Bombast

An American court lobbed a bombshell into the culture wars today, by ruling that some United States corporations have religious rights. My first notice of the decision was an email alert from the New York Times:

“The Supreme Court has ruled on whether for-profit corporations may advance claims based on religious freedom. Our reporters are reading the decision and will update this article as soon as they feel confident about its basic meaning.“ (Emphasis is mine.)

The restraint in that simple message was, oddly, a relief.

Civility and sanity drown a bit more every day in maelstroms formed by instant explosive rage smashing into gloating triumph. They occur everywhere in the global 24/7 new cycle, but America’s culture wars are especially loud, vicious, and polarizing. Restraint such as by the Times —  of actually reading the decision, and refraining from analysis until “confident about its basic meaning” — helps defuse the bombast of instant analysis. Sage judgement matters as much in journalism as in politics, and I consider the Times one of the few journalism outfits worth a subscription price.

But the best antidote to the bombast, and a whole lot else, is thinking for oneself. The same Internet that fuels outrage also opens up a world of information. Nobody should take anyone’s word on today’s decision, whether they’re a Fox News commenter, an Al Jazeera reporter, a New York Times analyst, or the countless partisans, paid lobbyists, ideologues or religious leaders. The decision is published here, on the court web site, for those willing to sift through the legalese, glean the tension between every line, think, and maybe even ask: is this really how we want to run our world?

Here’s a brief summary of who, what, when and why — along with select excerpts of the ruling written by Justice Samuel A. Alito Jr., and the dissenting opinion by Justice Ruth Bader Ginsberg.  

BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL. v. HOBBY LOBBY STORES, INC., ET AL.

The court heard the case on March 25, and released its 5-4 split ruling on June 30. A majority of conservative judges overruled the liberal minority. 

The essence:

Citing their personal religious beliefs, owners of corporations who self-identify as Christians won their battle against government efforts to make companies pay for contraceptives as part of their employees’ health benefits — especially contraceptives that disrupt pregnancy, which the business owners consider tantamount to abortion. Religious organizations were already exempt from the requirement to pay. The court ruled: “Protecting the free-exercise rights of closely held corporations thus protects the religious liberty of the humans who own and control them.”

The cause:

The Religious Freedom Restoration Act of 1993 (RFRA) prohibits the “Government [from] substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability” unless the Government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” … As amended by the Religious Land Use and Institutionalized Persons Act of 2000 … RFRA covers “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”

The background: 

United States Department of Health and Human Services (HHS) regulations require employers group health plans to pay their employee costs for 20 contraceptive methods, wrote Alito, “including the four that may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus. Religious employers, such as churches, are exempt from this contraceptive mandate. HHS has also effectively exempted religious nonprofit organizations with religious objections to providing coverage for contraceptive services. Under this accommodation, the insurance issuer must exclude contraceptive coverage from the employer’s plan and provide plan participants with separate payments for contraceptive services without imposing any cost- sharing requirements on the employer, its insurance plan, or its employee beneficiaries.”

“In these cases, the owners of three closely-held for-profit corporations have sincere Christian beliefs that life begins at conception and that it would violate their religion to facilitate access to contraceptive drugs or devices that operate after that point. In separate actions, they sued HHS and other federal officials and agencies (collectively HHS) under RFRA and the Free Exercise Clause, seeking to enjoin application of the contraceptive mandate insofar as it requires them to provide health coverage for the four objectionable contraceptives.”

The cases came together in America’s top court after conflicting rulings by lower courts. One court previously ruled that “a for-profit corporation could not “engage in religious exercise” … and said the (insurance coverage) mandate was not an imposition on a corporation’s owners. Another court ruled that businesses are “persons” and the contraceptive mandate “substantially burdened (the company owners’) exercise of religion. It said no compelling interest had been made in favour of the insurance requirement or, alternatively, if there were a compelling governmental interest, the health department had failed to prove a “least restrictive means” of furthering it.

The majority ruling: 

Held: As applied to closely held corporations, the HHS regulations imposing the contraceptive mandate violate RFRA….

(a) RFRA applies to regulations that govern the activities of closely held for-profit corporations …

(1) HHS argues that the companies cannot sue because they are for-profit corporations, and that the owners cannot sue because the regulations apply only to the companies, but that would leave merchants with a difficult choice: give up the right to seek judicial protection of their religious liberty or forgo the benefits of operating as corporations. RFRA’s text shows that Congress designed the statute to provide very broad protection for religious liberty and did not intend to put merchants to such a choice. It employed the familiar legal fiction of including corporations within RFRA’s definition of “persons,” but the purpose of extending rights to corporations is to protect the rights of people associated with the corporation, including shareholders, officers, and employees. Protecting the free-exercise rights of closely held corporations thus protects the religious liberty of the humans who own and control them.

Justice Ruth Bader Ginsburg warned in her dissenting opinion of wide and unintended repercussions of the ruling, and noted  why religious exemptions to American laws have never before been extended to any entity operating in “the commercial, profit-making world:”

“The reason why is hardly obscure. Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community. Indeed, by law, no religion-based criterion can restrict the work force of for-profit corporations … (the U.S.) requires reasonable accommodation of an employee’s religious exercise, but such accommodation must not come “at the expense of other[ employees]”). The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court’s attention …

The Court’s determination that RFRA extends to for- profit corporations is bound to have untoward effects. Although the Court attempts to cabin its language to closely held corporations, its logic extends to corporations of any size, public or private … The Court does not even begin to explain how one might go about ascertaining the religious scruples of a corporation where shares are sold to the public. … claims will proliferate, for the Court’s expansive notion of corporate personhood — combined with its other errors in construing RFRA — invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith …

~~~

— Deborah Jones

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