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November 27, 2013 10:35 AM Sorting Out the Issues Raised by the Hobby Lobby Litigation

By Ed Kilgore

In understanding the “religious liberty” cases the Supreme Court took on yesterday (probably inviting oral arguments in March), it’s important to sort out three different issues: (1) whether the religious rights supposedly offended by government regulations like those creating the contraception coverage mandate arise from the First Amendment or from actions of Congress like the Religious Freedom Restoration Act; (2) whether corporations or the owners of “closely held” corporations have religious liberty interests; and (3) whether the coverage mandate and similar business regulations actually create a judicially protected burden on the free exercise of religion.

TNR’s Jeffrey Rosen does a good job of untangling the second and third issues:

The question of whether or not corporations have the same constitutional rights of religious liberty as individuals is legally significant, politically explosive, and has huge consequences for the future of the regulatory state. But even if the Court holds that corporations can’t challenge the mandate in their collective capacity but individual business owners can, the underlying question is whether the religious liberty of for-profit business owners is actually burdened by a federal requirement that they give their employees access to federal benefits on the same terms available to employees of any other business. If the Court says yes, and allows religiously motivated corporations to claim exemptions from otherwise neutral federal regulations, it could not only drive a stake into the heart of the regulatory state; it could also balkanize Americans based on their place of employment in ways that are hard to reconcile with the Founders’ vision that all employees and all citizens are equal in the eyes of the law.

A decision recognizing corporations as entities capable of religious expression could do as much as Citizens United to promote the “corporations are people, too” mindset. But creating a broad corporate “religious liberty” exemption from federal regulations could obviously invite coldly rational business folk to feign or exaggerate religious objections to obligations that are simply inconvenient or expensive. I’ve referred to this problem as one of confusing companies that supposedly “pray” with those who most definitely want to “prey.” But it’s not the subjective feelings of corporate execs that should matter most, but rather the broader question of how it’s possible to provide equal treatment of citizens under the law when some claim to be more equal than others.

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.

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