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. The Hobby Lobby Case And Our Diminishing First Amendment
    By Charles P. Pierce
    March 25, 2014

    The whole thing is a depressing reminder that almost the entire debate over the role of religion in our politics is conducted, in one way or the other, on the grounds of human sexuality. In this, alas, and especially in this case, because it involves a woman’s right to control her reproductive health and the role of birth control therein, the political brawl is a precise parallel to what happened among Roman Catholics in the aftermath of Paul VI’s dreadful Humanae Vitae encyclical in 1968. Suddenly, the whole question of papal authority, and the magisterium, and the deposit of faith, and almost the entirety of Catholic doctrine pivoted vitally on the question of birth control. The Church went mad over it, and it hasn’t recovered from it yet. In Bare Ruined Choirs, historian Garry Wills best summed up the situation in a way that resounded through the arguments raised in the Hallowed Chambers today.

    “Thus are the ‘keys to the Kingdom’ reduced to mere smithying of intellectual chastity belts.”

    And thus, today, in the Supreme Court, was the First Amendment to the Constitution reduced to exactly the same thing.

  2. Logically then raff and Annie….the next step is to get the corporation voter registration…. Now… Do the workers of that corporation only have 3/5th of a vote……

  3. So, if someone falls down on a slippery spot in Hobby Lobby, Mr. and Mrs. Green could be sued by lawyers who might want to prove that they are now indeed real persons.

  4. Does it matter if they are closely held? If they are corporations and because they now are also persons, they have allowed the veil of corporate protection to be pierced. As I understand it, the stockholders, CEO’s and owners could be sued as well as the corporation. Why get all the protection of a corporation, get to be a person and get none of the risk of being a person? I think some legal minds are saying beware of what you want, you may just get it.

  5. PS,
    The number of shareholders has no bearing on the issue. A corporation is a legal fiction and it cannot have a religious beliefs. Its owners can, but not the corporation. It also doesn’t matter if it is an old corporation or a new one. Totally irrelevant.

    1. rafflaw – my understanding is that both are closely held corporations. However, I think what you are trying to say is that corporations as persons is a legal fiction. Corporations are legal as hell. It is the personage of the corporation that could or could not have religious beliefs? And I think it is up to the SCOTUS to decide.

      The number of shareholders has a bearing because those corporations could no longer claim they were closely held.

  6. I am going to boycott corporations that have a political or religious “bent”. I drive by Chic Fillet, Hobby Lobby and such places and flip them the bird. People with unwanted babies should drop them off at night at the Hobby Lobby.

    1. So, that includes Microsoft, all film studios, Apple, Costco, Wendy’s. You are just going to die. 😉

  7. “What is the most important for democracy is not that great fortunes should not exist, but that great fortunes should not remain in the same hands. In that way there are rich men, but they do not form a class.”

    “Though it is very important for man as an individual that his religion should be true, that is not the case for society. Society has nothing to fear or hope from another life; what is most important for it is not that all citizens profess the true religion but that they should profess religion.”

    — Alexis de Tocqueville

  8. david,
    we are a nation of secular laws that respect all people. If you are in favor of Hobby Lobby and Conestoga, and any other corporate entity being able to opt out of the ACA, then you are in favor of a government based on religion or favoring religion because IBM can’t use that same exemption unless it claims that it is against their religious beliefs. Please tell me how a legal fiction like a corporation can have religious beliefs? And by the way, using the term secular is not the same as saying atheist.

    1. rafflaw – I would disagree that ‘secular laws’ respect all people. Currently, the DOJ is making the claim that mandatory sentencing laws discriminate. If a corporation (a person) is a legal fiction, one with a long history in American law, why can’t it have religious beliefs? IBM or HAL as it was known in 2001: A Space Odyssey has too many shareholders to make that claim. Google cannot make the claim, Microsoft cannot make the claim or Apple cannot make the claim. However, Apple could have made the claim when Steve and Bill were still working out of their garage and before they starting giving stock away. And right now, Hobby Lobby, Conestoga and 40 others are making that claim.

    2. rafflaw wrote: “we are a nation of secular laws that respect all people. If you are in favor of Hobby Lobby and Conestoga, and any other corporate entity being able to opt out of the ACA, then you are in favor of a government based on religion or favoring religion because IBM can’t use that same exemption unless it claims that it is against their religious beliefs.”

      This erroneous philosophy that “we are a nation of secular laws” is what has led us down this path of creating exceptions based upon religion. I don’t believe any law should make religious exceptions for anything. Laws should apply equally to everybody regardless of religion. The problem is that the secular agenda has created these exceptions for religion in order to pass bad laws. If the ACA did not already create all these religious exceptions, the law never would have passed in the first place. It was all the wrangling over exceptions and paying politicians in back room deals if they would vote for the ACA that caused it to pass.

      rafflaw wrote: “Please tell me how a legal fiction like a corporation can have religious beliefs?”

      Corporations are run by people who, in some cases, have religious beliefs. The corporation becomes an extension of the person who owns it. Hobby Lobby from the very beginning was established as a company that employed people and also put God first in everything they did. Why did Hobby Lobby want to put God first in their business? Because it was created and run by people who were religious. The way you talk you make it sound like religious people can’t be interested in employing people and making money for everyone in the company. Many companies are structured to have prayer at the start of the work day and Bible studies during lunch break. Such companies facilitate religion. Other companies are based upon secular principles and do not allow such things.

  9. It’s only a matter of time before Scalia declares Corporations are not just people but “Religions” unto themselves, and then perhaps eventually “God!”

  10. And now David, women are fleeing religious persecution. Many religious people support the separation of church and state. They are not atheists. They are one of those groups of religious people that our laws protect.

    David, a secular nation is nothing to fear. It protect religious freedom. Otherwise we go back to the state of one religion trying to reign supreme in the land, persecuting everyone who does not believe the way that religion teaches. If you don’t want to be forced to practice someone else’s religion then you need to support a state which does not favor any religion over another. No one must be religious in this nation. The moment you tell someone to be your religion you have forfeited your own rights to resist should some other religion come along and take over in its stead.

    1. Jill, you write as if “separation of church and state” = secularism. They are not the same.

      The concept of separation of church and state was founded by religious people. It was birthed by the bloody history of the Catholic inquisition against Protestants, by the Reformed Protestant Geneva experiment with theocracy, and by the bloody history of England with the Divine Right of Kings doctrine.

      Secularism use to refer to being without regard toward a particular religious creed, but in modern times it has come to mean more and more as rejecting religion entirely. There is a huge difference between a government which is friendly toward all religions and one that is antagonistic toward religion in general.

      I do not agree with a government based in religion, but I also do not agree with a government that would refuse to acknowledge God. Our founding documents acknowledge God, but in recent times, many lawyers and judges advocate moving away from these roots toward an atheistic state that they call a secular nation. Unfortunately, that word secular is a euphemism for government being atheistic. History teaches that atheistic governments become unfriendly towards theists.

      I think all should have pause before embracing the concept that our nation is a secular law nation. We are a nation of laws that respect both the secular and the sacred without exclusion toward either.

  11. Jill wrote: “This is a secular law nation.”

    Where in the Constitution does it say that? This country was founded to a great degree by people fleeing religious persecution. Our federal laws were established with the idea of accommodating a wide range of religious views, not with the idea of creating a secular nation, which is basically just a nice way of saying an atheist nation.

    1. When written the “Establishment Clause” affected only the federal government. At least one state had a state recognized religion. BTW, the Church of Secular Humanism has filed for a religious tax exemption. This is not a joke.

  12. Mike Appleton wrote: “It can hardly be argued that the government does not have a compelling interest in improving access to health care for millions of women.”

    I somewhat disagree. In a pluralistic society that does not agree upon health care issues, I would argue that the federal government has no business in this subject. Let people take care of these matters for themselves. If government sees a benefit to health care, let them establish their own clinics and health care as it sees fit. Let people choose to frequent those clinics or not frequent them. This has already happened throughout Florida long before Obamacare. Each county establishes clinics with subsidized health care. The ACA is nothing more than a carefully disguised insurance bailout system meant to steer society toward a higher degree of socialism. The ACA is by far the worst disaster of federal legislation that I have ever seen in my lifetime. It has caused enormous civil unrest and polarized the nation against one another because of the partisan way in which it was passed.

    1. I would posit that the government ‘may have an interest’ but not a compelling interest in improving access to women’s healthcare. If it had a compelling interest it would be part of the Constitution.

  13. Mike, I appreciate the very nice analysis that focuses us upon some legal cases concerning this subject. However, I have difficulty seeing the direct connection with “United States v. Lee.” In that case, the decision is basically that when one enters into commercial activity and employees people, he cannot opt out of becoming a tax collector for the government. In this case, there are specific objections regarding four out of twenty contraceptive devices that are reputed to kill the unborn. They simply want to provide healthcare that is truly healthcare for all involved. They want to establish health policies for their company that do not violate their pro-life conscience. They are not objecting to establishing health care policies, nor are they objecting to being tax collectors like the Lee case. Their objection is concerning a health care policy that promotes death and harm to individuals that the government has at this point of our knowledge chosen not to recognize.

  14. phillyt, I think you are absolute correct on what they will do. I wonder how a corporate person goes to church. That must be a miracle of close to loaves and fishes proportion!!!

    I see the SC as fully engaged in dismantling the rights of actual human beings in our society. This is a secular law nation. That should mean the floor of our rights is determined by secular law. Religions, like the States, could increase our rights, but they cannot take them away. Yet, the courts do rule that religious institutions may take away citizens, secular, legal rights. This is a real disaster.

    Religions harbor many, many ideas which justify all kinds of prejudice. Some white fundamentalist churches believe black people are the “mud” people of the Bible. While it is their right to believe something so stupid and hateful, does this mean they may bar “mud” people from employment?

    Fundamentalist churches, both black and white, believe it is sinful and evil to be any part of the LBGT community. While it is their right to believe something so stupid and hateful, may they then legally deny treatment for AIDS to members of that group?

    If you want to avoid secular law, evidently, the best way to do so is to incorporate as a religion. That’s where this is all headed.

  15. The owners of HL are Baptists. It’s the Conestoga owners who are Mennonite.

    I think it is a note of wishful thinking to imagine that the conservative justices won’t anticipate the “piercing of the corporate veil” and simply construct a ruling that says “yes” on the RFRA exception, and “no”, you still cannot sue the owners who are shielded by the corporation. Pretzel logic? Of course, but Scalia and Alito have no shame whatsoever, and Thomas and Roberts will go along. Remember Bush v. Gore?

  16. Excellent piece Mike…. I’ve been following this….. One things that I found interesting is is that Hobby Lobby is owned by the Mennonites….. I think I read that accurately….

  17. That should be “then it’s all good”, wouldn’t want Paul correcting my spelling.

    Justice Holmes, some claim a Christian Theocracy couldn’t be compared to a Islamic Theocracy, maybe so, but after reading ” A Christian Nation”, I wonder.

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