Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.


Employers Aren’t Generic: Hobby Lobby and Institutional Religious Freedom


Stanley Carlson-Thies

07-14-2014


By Stanley Carlson-Thies

July 14, 2014

The Supreme Court ruled recently in favor of two Christian-owned companies, Hobby Lobby and Conestoga Woods, that object to including some contraceptive drugs and devices in their employee health plans. Churches have been exempt from the 2010 contraceptives mandate that has generated so much controversy, and after widespread protest, religious nonprofits such as colleges and hospitals were offered an “accommodation” in which the insurer provides the organization with a health plan that excludes the objectionable contraceptives; those particular contraceptives are then paid for by the insurer.

The Court’s ruling and the content of its concurring and dissenting opinions raise again the complicated question of the religious freedom of institutions—a much more complex matter than the already difficult issue of honoring the religious freedom of individuals in our diverse society.

In her dissent to the Hobby Lobby majority opinion, Justice Ginsburg made some broad observations about the roles and functions of religious organizations. “Religious organizations,” she writes, “exist to foster the interests of persons subscribing to the same religious faith.”  And again, “religious organizations exist to serve a community of believers.” This characterization is fundamentally wrong when it comes to most faith-based service organizations. With a few exceptions,  e.g., a religious school intended only for children of one faith, faith-based service organizations exist precisely to serve everyone needing their services—but this service to all is animated by the particular angle of that faith. 

Religion is not only a matter of beliefs and rituals that are shared by a group, it also motivates service to the broader community in a distinctive way. That service is shaped by beliefs that are not only about God, but also about human rights and human flourishing. 

Recall the firestorm ignited by the original exemption the Administration created when it recognized that it should not try to force “religious employers” to bend to the contraceptives mandate. In order for an organization to be counted as a religious employer, it had to restrict its services primarily to people who share its faith. But even Jesus (we might say, especially Jesus) wouldn’t meet this test, as Sister Mary Ann Walsh of the US Conference of Catholic Bishops observed: he established that it is a religious duty to serve the needy without regard to their religion. 

Although companies aren’t churches or faith-based service organizations, they are established to pursue particular ends in particular ways. Some owners surely desire to set company policies in ways that reflect sincerely held religious beliefs, even though those companies do not exist to serve only a particular religious group. Do those religious beliefs merit protection from the government? Justice Alito’s majority opinion notes that it isn’t inconsistent or illegal for a company to pursue social-justice or religious aims while it seeks reasonable profit. Protecting a company’s religion-based policy decision about health coverage “protects the religious liberty of the humans who own and control those companies.”

But because companies are comprised of more than their owners and managers, but also of employees (who have their own rights and religiously grounded views about contraceptives), the Court’s decision is creating fear that narrow-minded owners will have theocratic power over their employees. While the Court said that for-profits are not excluded from protection of the exercise of religion, this does not give employers carte blanche to manufacture religious pretexts to save money on employee expenses, to prevent employees from obtaining products or services the owners object to, or to exclude the government from protecting employee rights. In this particular case, the government can protect the interests of female employees, without imposition on the religious freedom of the employers, by requiring the insurers to pay directly for the contraceptives, or by creating a program to directly supply or pay for the contraceptives itself.

The Court’s decision importantly affirms business as a realm where employers can make decisions based on religion, charitable impulses, humanitarianism, social justice, and other motivations, and not just maximization of profit. Bob Dylan reminded us long ago that life is not neutral when he sang “Well, it may be the devil or it may be the Lord/But you’re gonna have to serve somebody.” Indeed, in serving customers or patients, and in assembling and mobilizing a staff, companies and nonprofit organizations are serving “somebody,” some particular view of the good. Institutional religious freedom ought to protect those different ways, those uncommon ways of contributing to the common good. This is vital to protect religious exercise and conscience, and also because the broader community is not uniform but is morally and religiously diverse and can only be served well by a diverse set of organizations.

- Stanley Carlson-Thies is the president and founder of the Institutional Religious Freedom Alliance. He also serves as a Fellow of the Center for Public Justice.



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