Hobby Lobby Part II
By Francis Migliore
Although the nuclear deal with Iran and the 2016 presidential race (once again at our throats) have garnered a majority of the media’s attention within the last several weeks, Indiana’s new religious freedom law has not gone unnoticed.
Ostensibly, the law “Provides that a person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a state or local government action may assert the burden as a claim or defense in a judicial proceeding.” In essence, anyone who is accused of discrimination, say, refusing to cater a same-sex wedding, can plead in a court of law that their faith prevents them from doing so.
There are two problems. The first is fairly obvious: it opens up the possibility for discrimination under the guise of religious belief, which may or may not always be the case. I don’t doubt that certain people who aren’t at all hateful might be unwilling to cater or be the photographer at a same-sex wedding because they feel their conscience compels them, but nonetheless, the risk is still there.
The second is more subtle, and in my view more important. The Indiana General Assembly defines “person” to mean not only individuals and religious groups, but additionally to mean “a partnership, a limited liability company, a corporation, a firm, a society, a joint-stock company, [or] an unincorporated association.”
While most people understand the Indiana law to be the latest flashpoint in the culture wars (and they are right to recognize it as such), many fail to notice that it is also a flashpoint in the legal battle over whether or not corporations are people. Think of it as Hobby Lobby part deux, in which an employer or business seeks to avoid an obligation, whether that entails avoiding a contraception mandate or refusing to cater a same-sex wedding.
In the Hobby Lobby case, a joint stock corporation based its case on the Religious Freedom Restoration Act of 1993 and the Supreme Court held that the Department of Health and Human Services mandate to cover contraception as part of an insurance plan was a violation of the 1993 RFRA. However, that law didn’t give the word “person” as extensive a definition as the Indiana law does. Hence, this law opens further the legal can of worms that is corporate rights. If the law is challenged in court, and it’s reasonable to think that it will be, the result could be that not only are corporations people, they are also people with religious rights.
The problem with for-profit corporations using religious freedom as a shield is two-fold. There is often a discrepancy between how pious corporations intend to be and how pious they actually are. According to an article in Forbes, Hobby Lobby invested money in mutual funds, which invested said money in companies that produce the very sort of contraception that Hobby Lobby sought an exemption from providing.
The second problem is the legal quagmire created as the distinction between corporations and people becomes more obfuscated. The new legal precedent being set by these cases, and the potential for the setting of further precedent means that it will be more difficult to hold accountable for-profit corporations in the way that they conduct business. In this particular instance, that might mean the right of a for-profit corporation to deny services. In the long term, who knows what new “rights” corporations could discover. The possibilities seem to be wide-ranging in the worst kind of way.
Freedoms of Corporations
Everyone has heard the story of the evil corporation. It has become such a ubiquitous trope in our society that it probably does not even need explanation. The story goes a little something like this: a money hungry corporation does something unambiguously evil in order to increase its profits at the expense of normal, hardworking people. And everyone believes it because corporations aren’t people who might shy away from doing something horrible but rather, a faceless entity devoid of human emotion.
This story has always sounded a little hollow to me. When Occupy Wall Street swept the country, the tagline corporations are not people started taking over the internet. People were outraged that faceless corporations were being given the same rights as other people – specifically their right to free speech.
So if corporations are not people, what are they? The term corporation, legally, refers to a group of people who are allowed to organize their interest and work together as a single entity. This gives them the opportunities to pool capital, organize more efficiently and a host of other benefits for running a business. But at the end of the day corporations are just that – people who joined together to try and make some money.
Why is it such a scandal that these people, once they band together, are still given the rights guaranteed to them by the Constitution? By perpetuating the myth of the faceless corporation, we have forgotten that these are also people. Every decision made at a corporation is made by a real person, with real concerns and real human emotions. There are bad people, and consequently there are corporations run by bad people that can do bad things. But so can governments, unions and pretty much any other organization where people come together.
This brings us to the Indiana religious freedom law. The bill passed in Indiana is a slightly modified version of the federal Religious Freedom Restoration Act that was passed under President Clinton in 1993. The Indiana law requires that courts use a balancing test when deciding religious freedom cases. Individuals and corporations must prove that their religious liberty is being substantially burdened and the government has to prove that its actions represent the least means to achieve a “compelling state interest.”
Previously in Indiana, Amish horse drawn carts could be pulled over and ticketed for breaking local traffic regulations, churches could be prohibited from helping homeless people because of sanitation laws and a Christian college lost state grants because it hires on the basis of religion.
Critics of the law argue that this law is not about protecting these people. They argue that instead what has happened is that Indiana has given faceless entities the legal ability to discriminate against LGBT groups. Religious freedom acts have been passed in nineteen other states over two decades before Indiana and in every single one of them the courts have continuously held that protecting LGBT groups from discrimination is a “compelling state interest.”
There has not been a single case in these states where a court has used it to justify a religious exemption from anti-discrimination laws. This law reaffirms the rights that people have, whether they have formed into a group or are going it alone. What it very clearly does not do is legalize discrimination.