In Hobby Lobby Case, Progressives Reincarnate an Old Southernism

iStock_000021534725LargeIn Sebelius vs. Hobby Lobby Stores, Inc. we are asked whether a private corporation has the right to buy health insurance that does not pay for abortion.

Progressives like Erwin Chemerinsky argue that the issue is simple: A private partnership might have the right to buy insurance according to the conscience of the owners but a corporation is a separate entity, created by the state, and, as such, is and must be secular. It is a “secular corporation.”

But why must that be the case? If anything chartered by the state is, in effect, created by the state, and has the same obligations as the government has with respect to the establishment clause, perhaps. (Or perhaps Professor Chemerinsky is innovating here. He used the term “secular corporation.” We may well ask what the history of that term is. Is the term new or old? And what, exactly, does it mean?) Recall that Jefferson referred to religious liberty as a form of “establishment.” For him, of course, natural law, being reason and not religion, was “secular” (to use our term for it)—inside the “wall of separation.” Is that Professor Chemerinsky’s position? Doubtful.

I wonder if the Progressives have, in the Hobby Lobby case, taken up an old Southernism. I recently found myself re-reading Monica Najar’s fine article on Virginia Baptists and the problem of emancipation in the decades after 1776.[1] Briefly stated, Najar’s argument is that in the Revolutionary era, many Virginia Baptists, and many Baptist churches, declared that slavery was sinful, and that Baptists in good standing in these congregations may not own slaves. In 1785, a general committee convened and, along with calling for disestablishment in Virginia, also declared “hereditary slavery to be contrary to the word of God.” (Najar, 163). Although some Baptists freed their slaves, that was not the most popular position, even among committed Baptists, and it was never reaffirmed, for there was no general consensus in the congregations.

Attacking slavery was not the dominant position in the South, although it was more common immediately after the American Revolution than it would be in decades to follow. Many Virginia Baptists (including Virginia Baptists who moved to Kentucky, who are the focus of much of Najar’s article), remained in the anti-slavery camp, however. What could be done? The solution, ultimately, was to declare slavery a civil matter, beyond the legitimate reach of the churches.

Ultimately, Najar notes,

For the anti-emancipationists, the state served a very different role, one that established a distinct authority for human behavior. For these Baptists, the boundary between church and state became of supreme importance because it allowed them to mark slavery as a “political” and ‘”legislative” matter and, therefore, not their concern.

The attempt to push the slavery issue into the realm of the civil state did not sit well with many of the anti-slavery Baptists, “as if the church was beholden to the world for assistance in matters of religion, and had no king nor constitution of her own, and as if the laws of Kentucky constrained men to commit wickedness in the land, a stigma on our constitution.” (Najar, 181) These Baptists believed that the good life was the life lived according to their moral principles. These could not be cabined inside their church buildings and consciences. To live morally, they had to be able to live their principles.

And that brings us back to the Hobby Lobby case. The Progressive position follows the Southern model. Religious principles, they hold, should be cabined in as narrow an area of our lives as possible. Outside that area of our lives, it is our duty to live according to the social and legal consensus around us. That allows for people to have a certain liberty of conscience, amid a larger social and legal consensus, particularly when the question at issue is who is a “person” deserving protection in the eyes of the law. At the same time, this approach minimizes the diversity in possible ways of life. That might have been necessary in a slave society. It is probably not a coincidence that most of the utopian communities founded in the United States between the Founding and the Civil War were founded in the North. The South was uncomfortable with such outliers.

Is such uniformity, with its demand that we cannot, as a rule, live our moral principles in our businesses unless those principles are those of the majority of a given time and place, really the model Americans want in this age of diversity, and in a continent-wide America, with over 300 million citizens, and over 18 million business corporations?

Similarly, is a corporation a creation of government, as it was, arguably, in the days before general incorporation law? Or is the right to create a corporation, according to uniform laws, fundamental in our society and, along with that, our right to conduct our business affairs according to our consciences?

Don’t corporations deserve the same rights of free association as other NGOs?

“Separationism,” after all, is only one means of disestablishment, and it might not be the most fitting one in the age of the mega-state. As the state grows, it is government that is intruding upon civil society, and upon religion’s natural sphere, not the other way around. We should also remember that, at least according to Tocqueville, businesses are part of civil society—or, to use today’s lingo, they are NGOs.

Here is Tocqueville:

Only those associations that are formed in civil life without reference to political objects are here referred to. The political associations that exist in the United States are only a single feature in the midst of the immense assemblage of associations in that country. Americans of all ages, all conditions, and all manufacturing companies, in which all take part, but associations of a thousand other kinds, religious, moral, serious, futile, general or restricted, enormous or diminutive.

In Tocqueville’s day, some business corporations, such as those in Lowell, Massachusetts, or New Harmony, Indiana, were also part of larger attempts to build ideal, or perhaps simply good, communities. Not all business corporations were merely secular. Most such businesses were in the North. There is no reason to assume differently today. The Northern model makes sense.

We should also remember what James Madison wrote:

As a charter of incorporation the bill creates an artificial person previously not existing in law. It confers important civil rights and attributes which could not otherwise be claimed.

Madison was here arguing against a particular corporate charter there. He objected to the Bank of the United States because the bill created an entity with important civil rights with which the government could not interfere. Madison’s later reversal on the Bank of the United States notwithstanding, he clearly understood the civil rights and liberties conferred by corporate personhood.

 

[1] Monica Najar, “‘Meddling with Emancipation’: Baptists, Authority, and the Rift over Slavery in the Upper South,” Journal of the Early Republic 25:2 (Summer, 2005), 157-186.

Richard Samuelson

Richard Samuelson is Associate Professor of History at California State University, San Bernardino.

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Comments

  1. R Richard Schweitzer says

    It is, of course, much more intellectually stimulating to discuss constitutional and philosophical issues, but some attention should be paid to the real issue in this case, which will also be an issue in many other cases involving the exercise of the discretion granted to the HHS secretary. This case could ultimately be expanded to the discretion exercised by other agencies in the Federal Administrative State. That, not religious freedom, may turn out to be the most significant consequence of this case.

    Some references are made to “Law,” which are really references to enacted statutes (legislation). The PPACA statute does ***not*** mandate the insurance or health care provisions whose imposition is complained of by the plaintiffs in the underlying case.

    The requirements for those provisions were established in the ***exercise of bureaucratic discretion*** apparently determined by the HHS secretary, in her sole discretion, to be “essential” to health care. There is no other provision in the statute for the requirement of this form of “benefit” to be purchased by individuals, or provided by employers.

    There **is** a statute, the RFRA, with specific provisions and conditions for the protection of religious freedom rights.

    While this writer has not completed a full examination of the wording of the PPACA, it is questionable whether there is provision that all actions and discretion of the HHS secretary “shall have full force and effect of law.” Distinctions may be made between such provision for “Regulations” issued pursuant to the delegation of legislative authority, that may not apply to the discretion granted in determining “essential” coverages in required healthcare contracts.

    If the provisions called for by the exercise of bureaucratic discretion rose to the level of regulation, the provisions for the institution of regulations would have to be followed. This does not appear to have been done in the case of require provisions for essential coverage under the PPACA.

    The fundamental issue here, and it can be extended to the constitutional concerns as well, is whether or not the exercise of bureaucratic discretion, delegated by the legislature, shall take precedence over the specific language of an actual statute – in this case, the RFRA.

    This is not the case of a clash of the provisions of one statute with another. It is a clash of the exercise of bureaucratic discretion with provisions of a statute.

    • gabe says

      Am I reading this correctly?
      Is there no language mandating the mandate but only language authorizing this under agency discretion?
      I am tempted to say that they really were “winging it” but it rather seems as if this was a deliberate attempt to mask their intentions and actions behind the wall of agency discretion.
      Of course, it also means that the Great Intellect fronm San Francisco, Nancy Pelosi was lying (surprise) when she declared that “you have to pass the bill to know what is in it.” Had one read it, one would still not know what was in it; for that we would have to wait until Queen Sebelius issued various encyclicals (and of course dispensations). Rather medieval when you think of it!

  2. E.Patrick Mosman says

    I was taught by my parents, Sisters in grade school and Jesuit priests
    and brothers in high school that one’s duties were to God, Family, Country in that order.
    It is Marxist non-theological doctrine to eliminate God and the
    Family and leave only the State that one owed not only allegiance but
    also his/her soul. Francis Cardinal George described it as, “Freedom
    of worship was guaranteed in the constitution of the former Soviet
    Union,” Cardinal George wrote in a column in the Catholic New World.
    “You could go to church, if you could find one. The church, however,
    could do nothing except conduct religious rites in places of worship
    — no schools, religious publications, health care institutions,
    organized charity, ministry for justice and works of mercy that flow
    naturally from a living faith. We fought a long Cold War to defeat
    that vision of society.”

    • R Richard Schweitzer says

      If you or others would care, I can post the full statutory section 1302 ( b) referred to by 1302 (a) (1) which states:

      “In this title, the term ‘‘essential health benefits package’’ means, with respect to
      any health plan, coverage that—
      (1) provides for the essential health benefits
      *** defined by the Secretary***
      under subsection (b);

      Under the 10 items specified in (b) there is no requirement for the provision of coverage for the costs of contraceptives or abortifacts – unless –
      Somehow, the wording of “Preventive wellness **services** and chronic disease management” of paragraph (I) of 1302 (b) is really, really stretched. In which case, “services” could include abortion procedures. Note: services, not medications or devices.

      Nothing prevent an employee (or anyone) from obtaining those items directly, or through a separate “health” plan – like dental care.

    • says

      EPM:

      It is sometimes easy to forget the the institutional Church has outlived the Roman empire; the Holy Roman Empire; the first, second, third and fourth french republics; the Han dynasty; the Mongol empire; the Abbysid, Fatimid and Ottoman Caliphates; the Weimar Republic; the Third Reich; Czarist Russia; The Soviet Union; the Aztec empire; the Greater East Asia Co-prosperity Sphere, etc. etc. It has done so with good leaders and bad, doing both good and bad things. And all because of a belief that is inherently obvious to three year olds but which forever evades the grasp of the clever, learned and powerful.

      • E.Patrick Mosman says

        The survival of the The Church for over 2000 years was not forgotten, however, only in America was Freedom of religion and the free exercise of one’s religious beliefs guaranteed by a Constitution.
        Francis Cardinal George described it as, “Freedom
        of worship was guaranteed in the constitution of the former Soviet
        Union,” Cardinal George wrote in a column in the Catholic New World.
        “You could go to church, if you could find one. The church, however,
        could do nothing except conduct religious rites in places of worship
        — no schools, religious publications, health care institutions,
        organized charity, ministry for justice and works of mercy that flow
        naturally from a living faith. We fought a long Cold War to defeat
        that vision of society.”
        “The First Amendment. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
        The Supreme Court recently ruled that corporations have the constitutional right of “Free Speech” which the liberal justices voted against. Now they same group are opposed to granting owners of businesses the right to “the free exercise of religion” guaranteed by the First Amendment. Justices are supposed to uphold the “Freedoms” in the First Amendment not try to impose government laws, rules and regulations which restrict,impede or prohibit the “free exercise” of religious beliefs. The Constitution does not require that religious beliefs and practices be left behind in the house of worship when one leaves it.

  3. Richard Lewis says

    Not a single citizen is required to work for Hobby Lobby. And no citizen has the right nor obligation to work for Hobby Lobby. Don’t like Hobby Lobby’s healthcare benefits, don’t apply.

    This entire issue is of a part with the agenda to destroy freedom. It’s that simple.

  4. says

    Associate Professor Samuelson, Richard, an excellent question and an excellent answer. “… Professor Chemerinsky is innovating here. He used the term “secular corporation.” We may well ask what the history of that term is. Is the term new or old? And what, exactly, does it mean?) Recall that Jefferson referred to religious liberty as a form of “establishment.”
    I would like to see Professor Chemerinsky reply to your inquiry. Simply because, Jefferson’s reference as a form of “establishment” – is MORE than a “reference”. If he, Chemerinsky, or you Richard, or I, or the reader, examines the First Amendment Clause “nor prohibit the free exercise thereof “– Religion WAS ESTABLISHED — by by State ratification –INTO the First Amendment; plain as the nose on our faces.
    (It’s late for this old gent … I may add to your blog, but for now – thank you for this particular section.
    Respectfully, John

  5. nobody.really says

    Progressives like Erwin Chemerinsky argue that the issue is simple: A private partnership might have the right to buy insurance according to the conscience of the owners but a corporation is a separate entity, created by the state, and, as such, is and must be secular.

    But why must that be the case? If anything chartered by the state is, in effect, created by the state, and has the same obligations as the government has with respect to the establishment clause, perhaps.

    Great! So the issue isn’t about the freedom to follow your conscience while conducting business; it’s about the freedom to use the corporate form for this purpose. Hobby Lobby proudly proclaims that its actions are indistinguishable from the personal actions of its principle shareholders. Yet when a court finds that a corporation is merely the alter ego of its founder/shareholder, that’s generally a precursor to finding that the founder/shareholder has abused the corporate form and created a sham enterprise. Hobby Lobby seems to be confessing that it’s a sham right in its filings.

    If management wants to impose its religious views via its business operations, at a minimum, management should re-organize the business as a sole proprietorship or common-law partnership – and expose themselves to the risks and liabilities that attach thereto.

    Of course, we know what would happen then: People would claim that the Archangel Gabriel told them in a vision that they their religion compels them to receive the benefits of US corporate law. In fact, Gabriel specified Delaware corporate law, because it provides the greatest legal protections for the priests — er, I mean, for management.

    • The Archangel says

      ” Yet when a court finds that a corporation is merely the alter ego of its founder/shareholder, that’s generally a precursor to finding that the founder/shareholder has abused the corporate form and created a sham enterprise. Hobby Lobby seems to be confessing that it’s a sham right in its filings”

      Stretching it a bit here, aren’t we?

      I know the Wikipedia reference may seem on point to you; however, it misses by a wide margin when attempting to describe the actions of Hobby Lobby. Or are you asserting that they are engaging in fraud, violating a contractual or corporate obligation, etc. etc.?

      And as an Archangel, my greater concern is with the PRIESTS of the Federal Guvmint and its host of agencies who seem to have no difficulty finding legal protections for their dubious activities.

  6. nobody.really says

    This “Southernism” analogy is just silly.

    While slavery was legal, certain Baptists concluded that their religion forbad the practice, while other Baptists concluded that the merits of slavery was purely a secular matter beyond the reach of their religion. And this is analogous to the ACA because federal statute compelled all employers, including those who had a religious objection to slavery, to own slaves. Oh, wait – that’s absurd.

    No, I meant to say that it’s analogous because the law that defends a person’s right to refuse to own slaves also defends that person’s right to free his neighbors’ slaves. Oh, wait – that’s wrong, too.

    There is no ACA issue about the scope of a person’s discretion to follow his conscience or religion. The sole issue concerns government’s response to those actions – an issue that was utterly absent from Samuelson’s account of the Baptists. The owners of Hobby Lobby can refrain from complying with the ACA on contentious grounds. Henry David Thoreau could withhold taxes on contentious grounds. Martin Luther King could violate injunctions on marching on contentious grounds. Daniel Berrigan could trespass and damage weapons facilities on contentious grounds. And they all bear the legal consequences of their beliefs. That’s the nature of civil disobedience.

    If Samuelson is a historian of the nation’s early years, he might check out debts regarding adoption of the Second Amendment. Based on the (apparently faulty) assumption that they were debating a provision regarding militias, they debated contentious objection to a military draft. Many opposed granting people such discretion, preferring to leave it to the discretion of the Executive. But others argued that individual continence must prevail and people must have the legal right to opt out — provided they paid to hire a substitute, or found a replacement volunteer. The idea that people should be able us use religion as an excuse to shift the burden of their civic duties onto others was beyond anyone’s imagining.

    • gabe says

      “The idea that people should be able us use religion as an excuse to shift the burden of their civic duties onto others was beyond anyone’s imagining.”

      Only if one IMAGINES that it is my civic duty to provide such support – which it most assuredly is not!

      • gabe says

        “And this is analogous to the ACA because federal statute compelled all employers, including those who had a religious objection to slavery, to own slaves. Oh, wait – that’s absurd.”

        What is absurd is an inability to recognize the difference between NOT compelling an employer to own slaves and (in today’s issue) COMPELLING one to provide a morally objectionable service.

    • Orson says

      nobody.really says “There is no ACA issue about the scope of a person’s discretion to follow his conscience or religion.”

      WRONG – three religions a SPECIFICALLY exempted from AAHCA: Muslim, Amish, and Christian Scientist. Why didn’t the HHS follow these lawful precedents and authorize others?

      Because all the agencies at the command of Dear Leader are dancing to His Tune, namely that ObamaCare is only legitimate if it sanctions Party Approved objectives. If your Holy Doctrines fall outside of them, tough shit for you!

      We live under fascism today. No one uses the “F” word, but that’s what it is today. No one discusses or debates the merits of fascism today because the Ruling Class has quietly and comprehensively embraced another fascist doctrine – Gleischaltung, ie, the early Nazi policy of enforcing coordinated belief in the omnipotent beneficence of centralized state conformity to its Beliefs.

      This, you are shamed or hounded for dissenting from Gay marriage, from abortion on demand, from contraception on demand, from affirmative diversity,and if you do disagree, you’re met not with argument but smears: you are racist, homophobic, Islamophobic and are a racial bigot for questioning Dear Leader.

  7. nobody.really says

    In Tocqueville’s day, some business corporations, such as those in Lowell, Massachusetts, or New Harmony, Indiana, were also part of larger attempts to build ideal, or perhaps simply good, communities. Not all business corporations were merely secular.

    Precisely. Many companies had company towns, and often sought to impose the social beliefs of management on employees. Some companies even banned people such as the Jehovah’s Witnesses from trespassing in their towns because the management did not share the religious perspectives of the Witnesses. And guess what? The courts said that religious freedom requires that the law defends the rights of the Witnesses, and the employees that want to associate with them, not the rights of management to impose their beliefs on others. See Marsha v. Alabama, 326 U.S. 501 (1946).

    And so the wicked, oppressive government imposed its uniform freedom of religion on everyone, thus suppressing diversity. Much like the oppressive government brutally tramples on the autonomy, privacy, and sanctity of the family when it intervenes to stop a man from beating his wife and kids. Damn tyranny!

    • The Archangel says

      Another specious argument.
      “..not the rights of management to impose their beliefs on others. ”

      The folks at Hobby Lobby do not appear to be attempting to impose their beliefs on anyone; rather, they appear to be attempting to prevent the government from restricting their own religious beliefs by being compelled to fund / provide morally objectionable services. Has Hobby lobby fired any of its people who desire such services? Have they demoted anyone? Have they “demonized,” sermonized” or ostracized anyone. Have they told their employees that they can not use contraceptives? No – only that hobby Lobby chooses not to provide said benefit.

      Once again, you turn an argument on its head and proclaim that a case supporting religious liberty is to be used to buttress the suppression of religious. I suppose that also comes from Wikipedia.

      Anyway, it strikes me that your argument when only slightly extended would lead me to believe that since I use the public highways, I must also support Planned Parenthood, provide photo services for gay / polygamous weddings, etc. etc.

      Thank god, I have wings and can fly -oh, wait the FAA may come after me. I guess I am doomed. Guess i better get more flashbulbs ready – wouldn’t want to be criticized or sued because I took more pictures at a straight wedding than at a gay one.

      BTW: I would have recommended incorporation in the Bahamas rather than Delaware. I don’t want Joe Biden pointing his shotgun at me!!!!!

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