Writing on Religion: Corporate religious freedom

Mark E. Rondeau

As you no doubt know, reaction to the Hobby Lobby decision has been quite diverse and passionate. As with most issues, Christians and other people of faith are by no means all on the same page about it, either.

In a 5-4 ruling, the U.S. Supreme Court on Monday decided that three family-owned corporations, Hobby Lobby, Mardel, and Conestoga Wood, could opt out of the mandate to provide contraceptive coverage to workers in the Affordable Care Act (ACA).

The objection was to four of the 20 types of contraception in the mandate - ones the plaintiffs believe produce abortions.

Justice Samuel Alito, over the dissent of the court's four liberal justices, wrote in the majority opinion that forcing such companies to pay for these means of contraception would violate the 1993 Religious Freedom Restoration Act (RFRA).

The majority opinion states the ruling would only apply to such "closely held" corporations, and that there are other ways for the administration to provide this coverage for the women who work for these companies who want it.

Reactions to the decision

Here are some reactions from faith-based sources I have gleaned:

"We welcome the Supreme Court's decision to recognize that Americans can continue to follow their faith when they run a family business. In this case, justice has prevailed," said a statement from Archbishop Joseph E. Kurtz of Louisville, president of the U.S. Conference of Catholic Bishops, and Archbishop William E. Lori of Baltimore, chairman of the U.S. bishops' Ad Hoc Committee for Religious Liberty.

"Today we are thankful for this step toward maintaining the integrity of our religious freedoms inherent in the First Amendment, but we will also remain ever mindful. The issue is and will continue to be purely and simply about religious freedom," said The Rev. Dr. Matthew C. Harrison, president of The Lutheran Church-Missouri Synod.

However, in Edmond, Oklahoma, a local TV station reports on its website that a group of 30 to 40 protesters gathered outside that city's Hobby Lobby to protest the ruling. The group Faithful America had recruited a local retired Baptist minister to lead a prayer vigil outside the store.

"There are many of us Baptists, as well as other Christians, who believe that religious liberty rights are something inviolable for individuals and not for corporations," said Dr. Bruce Powell, according to the report. "There are a lot of Christians and denominations that are opposed to what the Supreme Court has done."

He added, "The right of religious liberty is a fundamental human right. Corporations are legal constructs. They are not human beings."

The Rev. Harry Knox, president of the Religious Coalition for Reproductive Choice, said in a statement: "No matter how closely-held, a corporation is still not a spiritual being - it does not pray or sit in the pews or bring casseroles to the congregational picnic like my family and I do. It is an insult to the uniquely sacred community cultivated by congregations to consider for-profit corporations legally synonymous with a religious institution."

The Rev. C. Welton Gaddy, president of the Interfaith Alliance, decried the ruling as a "grave error," according to a report by the Religion News Service. He is bothered by all the unanswered questions. "Though it is narrowly about contraception, the principle involved easily could give leeway for judges" in cases where company owners object to providing services for gay customers, Gaddy said. "Those scare me."

"Love it or loathe it, the Hobby Lobby decision is limited in scope. It clarifies how a federal statute, the RFRA, applies to the species of claims made by Hobby Lobby's owners, but it leaves unresolved many other statutory and constitutional questions raised by each side to the dispute," writes John J. Dilulio Jr. on the website of the Brookings Institution.

Dilulio, who served as the first director of the White House Office of Faith-Based and Community Initiatives, adds that the decision "is not germane to the nation's most consequential church-state issues and religious liberty controversies, all of which in one way or another involve religious non-profit organizations."

My take

Irritated by ignorant, erroneous or just plain hyper-partisan distortions posted about the Hobby Lobby case on Facebook, I read the entire decision, including Justice Anthony Kennedy's concurrence and Justice Ruth Bader Ginsburg's dissenting opinion.

While as a Catholic I sympathize with the two families who own and control the operations of Hobby Lobby and Conestoga Wood in their desire not to (albeit quite indirectly) fund the possible use by women employees of contraception that could cause an early-term abortion, I'm not thrilled with this ruling.

For one thing, as noted above and by Ginsberg in her dissenting opinion, it uniquely extends protection under the RFRA to for-profit entities. Previously the law had been applied to just individuals and non-profits with a distinctly religious purpose.

Yet, the only people this ruling benefits are those controlling the for-profit corporation. In the case of Hobby Lobby, it is the Green family, devout evangelicals, and not the corporation's 13,000 employees, doubtless of many faiths and none.

As constitutional scholar Marci Hamilton of Yeshiva University noted in an Associated Press article, more than 80 percent of U.S. corporations are closely held and she said they could "now be able to discriminate against their employees."

I think that statement is alarmist, but in this case, as so often in the past, the Roberts Court demonstrates that it never met a for-profit corporation it didn't like. With economic inequality at levels not seen since the 1920s, I don't feel we need to extend corporate influence in any sphere.

Another point is that despite the almost breezy assurance to the contrary in the majority opinion, it is not entirely clear that the U.S. government will in fact be able to provide alternative access to contraception for these employees without creating another program and making it more difficult for women employed by these companies to obtain birth control.

So like the Rev. C. Welton Gaddy, quoted above, I wonder about the unanswered questions. This ruling may well "open a can of worms," offering politically motivated corporate heads a way to poke more holes in the ACA (Obamacare) and do God knows what else in the name of religious freedom.

However, I also agree with John J. Dilulio Jr. that the most widely significant religious liberty questions/cases are yet to come. He sees these questions revolving around "so-called ministerial exemptions" on things like health insurance coverage, hiring and more that religious non-profit organizations enjoy in their capacity of providing "worship services."

A key question is should religious non-profits retain these ministerial exemptions when "delivering social services that are funded whole or in part by the government" possibly with employees "who are paid in whole or in part with tax dollars."

"The Hobby Lobby decision does not address that question," Dilulio writes, "but President Obama's planned executive order disqualifying organizations that discriminate on the basis of sexual orientation from receiving federal contracts, whether or not the order contains any ministerial exemptions, will put that question at the top of the next 'religion news' cycles."

Mark Rondeau is the Banner's religion editor. He can be reached at mrondeau@benningtonbanner.com. Twitter: @banner_religion.


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