Free Exercise, the Contraceptive Mandate and the Corporate Form

Media coverage of the contraceptive-mandate case has emphasized the red herring of whether for-profit corporations like Hobby Lobby can assert constitutionally or statutorily protected religious beliefs (see, for example, here). David Catron has a piece at The American Spectator correcting that specious formulation, noting that the question before the Supreme Court is not whether corporations can claim protection under the Free Exercise clause but rather whether individuals relinquish theirs simply because they adopt the corporate form.

Hobby LobbyThe 10th Circuit decision in the case makes quick work of the question, noting that the Green family, owners of Hobby Lobby, clearly organized the business around religious principles well before the HHS mandate. Moreover, the Dictionary Act’s definition of “person”—the protected category under the Religious Freedom Restoration Act—plainly includes corporations. Testing the religious sincerity of a publicly owned corporation would, the 10th Circuit further observes, present novel and difficult questions—but those are not at stake in the case of Hobby Lobby, which the Greens own.

A concurring opinion from Judge Harris Hartz of the 10th Circuit lucidly dissects the nature of the corporate form, noting that nothing about an individual’s decision to limit personal liability entails forgoing his or her Free Exercise rights. While the corporate form may impose particular obligations, he observes, it does not involve the forfeiture of all liberties.

Corporations, to be sure, are artificial. They exist to further the public good. But on the Founders’ understanding, all rights, regardless of who holds them, are regulable to promote the public good—save, however, one: conscience. The reason, as Madison, following Locke, argues, is that no good could rationally be served by its limitation. For the Supreme Court, this really ought to be an easy one.

Greg Weiner

Greg Weiner is a contributing editor of Law and Liberty.

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  1. R Richard Schweitzer says

    Why is it in this particular case that all of the concentration is upon the question of the validity of the “defense” rather than on the invalidity of the “aggression” that has given rise to the need for defense?

    What has occurred here is the exercise of bureaucratic discretion authorized by legislation (we leave open the questions about the legislation).

    The bureaucratic discretion has been exercised to replace previous privately determined discretion which reflected ideological preferences that no legislation is constitutionally empowered to abridge. If the impact of exercise of bureaucratic discretion impairs the exercise of private ideological preferences ***however exercised*** then that bureaucratic discretion must be subject to limitations. There must be limiting principles to bureaucratic discretion.

    Consider again, the following hypothetical:

    In the regulation of interstate commerce, legislation establishes a Bureau with discretion to establish standards for operations of restaurants. In doing so the Bureau determines that all Chik-Fil-A restaurants must conform to the regional standards which may require that the restaurants provide fully staffed services 7 days a week which would impinge upon the present ideological preferences of employer and employees for Sunday closure in deference to their ideology.

    Is that exercise of bureaucratic discretion valid? On what is claimed validity based?

    It is being asserted that “corporations have no religious beliefs; only individuals have religious beliefs.” While that leaves open the consideration that corporations are simply a form of human activity which involves and expresses human ideology, it is equally true that “governments have no interests (prevailing or otherwise) only individuals have interests, individually or in common.”

    This current case should be resolved on the grounds of invalidity in the exercise of bureaucratic discretion.

  2. says

    Good post Greg, thank you. Interesting thought process Richard. The judge did hit the deference to the First Amendment, ” nothing about an individual’s decision to limit personal liability entails forgoing his or her Free Exercise rights.” Suffice to say.
    Respectfully, John

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