can learn more about him at www.halloran-sage.com.