This month the Supreme Court will again take up the question of whether or not corporations are people too. The Court has already ruled that Citizens United was not guilty of electioneering, as widely seen, but simply exercising the free speech guaranteed to all citizens, just a bigger, louder, wealthier, ubiquitous version of you or me. So, are corporations also entitled to same, or even greater, religious freedom than individual citizens? That’s the question before the court in three cases to be argued this month.
The first is the New Mexico case that caused a firestorm in neighboring Arizona. After the New Mexico Supreme ruled that Elane Photography violated the state’s Equal Access law with it’s “traditional weddings only” policy, Arizona attempted to preempt similar cases by expanding the scope of the Religious Freedom Restoration Act.
RFRA is the federal law that includes “religiously neutral” laws among those that may infringe upon the free exercise of one’s religion. Previously, only laws directed at imposing or curbing religious practice were considered under the Free Exercise Clause. Based on federal law, Arizona’s bill proposed two significant changes. First, it secured the right to deny services where RFRA had only legitimized the right to be heard in court. Secondly, Arizona attempted to extend the definition of “person” to include businesses.
Despite the highly publicized veto by Arizona’s conservative governor, expanding RFRA remains a cornerstone of current conservative policy dealing with marriage equality, the Affordable Care Act and birth control access. The Heritage Foundation’s Jennifer Marshall passionately argues that these changes are merely clarifications of a reasonable interpretation. In fact she seems downright flummoxed that anyone thought it was such a big deal writing that “the Arizona law simply would have explicitly clarified that ‘person’ in the law includes groups of persons—in other words, churches, associations, and businesses.”
Except, of course, the term “person” has never included businesses. Even in cases where religious exemptions are extended to organizations, those organizations have always been churches or church sponsored non-profit services. The government has never treated secular, for-profit business the same way it treats churches. The rhetorical strategy of simply linking the terms together every time you say them, churches-and-businesses, comes off as a sophomoric attempt at revisionism. It’s not the kind philosophical argument one might have expected from The Heritage Foundation.
Nevertheless, this notion is at the heart of the other two religious freedom cases before The Court. Hobby Lobby and Conestoga Wood Specialties will each argue that the religious convictions of their owners entitles them to equal status with churches and non-profit organizations, namely, the Affordable Care Act’s exemption on birth control coverage.
The Obama administration argues that the exemptions, written into the law, do not apply to secular for-profit organizations. However, unfair or un-Christian this position is, it is based on precedent. It’s nothing personal, just the closest we have to an objective standard: if a business seeks the privileges of a religious institution, it must show that it functions like one.
What’s striking is just how emotional the response has been, not from tea party extremists, but from the conservative establishment. Rather than acting on precedent, the administration is imposing a sexual revolution upon us (The American Conservative) codifying “complacency in the destruction of human life” (The National Review) and “wielding their sweeping new powers to assault freedom of religion in the name of their preferred social order” (The Weekly Standard).
In a world where religious, ethnic and tribal passions are so publically irreconcilable, it’s surprising–even disappointing–that the right relies entirely on righteous emotionalism when addressing important social policy. It reflects just how desperate they’ve become.