Political Animal


November 29, 2012 10:28 AM Do Corporations Pray?

By Ed Kilgore

The most significant bunch of legal challenges to Obamacare beginning to work their way through the courts involve claims that corporations—some for-profits, some non-profits, some distinctively religious enterprises, some entirely secular—enjoy religious exercise rights that are infringed upon by the contraception coverage mandate. When Mitt Romney touched off an extended controversy by insisting on the grater reality of the legal fiction that corporations are too people, he did not go so far as to suggest that the entities prayed.

Politico’s Kathryn Smith has a pretty thorough rundown on the lawsuits and their various prospects, but the bottom line is the kind of judicial mess that begs for High Court clarification. Still, a couple of judges have addressed the “corporate exercise of religion” question:

In a Nov. 19 ruling, Judge Joe Heaton of the U.S. District Court for the Western District of Oklahoma denied a preliminary injunction request from the Hobby Lobby chain of craft stores.
“General business 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,” he wrote. Hobby Lobby has appealed the injunction decision.

Similarly, another judge noted that the allegedly aggrieved business executives haven’t lost a bit of their own religious freedom:

Judge Carol E. Jackson of the Eastern District…said the contraception rule still allows plaintiff Frank O’Brien, who owns a company that mines and distributes refractory and ceramic materials, to practice religion, just not through his for-profit, secular business.
“Frank O’Brien is not prevented from keeping the Sabbath, from providing a religious upbringing for his children, or from participating in a religious ritual such as Communion,” Jackson wrote. “Instead, plaintiffs remain free to exercise their religion, by not using contraceptives and by discouraging employees from using contraceptives.”

Makes sense. But we are, however, living in a Golden Age of imagined religious persecution, in which the seasonal gestures of department stores are a grievous injury to the faithful, and the inability to make public policy consistent with religiously-based political views is deemed martyrdom. So it’s no surprise religious conservatives are seeking legal recognition of the spiritual autonomy of their businesses, at a significant cost to their employees.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.


  • K in VA on November 29, 2012 10:44 AM:

    If corporations are people, my friend, and can pray, then I guess it's safe to say they can also go to hell.

  • c u n d gulag on November 29, 2012 10:57 AM:

    GOP POV:
    Here's why it's important for Christian organizations not to be allowed to have their employees recieve contraceptives as part of their medical coverage:

    If the precedent is set where the blaspheming heathens can get contraceptives paid for, then the followers of the Aztec Gods will be able to get the stone knives paid for that they need for their human sacrifices to Quetzalcoatl!

    Or... Something like that... DEATH PANELS!!!

  • Josef K on November 29, 2012 11:02 AM:

    It strikes me that if the Roberts Court actually goes ahead and 'recognizes' a corporation's "religious freedom" here, it'll open the door for a host of other such "rights" for these legal abominations to use and abuse.

    Of course it works both ways. If corporations become recognized as "persons", it means they'll also be (at least theoretically) much easier to hold liable for injury and damage. Heck, they might even get sent to the proverbial electric chair for murder.

    Obviously this is so absurd as to be laughable, but then so was the prospect of the majority siding with the plaintiff in Bush v. Gore back in 2001. Lets hope one or more of the evil 5 decide to leave before this happens.

  • Barbara on November 29, 2012 11:31 AM:

    This is one reason why religious exemptions are almost always crafted only for organizations that are comprised exclusively of members of the religion.

    In a totally unrelated case that might not be totally on point, the Supreme Court recently adjudicated whether business entities have a right of "privacy" in the manner in which that term is used to protect information under FOIA -- separate and apart from the protection of "proprietary or trade secret information."


    In the Hobby Lobby case, my guess would be that its articles of incorporation say nothing about religion and that what is happening is that the majority owner wishes to impute his own religious convictions to the business he owns. But that just underscores the point: there are no religious convictions at issue other than those that are vicariously attached to the corporation by an actual living and breathing human.

    Thus, the default is no imputation of religious conviction to a corporation except in the special case of those entities that are truly a conglomeration of adherents to the same religion.

  • Barbara on November 29, 2012 11:45 AM:

    P.S., the owner's position in HobbyLobby is at odds with the reason that most businesses assume a corporate form -- to avoid being the alter ego of a person or set of persons. That is, most owners fight to the death to avoid being seen as one and the same with the companies they own or elese they could be liable for all manner of potential costs or damages that are otherwise the responsibility of the entity (and so don't result, for instance, in foreclosure on their house). An example: let's say HobbyLobby fails to pay the premiums for insurance and individuals who thought they were covered -- indeed, have a little book that states they are covered -- for expenses. You can bet your last dollar that the owner is not going to assume "personal" responsibilty for their unpaid expenses out of his own pocket. That's what corporate separateness means, and a corporation can't be one man's alter ego for some things and not others.

  • bigtuna on November 29, 2012 12:34 PM:

    Some decent logic amongst the judges. But where are they when the SCOTUS provided corporations the rights of free speech? Did anyone challenge the illogical notion that speech is denominated in dollars, and implicitly, stock value, etc., according to Scalia et al?

  • paul on November 29, 2012 12:48 PM:

    If corporations are people and thus have a religion, there's a huge pile of case law that says that religion must be compatible with single-minded allegiance to Mammon. And I believe there's some scripture involving Mammon.

  • JackD on November 29, 2012 1:12 PM:

    What continually gets overlooked in this argument is the religious freedom of the employees.

  • bubba on November 29, 2012 1:18 PM:

    Sort of in line with what Barbara says, these "entrepreneurs" have a choice. They can operate their businesses as sole proprietorships or partnerships, and then have a lot more say as to how their businesses will operate pursuant to their religious convictions. Or they can seek to insulate themselves from most of the risks and hazards of operating their businesses by obtaining state granted/sanctioned immunity through incorporating. Once they choose the latter, however, it comes with some costs, including the treatment of that corporate entity as separate in existence from its owners. They are free to choose. If they do not wish to suffer the "downside" of state granted/sanctioned immunity, then simply choose to operate your businesses yourself without the cover of state protection to the businesses' hazards and risks.

  • OKDem on November 29, 2012 1:25 PM:

    Some background.

    Hobby Lobby stores are roughly as secular as WalMart. They do close on Sunday. Their full time stating wage $13/hr, a darn sight better than WalMart. The corporation does have a subsidiary called Mardel that does cater pretty exclusively to religious items and home schooling.

    The CEO, David Green, bailed out Oral Roberts University when Richard Roberts ran it into the ground. Green now has the biggest say on the board of directors at ORU.

    So, the management of Hobby Lobby appears to be sincere in their beliefs and to actually act on them, better than some ostensive religious entities. But that does not make them a church or their business a religious entity.

    Try this thought experiment: could a Hobby Lobby manager perform a wedding?

  • exlibra on November 29, 2012 6:29 PM:

    Does a secular merger of two corporations have the same privileges and obligations as one blessed by a preacher?

  • JCtx on November 29, 2012 6:43 PM:

    The thing to remember is that the insurance is being bought and paid for by the employee not the employer, even if the employer is contributing (those contributions are considered to be employee compensation). The only thing the employer is contributing is an opportunity for the employee to purchase health insurance at a discount.

    It is the employee's money that is purchasing health insurance for the employee and the employer has no say over anything that the employee purchases. Plus, the whole fuss about free contraception is BS because the cost of the contraception is still being paid for by the employee's premiums.

  • Matt McIrvin on November 29, 2012 7:07 PM:

    Completely aside from the issue of corporations as persons, it's striking that the supposedly essential component of religious freedom being claimed here is the freedom to lord it over one's employees in various ways, controlling their behavior.

  • royalblue_tom on November 30, 2012 12:28 PM:

    If corporations are people, then they need a gender. Obviously, the current defense of marriage act would prevent the merger of two same sex corporations ...

    Also, any subsidiary that makes it 18 years becomes a separate legal entity that can't be told what to do by the parent company! Any subsidiary that is folded by a company before it makes it to 18 should be investigated like a child death. Any planned subsidiary where planning has taken more than three months must be created, and the board needs to be invasively ultrasounded.

    The ridiculous ramifications of treating corporations like people are too numerous to lampoon and should be wheeled out every time some idiot suggests it.