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The Religious Freedoms of Corporations

2014-07-02

Here is an article from The American Prospect that argues against the religious freedoms of corporations:

http://prospect.org/article/secular-corporations-cannot-exercise-religion-my-friend

The problem with the recent Supreme Court decision in the case of Hobby Lobby is that a corporation is not a “person” and the law that the decision cites, the Religious Freedom Restoration Act of 1993 (RFRA), specifically refers the the religious freedoms of “persons”.  A group of people form a corporation in order to gain certain advantages in commerce– primarily the ability to isolate financial risks from the personal finances of the persons forming the corporation.  Under the law, if a corporation goes bankrupt, the creditors cannot go after the personal assets of the founders of the corporation.

The litigants in the Hobby Lobby case, however, wish to retain their personal religious freedoms as related to the control of the corporation’s behavior.  There is no precedent for this in law, as pointed out in the Prospect article.  The Supreme Court majority, in their opinion, have created such a precedent de novo, in the case of “closely held” corporations.  This majority has decided that a corporation, at least a closely held one, can be considered a person for the purposes of the RFRA.

To claim that the contraceptive clause places a “substantial burden” on the corporation’s free exercise of religion is disingenuous too.  In fact, Hobby Lobby supplied health insurance up to 2012 that did cover the contraceptives (most of them.)

The rights of the third parties (the employees affected) were ignored in the Supreme Court decision.  This is where the actual “substantial burden” lies.  If Hobby Lobby is free to not provide contraceptive insurance, then the employees will have to look elsewhere and probably pay substantial sums to obtain the necessary contraceptives.

The fact that the Court limited its decision specifically to contraceptive insurance is not helpful in this case.  The limitation brings to mind memories of previous decisions in which similar limitations were announced, specifically the decision in the case of Bush v. Gore in 2000.  The announcement of a limitation to precedent is an acknowledgment that the arguments in the case are specious and not sustainable.

The Hobby Lobby decision is a bad one because it shifts the “substantial burden” on the exercise of religious freedoms from a corporation to the employees of the corporation, that is from a non-person to a person.  Once again, it relieves the powerful of obligations and burdens the weak with additional demands on their limited resources.  The Court once again ignores the fact that the powerful have a surfeit of resources and the weak have, by definition, limited resources.

Surely the function of government is to protect the weak and enforce the obligations of the powerful, not to further burden the weak and relieve the powerful.

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