Can Corporations Have Religion?

Last week, the US Supreme Court heard oral arguments in an important pair of cases, namely Sebelius v. Hobby Lobby and Conestoga Wood v. Sebelius. Hobby Lobby and Conestoga are companies that want to be allowed to opt out, on religious grounds, of the U.S. Affordable Care Act’s requirement that employer health plans pay for contraception. The First Amendment to the U.S. Constitution, after all, forbids the government from passing laws that restrict the free exercise of religion, and the practice of some religions includes refusal to engage in (or, apparently, to promote) the use of certain forms of birth control.

(Set aside for now the apparent hypocrisy implied by the fact that Hobby Lobby apparently invests some of its 401(k) employee retirement plan’s money in the pharmaceutical companies that produce the very contraceptives that Hobby Lobby is so hell-bent on avoiding paying for.)

The cases before the Court seem to hinge on the question of whether corporations can have religious beliefs. For some, the answer is obvious. The corporation, they say, is “merely an inanimate vessel,” and as such it cannot have beliefs or exercise a religion. But as Kiel Brennan-Marquez rightly points out, it is of course possible for corporations to be religious, because we have an entire category of religious corporations called churches, whose entire raison d’être is religious and who are given special treatment on that basis. The question, then, is really whether for-profit corporations like Hobby Lobby should enjoy the same protections that non-profit corporations like the Catholic Church enjoy. The key difference, for Brennan-Marquez, is that a church — as a non-profit — cannot be owned. Because a corporation can be owned, and because its assets are therefore transferrable, attributing a religion to a corporation would raise thorny questions in cases of corporate acquisitions, mergers, and so on.

More to the point, perhaps, is the question of instrumentality. As I argue in a forthcoming paper in the Georgetown Law Journal, there are cases in which we should think not in terms of the rights the corporation should enjoy, but in terms of the appropriate limits to be placed on the corporation, understood as a tool for achieving human objectives.

Now, there are cases in which it may be genuinely useful to think in terms of the corporation itself as having rights. The interests of corporations are not always directly reducible to the sum of the interests of its various stakeholders. But in other cases, it is more illuminating to think of which legal protections are necessary to protect the rights of persons who make use of the corporation as a way to carry out their own objectives. In such cases, the legal protections that the corporation should have are just those necessary to protect the human beings involved.

So, consider the difference here between a church and a for-profit corporation. A church just is an instrument for engaging in the exercise of religion. People form churches in order to express their religious beliefs and carry out their religious commitments; failure to allow religious freedom to a church is a failure to allow religious freedom to the people who make it up. A corporation, on the other hand, is many things to many people &mash; an investment, an employer, a supplier, and so on. And it will only be in rare cases that the exercise of a single religion is a fundamental goal of a sufficiently broad range stakeholders to justify attributing freedom of religion to the corporation as a whole.

Thinking of the question this way lets us avoid thorny metaphysical questions about what sorts of things can “have” religion. If we think of the corporation (for-profit or otherwise) as an instrument or technology by means of which people seek to achieve their goals, then it becomes clear that the rights (or “rights”) of different kinds of corporate persons depend not on what kind of entity they are, but on the the demonstrable goals of the human beings involved.

9 comments so far

  1. Curt Day on

    Before using a non-profit corporation, like a church, as something comparable to a for-profit corporation, such as a business like Hobby Lobby, should the key differences be addressed to see if such a comparison is valid? For whereas a non-profit corporation, like a church, acts as a private club to first serve the interests of those who meet membership requirements, businesses like Hobby Lobby is open to the general public where there are no membership requirements. Businesses like Hobby Lobby can indirectly restrict its customer base by being selective in terms of the products it sells, it cannot refuse protected groups access to goods and services needed by the public. That is because access to such goods and services is only through the private sector in a Capitalist economy. In this sense, a corporation cannot be deemed as having a religion or using religion as a reason for denying access to such goods and services.

    On the other hand, it is understandable for those owning a business to have the freedom to say, “I cannot in good conscience provide any support for abortion services to my employees.” A similar question to that was something my colleagues and I debated when I was a social worker. That question was whether I, as a Christian Social Worker, was required to list abortion as an alternative to a client or partner who had an unwanted pregnancy.

    In addition, I think that the healthcare law was not written with enough precision since there are non-birth control uses for birth control medicines and, to my knowledge, there is no such distinction made in the law.

    • Chris MacDonald on

      I think we all agree that churches and corporations are similar in some ways, and different in some ways. So there’s no need to debate whether the comparison is valid.

      The question (as I’ve framed it) is whether attributing something akin to freedom of religion to a corporation is necessary in order to enable the sorts of uses (of corporations as instruments) that we want to enable.

      As for the law itself: well, that’s beyond the scope of my blog posting, but let’s just say that this is not a dilemma that we face up here in Canada (or in the UK, or in France, or….)

      • 昭儒周 on

        There is a more difficult case and that would be if Hobby Lobby were, say, operating a Christian bookstore or were a Sharia-compliant bank. In such cases, for-profit enterprises only exist as a direct result of their underlying religion. SInce religion or the servicing of a religious interest) is not the prime focus of the corporation (as opposed to a Christian bookstore or a Sharia-compliant bank), I would argue that the corporation does not have religion in the sense that it has a vested interest in it, although certainly individual members of the corporation might. On the other hand, the closer the for-profit enterprise has as its raison d’etre the serving of a particular religion (for example, a halal restaurant or a kosher food business), it certainly should be considered to have religious freedom in that same tradition. Is it this construct to which you are referring?

  2. Curt Day on

    The need to debate the differences between Church and business corporation depends on the use of the comparison. So it might be necessary to debate. This is especially true since your second paragraph seems to make the role of comparisons to be nothing more than tools with which to win arguments.

    Personally, I am divided on the Hobby Lobby case.

  3. Marvin Edwards on

    Let’s solve the hard case first. A church has the authority to expel (or “excommunicate”) anyone from its congregation. That is the LIMIT of its power to enforce its own rules upon its members. And a church has no power at all to enforce its rules upon non-members.

    If we gave any church the ability to enforce its rules upon others, for example health insurance companies, then that would be the opposite of religious liberty. That would be authorizing the church to compel non-members to comply with its beliefs.

    There is no church that I know of that has a moral objection to health insurance per se. Therefore they cannot claim conscientious objection to providing insurance to their employees, who may or may not be members of the church.

    The feeling that they are paying for someone else’s contraception is not supported by the facts. The best that they can hope for is that all of their employees abide by church rules and do not purchase contraceptives. Their influence upon their employees is limited to expulsion from the congregation. Any attempt to punish them in other ways, such as controlling what they do at the drug store, would be inappropriate. And any attempt to control what non-members purchase at the drug store would be imposing their religious restrictions upon the rest of the community. In the name of religious liberty, that cannot be allowed.

    And if they are going to self-insure, then they will also need to run their own chain of drug stores. If they shop for shampoo at a drug store that also provides contraceptives, how do they avoid the profits from shampoo being spent to purchase wholesale contraceptives for sale? The money is merged in the drug store the same way it is mixed in health insurance.

    No one has asked them to pick up a woman, drive her to the drug store, and purchase contraceptives for her. They’ve only been required to provide health insurance for their employees.

    • 昭儒周 on

      There is a problem with your analogy. Self-insurance does not and has never required the employer that self-insures to own the drug stores. Instead, they are required to reimburse the employee for legitimate expenditures or else pay directly on the employee’s behalf for those expenses. If Hobby Lobby pays directly for these expenses or reimburses the employee then they are paying for the contraceptives, not merely health insurance. A better sequestering method is for Hobby Lobby to contract with a third party insurance company to provide health insurance with the provision that the employees of Hobby Lobby must pay an out-of-pocket premium that is at least equal to the cost of contraceptives paid out by the insurance company. In that way, everyone can legitimately argue that Hobby Lobby is not paying for contraceptives — its employees are. Since the cost of contraceptives is so low, I would think that a premium of around $40 per month per employee could more than cover the cost of any and all contraceptives and thus Hobby Lobby will no longer have a reason to argue that it is in any way paying for them directly (as already noted, they cannot argue that they are indirectly paying for them via their employee salary since once it goes into the employee’s pocket, Hobby Lobby has no claim on that money).

      • Marvin Edwards on

        My point is that to be “pure”, the Catholic Church would need to do more than set up its own insurance company, like Christian Brothers Trust, it would also have to establish its own drug stores. Otherwise the profits of selling shampoo may support the selling of contraceptives. Any religion that wishes to be assured that not one dime eventually supports something that offends them would essentially need to establish its own state.

        On the other hand, if we are to have a united state in which people are freely allowed to follow diverse religious beliefs, then there must be a separation between religious and secular issues. And that implies that those of one faith may not impose their religious beliefs upon those of another faith.

        This means every church must be limited in what it can do to enforce it’s practices upon others — even upon its own congregants. For it must always be an individual right to disagree with one’s church on this matter or that. And if the church finds that disagreement intolerable, then it may excommunicate that member. But beyond that, it may have no further say in the matter.

        Health insurance is not the business of any church, just like selling books for profit is not the business of any church. A “Christian” bookstore may be operated by Jews, Muslims, or atheists. Secular laws that affect these businesses, like collecting a sales tax when you sell a book, cannot be escaped by “taking offense”.

        The fact that the bookstore owner has religiously held beliefs against collecting taxes that fund any number of things that may offend him cannot be allowed to invalidate the state’s right to collect the tax.

        The fact that a health insurance company is owned and operated by a church cannot be allowed to override the state’s interest in providing its citizens a minimum standard of insurance coverage.

  4. […] Business ethicist Chris MacDonald reflects on the Hobby Lobby case and asks whether corporations can have religious goals. […]

  5. Keegan Martin on

    Should a business be able to be seen as a religious organization, a question I’ve never really sat down and thought about. I’ve always know that Chick-fil-a bad Hobby Lobby practice traditional Christian standards, closed on Sunday’s, and their opinions regarding controversial topics. This blog brings up a great point, just because they have Christian beliefs in their business, should they enjoy the benefits that the non-profit churches do? I think absolutely not, these businesses are making money, and should be held to the same rules and standards of every other for profit business. In the book Ethics in Human Communications, the author mentions “The true lover, the ethical Christian persuader, is both loving and just. Such persuaders care more about the welfare of others than about their own…” (Pg.84) I think this quote sums up how businesses who say they practice Christian Ethics and standards should act. They should lead by example and not attempt to get out of rules/regulations just because it might not work for them.

    Johannesen, R. L. (1983). Ethics in human communication (6th ed.). Prospect Heights, Ill.: Waveland Press.


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