This is the question the Supreme Court will ask in a few months when it hears oral argument in two cases it agreed to consider today. Both cases involve a for-profit business—an arts-and-crafts store and a cabinet maker—whose owners are religiously opposed to certain forms of birth control. The Obamacare “contraceptive mandate,” the owners claim, unjustly requires that their companies provide free contraception to their employees or pay a fine of $100 per worker per day. For Conestoga Wood Specialties, the cabinet makers in Pennsylvania, that comes to about $100,000 in fines every day.
One impetus for these corporate religious liberty claims is Citizens United—the controversial decision three years ago holding that corporations are persons under the First Amendment and entitled to freedom of speech. Now the court will decide whether this personhood extends to matters of faith.
In a post at The Economist last month, I noted some difficulties one circuit court found with the idea of a business being a bona fide religious actor:
Corporations may have mission statements. They may advance political positions and, since Citizens United, may spend freely to advocate for particular candidates. Corporate entities can even be said to have a "conscience" in the sense of acting responsibly and with regard to moral principles. But, citing a previous ruling, the court said corporations "do not, separate and apart from the actions or belief systems of their individual owners or employees, exercise religion. They do not pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors."
Yet there is also a case to be made for corporate religious rights:
Few groups, religious or otherwise, take actions separate and apart from the intention and direction of their individual actors. And corporations do tithe, donate to religious charities and act in accordance with religious principles, say opponents of the mandate. In a case in Michigan the court noted how Thomas Monaghan, the plaintiff, incorporated his religious beliefs into the daily operations of his Domino’s Farms (DF) business by providing tenants with a Catholic chapel, a Catholic bookstore, a Catholic credit union, and food service providing Catholic menu options.
Whether the Court ultimately decides that corporate entities can exercise religious rights, it will face the question of how to balance this new constitutional liberty with the rights of employees to benefits provided under the Affordable Care Act:
The [Obama] administration implies that the promotion of public health, "unquestionably a compelling governmental interest", outweighs the corporation's free-exercise right (if it exists). It argues that increased access to contraceptive services leads to positive health outcomes for women and children. This is difficult to deny. The incorporators' religious beliefs do not, the administration writes, "trump the rights of the corporations’...full-time employees and their family members to receive the health coverage to which they are entitled by federal law." If Conestoga wins, what would prevent other corporations from demanding custom-tailored exemptions from federal laws? Could a business owned by Jehovah's Witness members refuse to purchase health plans that cover blood transfusions?
These questions open a thousand more: presumably, any law could impose burdens on corporations that some religion or another may find incompatible with its teachings. Does this mean that the Constitution carves out exemptions from the law whenever a business-owner's religious scruples are violated?
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