David Barton, an influential conservative activist who helped write the Republican Party’s 2012 platform, argues that the Bible opposes the minimum wage, unions and collective bargaining, estate taxes, capital gains taxes, and progressive taxation in general. Should a company whose owners share Barton’s views be allowed to ignore laws that protect workers by claiming that those laws violate the company’s religious beliefs?
That’s a questions being asked as the U.S. Supreme Court considers whether it will recognize for the first time ever that for-profit corporations can make religious freedom claims under federal law.
When an actual human being goes to court with a claim that the federal government is violating their freedom to practice their religion, judges consider several questions in applying the Religious Freedom Restoration Act: Does the law or policy in question place a substantial burden on the person’s religious exercise? If so, can it be justified because the law is advancing a compelling government interest and doing so in the least restrictive way?
That’s pretty straightforward, even if individual cases require tough judgment calls about what constitutes a substantial burden and a compelling government interest. But what happens when a for-profit corporation claims a law violates its exercise of religion? Can a business have a religious conscience?
That crucial question is being considered by the Supreme Court in two cases brought by for-profit corporations claiming their religious freedom is violated by a requirement that their insurance plans include comprehensive contraception coverage. In Sebelius v. Hobby Lobby Stores and Conestoga Specialties Corp. v. Sebelius, business owners say their companies should not be required to provide their employees with insurance that covers kinds of contraception that violate the business owners’ religious beliefs or what they say are the religious beliefs of the corporation itself.
Legal scholars have weighed in on both sides of the claim. While federal courts have never recognized a for-profit corporation’s right to make a religious exercise claim, they have also never explicitly ruled that there is no such right. In the cases now before the Supreme Court, two appeals courts disagreed with each other. The Tenth Circuit sided with Hobby Lobby but the Third Circuit said, “[W]e simply cannot understand how a for-profit secular corporation—apart from its owners—can exercise religion.”
If the Supreme Court sets a new precedent granting for-profit corporations a soul, so to speak, where will it end? Law professors Ira Lupu and Robert Tuttle warn that it would produce “a massive redistribution of legal leverage away from employees and to their employers.” And, they write, “If Hobby Lobby’s claims prevail…other employer claims under RFRA will be very difficult to deny. Some current cases involve objections to coverage of all pregnancy prevention services. In the future, others may involve protection of employees with respect to different medical services, collective bargaining, family leave, or invidious discrimination.”
The Becket Fund, the conservative legal group representing Hobby Lobby, dismisses concerns about opening the floodgates to all kinds of religious objections, saying it hasn’t happened under RFRA to date. But of course, no Court has yet invited the flood of objections by giving business owners the right to claim corporate exemptions for religious belief.
Justice Elena Kagan raised this concern during oral argument, asking Hobby Lobby’s lawyer Paul Clement about employers who might have religious objections to sex discrimination laws, minimum wage laws, and child labor or family leave laws. Clement said he doubted the “parade of horribles” would happen. But Justice Kagan replied that if the Court were to adopt his argument, “then you would see religious objectors come out of the woodwork with respect to all of these laws." Solicitor General Paul Verrilli noted that if the Court grants corporations a right to make free exercise claims, judges will have to grapple with potential harm to employees and other third parties.
But it’s not just employees who could be hurt by such a ruling – it could be companies themselves. David Gans, writing for Slate, made an interesting observation: corporate America is staying out of this case almost completely, which is surprising given its eagerness to use federal courts to promote corporate interests. Gans says that not a single Fortune 500 company filed a brief in the case. Neither did the Chamber of Commerce or the National Federation of Independent Business. The corporate voices that did weigh in — the U.S. Women’s Chamber of Commerce and the National Gay and Lesbian Chamber of Commerce — oppose Hobby Lobby’s claims because recognizing a corporate right to the free exercise of religion would “wreak havoc in corporate boardrooms.”
Gans cites a brief from a group of corporate law scholars “who argued that Hobby Lobby’s argument would eviscerate the fabric of corporate law” because ascribing a business owner’s religious views to the corporation would treat the owner and company as one and the same. “Such an unprincipled, idiosyncratic exception from corporate law fundamentals, the scholars argued, would breed confusion in the law, lead to costly litigation, and undermine critical aspects of corporate law designed to spur creativity and innovation.”
Mary Ann Glendon, a law professor who serves on Becket’s board, has argued that if we want businesses to behave responsibly, “they must be treated as having some moral agency.” The Supreme Court, she says, “should take the opportunity to confirm that businesses can and should have consciences.” It’s a nice thought. But given right-wing efforts to merge the Tea Party and Religious Right, and foster a growing belief that far-right economics and anti-government ideology are grounded in religious dogma, it seems highly unlikely that the consequence of giving conservative business leaders a powerful new tool for undermining government regulation would be more socially responsible corporate behavior.
Anti-gay activists are incensed that the Supreme Court declined to hear an appeal by a New Mexico photographer who violated the state’s anti-discrimination laws, and the American Decency Association is citing the case as proof that the United States has morphed into North Korea.
“Have we been transported to North Korea? Since when do we have to check our First Amendment freedoms at the door in order to live and work as a citizen of the United States?” the group asked, lamenting that the government is bent on “forcing Christians to closet their faith and bow before our nation’s golden idol giving glory, laud, and honor to all things homosexual.”
Each week it seems the courts and the culture delivers another blow in their attempt to take down biblical truth. Yesterday the U.S. Supreme Court announced their refusal to hear the appeal case of Elaine Huguenin, the New Mexico photographer who was found guilty and punished by the New Mexico Supreme Court for putting her faith into practice – politely declining a request to take pictures of a lesbian couple’s “commitment ceremony” due to her religious beliefs.
With the U.S. Supreme Court’s refusal to hear this case and weigh in on the constitutional issue of religious rights vs. “gay rights” the justices have, in essence, spoken by their silence. And the verdict is that “gay rights” wins and the First Amendment loses.
The appalling New Mexico ruling will stand. A ruling where one justice actually stated that Christian business owners are “now compelled by law to compromise the very religious beliefs that inspire their lives." The ruling by this court went on to state that such coercion is "the price of citizenship."
The “price of citizenship”?? Have we been transported to North Korea? Since when do we have to check our First Amendment freedoms at the door in order to live and work as a citizen of the United States? What happened to the land of the free where we have the free exercise of religion?
Yet that is exactly what the government is doing (with a complicit stamp of approval from the U.S. Supreme Court) – forcing Christians to closet their faith and bow before our nation’s golden idol giving glory, laud, and honor to all things homosexual.
This post originally appeared on the People For blog.
Chief Justice Roberts caps his opinion in McCutcheon v. FEC by waxing eloquently about the need to ensure that elected officials are responsive to the people. This and other cases have described campaign contributions as a way to promote such responsiveness. But considering that this case is about a non-constituent buying influence in elections across the country, the passage's repeated references to constituents seems strangely out of place:
For the past 40 years, our campaign finance jurisprudence has focused on the need to preserve authority for the Government to combat corruption, without at the same time compromising the political responsiveness at the heart of the democratic process, or allowing the Government to favor some participants in that process over others. As Edmund Burke explained in his famous speech to the electors of Bristol, a representative owes constituents the exercise of his "mature judgment," but judgment informed by "the strictest union, the closest correspondence, and the most unreserved communication with his constituents." Constituents have the right to support candidates who share their views and concerns. Representatives are not to follow constituent orders, but can be expected to be cognizant of and responsive to those concerns. Such responsiveness is key to the very concept of self-governance through elected officials. (emphasis added, internal citations removed)
Shaun McCutcheon – whose contributions are at issue in this case – told the Court that he wanted to make contributions of $1,776 to each of more than two dozen different congressional candidates (as well as to various party committees) during the 2012 election cycle. It seems unlikely that he could have been a constituent of more than two dozen different members of Congress.
Obviously, people have a First Amendment right to participate in congressional races outside of where they live. But a stirring paragraph about political responsiveness to constituents hardly seems appropriate in a case that is all about political responsiveness to non-constituents.
This post originally appeared on the People For blog.
The Supreme Court's McCutcheon opinion, released this morning, is another 5-4 body blow to our democracy. To justify striking down limits that cap aggregate campaign contributions during a single election cycle, the Roberts Court ignores the way the world really works and makes it far more difficult to justify much-needed protections against those who would purchase our elections and elected officials.
Americans are deeply concerned that control of our elections and our government is being usurped by a tiny sliver of extremely wealthy and powerful individuals (and the corporations they control). That is not the democracy that our Constitution established and protects. The enormous impact of money in politics can destroy a democracy, undermining its foundations by disconnecting elected officials from the people they are supposed to serve and eroding the trust of the people in their system of government.
But the Roberts Court today stressed that campaign contributions can be justified under the First Amendment only if they address "quid pro quo" corruption – i.e. bribery – despite contrary pre-Citizens United holdings with a broader and more realistic vision. A democratic system rotting at its core – a government of, by, and for the wealthy – is not corrupt in their eyes.
If a wealthy person gives millions of dollars to a party (distributed to the party's multiple candidates and PACs across the country), he clearly exercises enormous influence over the laws that get passed. What the voters want becomes far less relevant, because it's the billionaire whose money is vital to getting elected. A government where elected officials allow a few plutocrats to have enormous access and influence over their policies is not an indication of a healthy government of, by, and for the people.
As Justice Breyer write in his McCutcheon dissent:
Today a majority of the Court overrules this holding [Buckley's 1976 upholding of aggregate limits]. It is wrong to do so. Its conclusion rests upon its own, not a record-based, view of the facts. Its legal analysis is faulty: It misconstrues the nature of the competing constitutional interests at stake. It understates the importance of protecting the political integrity of our governmental institutions. It creates a loophole that will allow a single individual to contribute millions of dollars to a political party or to a candidate's campaign. Taken together with Citizens United v. Federal Election Comm'n, 558 U. S. 310 (2010), today's decision eviscerates our Nation's campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.
Americans are organizing around the country to restore our democracy in light of Citizens United and other dangerous court opinions. Today's McCutcheon opinion gives us another reason to rally.
Last year, People For the American Way Foundation released an analysis of McCutcheon within the context of the Supreme Court's past rulings on campaign finance.
Eagle Forum’s Virginia Armstrong, who leads the group’s Court Watch Project, writes in a “Court Watch briefing” today that the Supreme Court’s recent decisions on the Defense of Marriage Act and Proposition 8 have displaced the “Judeo-Christian/Constitutionalist worldview” in favor of “Humanism/Reconstructionism,” which she warns “wreaks havoc with the concepts of absolute truth and inherent logic of the Law.”
Armstrong writes that the gay rights cases have pushed America to the “breaking point” and into the “danger zone” that will undermine the rule of law.
Has America has bent over backwards too far in its spiritual, moral, and constitutional life so that we are in danger of “breaking”? This question is central to our current series of Court Watch Briefings. The question has been precipitated by America’s Culture War and echoes the anguished cry of the Father in the famous musical production, “Fiddler on the Roof,” who felt that revolutionary changes in his world were pushing him to the “breaking point.”
We are proving that America is indeed in the “danger zone” and is in dire need of a massive “straightening up process.” Nothing more clearly demonstrates this fact than the recent same-sex marriage decisions of the U.S. Supreme Court — Perry v. Hollingsworth and Windsor v. U.S.
The Humanist/Reconstructionist position on epistemology is fatally flawed at every turn, as revealed in the pro-homosexual court decisions in Hollingsworth v. Perry and Windsor v. U.S. We must remember that Perry/Windsor reflect far more than the specific issues and positions of the immediate parties to the cases. Rather, they afford us a panoramic view of the entire homosexual rights battle and should be viewed in that light.
The real conflict in Perry/Windsor and similar cases is that of the whole Culture War conflict — the War of Worldviews between Humanism/Reconstructionism and the Judeo-Christian/Constitutionalist worldview. What is at stake, as Harold Berman demonstrates in his analysis (to which we have been referring), is the “very collapse of our entire Western legal tradition.” The Perry/Windsor epistemology wreaks havoc with the concepts of absolute truth and inherent logic of the Law — key components of the Western legal tradition outlined by Professor Berman. And as Nancy Pearcey of Houston Baptist University’s Schaeffer Center so cogently states, “The clash between these two understandings of morality [the Judeo-Christian v. the Humanistic] will determine whether liberty is gained or lost in the 21st century. It is imperative to reassert the transcendent moral truths that undergird freedom in every society.”
In a radio bulletin yesterday about today’s Supreme Court hearing on Hobby Lobby’s challenge to Obamacare’s contraception mandate, Fox News commentator Todd Starnes said that the case really presents a choice between Obamacare and God: “Obamacare takes on the Almighty tomorrow at the Supreme Court.”
Starnes said that the contraception mandate will “force” Christians to pay for “life-terminating drugs” and will let “Obamacare trump religious liberty.”
However, as Tiffany Stanely of The Daily Beast notes, “the contraceptives in question” are “not being used to terminate established pregnancies.”
Leading Iowa religious right figures Bob Vander Plaats and Steve Deace got together on American Family Radio today to discuss potential 2016 Republican presidential candidates and how they can move them even further to the right, as they did in 2012.
Eventually, the discussion moved to Kentucky Sen. Rand Paul, who provoked conservative ire when he said that the Supreme Court’s decision striking down the Defense of Marriage Act was appropriate and would help avert “a culture war.”
Deace said that Justice Anthony Kennedy’s majority opinion in the case was actually “an anti-Christian polemic” that he would “expect to be reading…at Mother Jones.”
Vander Plaats agreed, saying that Kennedy had in fact provoked a “constitutional crisis” by “defying the law of nature and the law of nature’s God” and “going against the document that predates the Constitution.”