Religious Accommodation and the Establishment Clause

By Mike Appleton, Weekend Contributor

“First, we hold as a matter of statutory interpretation that Congress did not exclude for-profit corporations from RFRA’s protection. Such corporations can be ‘persons’ exercising religion for purposes of the statute. Second, as a matter of constitutional law, Free Exercise rights may extend to some for-profit organizations.”

 -Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1129 (10th Cir. 2013)

“Our conclusion that a for-profit, secular corporation cannot assert a claim under the Free Exercise Clause necessitates the conclusion that a for-profit, secular corporation cannot engage in the exercise of religion. Since Conestoga cannot exercise religion, it cannot assert a RFRA claim. We thus need not decide whether such a corporation is a ‘person’ under RFRA.”

-Conestoga Wood Specialties Corporation v. Sebelius, 724 F.3d 377, 388 (3d Cir. 2013)

David and Barbara Green and their family own and operate Hobby Lobby stores, an arts and crafts chain employing some 13,000 people at over 500 locations. As committed Southern Baptists, Mr. and Mrs. Green believe that the contraception mandate under the Affordable Care Act requires their company to provide its employees health insurance coverage for abortafacients, a violation of the Greens’ religious beliefs. Conestoga Wood Specialties manufactures wood cabinets and has 950 employees. It is wholly owned by the Hahn family, all of whom are members of the Mennonite religion. They share the Greens’ opposition to the ACA mandate for the same reasons.

The Greens and the Hahns now await a decision by the Supreme Court on their claims that corporations for profit, at least those that are closely held, should be regarded as persons entitled to the protections of the Religious Freedom Restoration Act. The Tenth Circuit supports their argument; the Third Circuit does not. The Supreme Court has never addressed the question. In my view, however, it is the wrong question.

The appeal has generated 84 amicus briefs, the majority of which support the Hobby Lobby/Conestoga position. Highly respected legal experts have lined up on both sides, reflecting the broad divergence of opinion on the meaning and scope of the Free Exercise Clause. But while many of the briefs are quite interesting and scholarly, none of them address what I believe to be the central issue, whether the owners of a commercial enterprise should be permitted to invoke their religious beliefs as a basis for shifting the costs of compliance with obligations imposed by a statute of general application upon thousands of individuals who may or may not share those beliefs. At bottom, the case is not about Free Exercise; it is about resolving a conflict between Free Exercise and the Establishment Clause in a pluralistic society.

Whatever one may believe about the Affordable Care Act, it is the law of the land and has survived constitutional challenges. It represents a fundamental change in public policy, a decision to expand the availability of health care to millions of citizens. It is clearly one of the most significant pieces of legislation to emerge from Congress since the New Deal. The contraception mandate is an important part of the ACA, intended to provide preventive healthcare services for women, including FDA-approved contraception and counseling services, without cost sharing. It can hardly be argued that the government does not have a compelling interest in improving access to health care for millions of women.

It is also crucial to remember that the accommodation sought by Hobby Lobby/Conestoga is not constitutionally mandated. In Employment Division v. Smith, 494 U.S. 872 (1990), the Court abandoned the strict scrutiny test previously utilized in Free Exercise cases and held that neutral laws of general applicability are binding regardless of the burdens imposed on religious exercise. Indeed, the Religious Freedom Restoration Act was enacted in direct response to that decision. The effect of the RFRA was to restore the strict scrutiny standard. In other words, the Hobby Lobby/Conestoga litigants are claiming a right to a permissive accommodation under RFRA.

In my opinion, the position of the Greens and the Hahns is most closely analogous to that of the petitioner in United States v. Lee, 455 U.S. 252 (1982). In that case a member of the Old Order Amish religion employed several other Amish men to work on his farm and in his carpentry shop. He argued that forcing him to withhold and pay Social Security taxes on his employees violated tenets of his religion in violation of the Free Exercise Clause.  After reviewing the importance of mandatory participation in the Social Security system, the Court concluded that exempting Mr. Lee from its requirements would be unduly disruptive, adding “To maintain an organized society that guarantees religious freedom to a great variety of faiths requires that some religious practices yield to the common good.” It concluded, “When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer’s religious faith on the employees.” 455 U.S. at 261.

In the Lee case, the employer sought to deny his employees the benefits of the social security system based upon what he deemed in good faith to be the demands of his religion. In the case under consideration, the Greens and the Hahns seek to deny their employees important benefits under the ACA on similar grounds.

So how do the claims in Hobby Lobby/Conestoga implicate the Establishment Clause? In Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985), the Court held that a Connecticut state statute granting employees an absolute right not to work on whatever day of the week they observed as the Sabbath violated the Establishment Clause because it “imposes on employers and employees an absolute duty to conform their business practices to the particular religious practices of the employee by enforcing observance of the Sabbath the employee unilaterally designates.” 472 U.S. at 710. And in Texas Monthly, Inc. v. Bullock, 489 So.2d 1 (1989), the Court struck down a Texas statute that granted religious periodicals an exemption from the state sales tax, finding that it constituted “state sponsorship of religious belief” and “burdens nonbeneficiaries,” contrary to the Establishment Clause. 472 U.S at 15.

The essence of the claims of the Greens and the Hahns is that their religious beliefs should prevail over the religious beliefs (or unbelief) of their employees, thus permitting them to shift the financial burden of statutory employee benefits to their employees or to third parties. Regardless of whether freedom of religion is purely a personal right or one exercisable by a for-profit corporate entity, the Free Exercise Claims in this instance are on a collision course with the Establishment Clause. The Establishment Clause ought to prevail.


53 thoughts on “Religious Accommodation and the Establishment Clause”

  1. Good job Mike.

    Like many others here, I feel the SC will rule for HL. I hope to be wrong about that!

    The ultimate answer for women is universal, single payer health care, but this ruling is important because it will lead to the dismantling of right for many people, just as Justice Holmes lays out.

  2. As long as they don’t violate the Civil Rights Act, Hobby Lobby and Conestoga Wood could convert to a “sole proprietorship” tax status which would make the owners and their company the same person, instead of a corporation which make the owners a separate entity from their “corporate person” (which is two separate persons under the law).

    They could also convert to a “non-profit” corporation similar to a church.

  3. If Hobby Lobby wins it should permit individuals to sue the individuals who own corporations rather than struggling with the atomized liability of a corporate unit. Unfortunately we all know that SCOTUS will make sure that does not happen. On the other hand a win for HL will begin the unraveling of many equality laws and could also erode major legislation such as social security, unemployment that the like that apparently Christ would have objected to because they help feed people and we know how much he hated that! Theocracies are dangerous to humans. They cause wars and destruction and unnecessary torment not only for the coreligious but also for the “infidel” that is any one who disagrees with the currently ascendant religion.

    Religious exemptions are nothing more than privileges based on religious belief. I seem to remember than in the US that is not permitted but then that may be a US in a different dimension. No religious exemptions from generally applicable laws for anyone (human or corporation; profit or nonprofit) , period.

  4. Not to, uh, mix and mash metaphors, but wouldn’t a judgment favoring Hobby Lobby and Conestoga likely set off a tsunami of rainmaking over corporate obligations and religious rights ?

    1. Although Hobby Lobby and Conestoga made it to SCOTUS, there are some 40 other cases working their way up the pipeline. These are not the only 2 corporations who feel their religious rights have been trampled.

  5. Is Papantonio saying no for profit corporations have filed amicus briefs? I guess I should go look for a listing. Tomorrow.

  6. Ok, now I’m confused, why has Papantonio said no amicus briefs have been filed and Mike says 84 have been filed? How could Papantonio get this wrong?

  7. The video discussion @ 1:37 is much more in depth. It looks like the veil (of corporate protections) is in serious danger of being shredded. Papantonio points out that there have not been any Amicus briefs filed and that indicates other corporations are cognizant of the dangers of corporate protections being destroyed with the continuing “humanization” of corporations. Truly fascinating stuff.

  8. I’ve heard this argument several times now and it’s fascinating. If the SCOTUS decides in favor of Hobby Lobby, it would be a step closer to making corporations people, thereby tearing the veil, allowing people to sue not only the corporation, but the owners of the corporation. Could this be one of the unintended consequences that would influence the decision by the right leaning Justices? Mike Papantonio thinks it would be a great thing if the SCOTUS decides in favor of Hobby Lobby/ Conestoga for just this very reason.

  9. Didn’t we just have this discussion?

    Paul S.,

    You are correct. Many liberal and conservative news media have this decision going in favor of Hobby Lobby. However, I believe the Supremes will try making everyone happy (after all, corporations have most judges in their back pocket).

  10. The is a free radical to this equation or pending decision…that’s the fact that most of this suspect SCOTUS Majority are either members of associated with the Opus Dei Cult..

    Antonin Scalia, Chief Justice Roberts, Clarence Thomas are all fanatic Opus Dei Cult members. Justice Scalia’s son is an Opus Dei Cult Priest…Justice Kennedy has been reported to worship at an Opus Dei Cult Church, Sam Alito more than sympathetic to Opus Dei’s agenda not just religiously but their political agenda as well..

    Now The Opus Dei Cult is dead against all and any forms of birth control if you’ve listened closely to Rick Santorum you are hearing Opus Dei Cult he along with those such as Paul Ryan are also Opus Dei Cult fanatics..

    So no matter how versed you are in the Establishment Clause which is in itself rare, we must analyze this case from a non legal that is more than likely how this Court’s warped Majority will decide it as well..

    In fact commitment to a Cult such as Opus Dei should be more than reason enough to force these justices or at very least Scalia, Roberts and Thomas to recuse in this instance..

    Also their political preference to corporate power when combined to this bizarre religion cult within Catholicism combined leaves little room for case law or the Bill of Rights or legal precedent..

    It astounds me that in these religious cases the fact that most of our Court’s political majority are in fact cult members is never reported off limits only allows for yet another debacle disastrous decision such as Citizens United was and still is..

    Remember after his somewhat surprising decision on The ACA mandate Chief Justice Roberts flew off almost immediately to Malta..! Why Malta..? Malta is a stronghold of the Opus Die Cult in Europe and The Knights of Malta who also gave a Knighthood to Rick Santorum..!

    1. TJ – you want to back your claims up or just libel SCOTUS? At least link us to some ultra-liberal paranoid blog.

  11. I suspect the slippery slope of unintended consequences may play a big role in the final decision, at least I hope it would.

  12. I guess we have to wait until June to find out. What were the bets on the ACA being decided the way it was? I recall a lot of people being surprised and dismayed.

  13. Many sites are counting the votes at 6-2-1 against the government. The two are the two female justices who seemed to want Hobby Lobby and Conestoga to drop their insurance coverage, pay the fines and have their employees join the exchanges. Brilliant, just brilliant.

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