The Supreme Court is now hearing arguments that corporations can opt out of the Affordable Care Act’s requirement to cover employee contraception on the basis of their sincerely held religious beliefs. In addition to a Mennonite cabinet maker, the Hobby Lobby chain has brought suit against the government, arguing that the morning-after pill and IUDs constitute abortion in their understanding of Christianity. Federal law already prohibits anyone from making employers to pay for abortions. An appeals court already ruled in favor of Hobby Lobby, citing Citizens United v. FEC in its determination that corporations enjoy freedom of religion in the same way they get freedom of speech.
It was my New Year’s resolution not to think about Citizens United anymore, so as to prevent head explosion. But as much as the idea of money as corporate speech frustrates intuition, it’s a Kantian necessary truth compared to the idea of corporate religion.
Let us make a distinction, here, between corporations and the people who own them. No one is arguing that Hobby Lobby founder David Green isn’t properly Christian, or that he doesn’t get to exercise his “biblical principles” however he sees fit. I bet you could go to his house and catch him wearing two different kinds of cloth simultaneously or not burning the possessions of foreigners who worship other gods, but whatever.
He lives by biblical principle and the selection of which elements in the Bible he believes, and that’s his religion. That millions of other Americans profess the same religion but don’t think IUDs are baby murder is a vexing conundrum we have decided to accept. For the purposes of freedom, whatever you and at least a dozen other people say you believe counts as religion.
Historically, though, the personal exercise of religion has never been profitable. Excepting televangelists, who are basically entertainers anyway, no one has been able to make money by pretending to believe some religious thing. You could argue that phony conscientious objectors profit by professing Quakerism or whatever, but we have whole, tedious processes in place to keep that from working. In the broad strokes, the individual has no material incentive to fake religion.
That is not the case for corporations. The Hobby Lobby corporation might get slightly cheaper employee health coverage by exempting IUDs and morning-after pills from their group plan. I don’t think that’s Green’s motive, but Green isn’t Hobby Lobby. From a reductive standpoint—a Milton Friedman standpoint, if you will—the only thing that can motivate Hobby Lobby is money.
This argument has an analog in Citizens United. Back when the Supremes were ruling that corporations got free speech, no one claimed that Chevron addressed the American people in a disembodied, vaguely sibilant voice. The argument was that corporate speech manifested as money, specifically spending on political advertisement. What form, then, does corporate religion take?
If it also manifests as money, that it overlaps almost exactly with Hobby Lobby’s financial interest in not paying for its employees’ IUDs. Hobby Lobby’s sincerely held religious beliefs are indistinguishable from all corporations’ interest in making as much money as possible, and the introduction of corporate freedom of religion does nothing but introduce a readily exploitable loophole in federal law.
Justice Sotomayor introduced this possibility when she asked whether corporations might mount religious objections to the minimum wage or child labor laws. Former solicitor general Walter Dellinger warned the court of a similar problem when he filed a brief suggesting that corporations might religiously object to anti-discrimination laws protecting gays and lesbians. Here we stray from issues related to profit and loss, but the problem remains: exempting corporations from laws on the grounds of religious freedom might offer them exemption from any laws—because for a corporation, what meaning can religion have?
A corporation is not bound by conscience. Its parents do not raise it in a particular religion when it is young. It does not lose friends or support from its family when it changes religion. When it pays for employee contraception, it does not lie awake at night wondering if it has compromised its integrity. When it strides into the public square to falsely proclaim its belief in Christ, it does not worry that it is a liar.
A corporation does not suffer when its religious rights are trampled. In the same way that denying Chevron the right to spend millions on election-season advertising would not have silenced anyone’s voice, making Hobby Lobby pay for IUDs will not chafe anyone’s conscious. If David Green doesn’t like it, he may have to choose between his religion and being a multimillionaire.