Establishment vs. Free Exercise: How the Hobby Lobby Lawsuit Helps Us Understand the Freedom of Religion

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By Christa Lasher…The Patient Protection and Affordable Care Act is just weeks away from being in full swing.  Part of that act is the contraceptive mandate which requires for-profit companies with more than fifty employees to provide health insurance plans which cover contraceptive care.  Non-profits and religious organizations have been granted a grace period or an all-out exemption to this mandate, and now for-profit companies, like Hobby Lobby Stores, Inc. most famously or infamously as the case may be, want in on the action. Since corporations do count as “persons,” they claim also to have First Amendment rights, specifically in regards to religion. More specifically, the argument runs thusly: the Religious Freedom Restoration Act and therefore the Free Exercise Clause apply to corporations because the term person “includes corporations unless the context indicates otherwise,” according to the ruling in Hobby Lobby v Sebelius.  In other words, because the RFRA does not specifically define “person,” the court must determine its meaning elsewhere. That elsewhere is the Dictionary Act, which does define “person” to include corporations.  So, the argument goes, corporations are protected by RFRA. Of course, the infamous Citizens United case is not to be ignored either, which granted corporations legal personhood in the case of free speech.

Still, as Micah Swartzman and Nelson Tebbe point out in “Obamacare and Religion and Arguing off the Wall,” Citizens United was concerned with free speech, not personhood specifically, and that the decision was based more largely on the rights of the listening public.  Thus, the freedom of religion has no such analogue as the public who listens to free speech. More, Hobby Lobby Stores, Inc. is not the only for-profit company suing for exemptions, and these cases help us to understand the interplay of the Free Exercise and the Establishment Clause.  The Free Exercise is primarily concerned with the individual’s right to believe and practice their religion as they see fit, while the Establishment Clause is primarily concerned with ensuring that there no state mandated religion is established.  These two clauses can work in tandem to expand individual rights; they can also act as a form of checks and balances with one another. The Establishment Clause forbids positive infringements – paying to a church through taxation or praying before an official function – whereas the Free Exercise Clause forbids negative infringements – forbidding particular religious clothing or forbidding individual prayer in public places. The two together keep the state from meddling in the matters of the church. As Swartzma and Tebbe point out directly, and Brian Leiter points out obliquely in opinion piece “The rule of law applies to all, even religious believers,” one clause can keep the other clause in check as well.

            Imagine, for a moment, that the Establishment Clause had been so strictly enforced that it was actually impinging on the free exercise of religion. Let us suppose for a moment, as Justice Black suggested in Everson v Board of Education might happen, that no public funds flowed to any religious organization either directly through payments or indirectly through services.  We would require churches and religious schools to have their own fire department, police department, and emergency medical services. The church would have to figure out how to get water and sewage services. The requirements would actually be so onerous as to forbid the free exercise of religion for the members of that church.  This is the line of thinking that decided Everson. The Free Exercise Clause was a check on the Establishment Clause. Now, let us suppose that the reverse happened, that the Free Exercise Clause was interpreted so loosely as to create a sort of establishment.  This is what we begin to see happening in the case of Hobby Lobby.  People – and the corporations that they run – are allowed not to comply with a law that they do not agree with. But, by being allowed to ignore the law, David Green is effectively forcing his employees to practice as he does, namely, avoiding the types of contraception that he finds abhorrent. That is the material point. SCOTUS has already determined that the Establishment Clause forbids individuals from forcing others to conform their behavior, in Estate of Thornton v Caldor, Inc. So, we have the Establishment Clause as a check on the Free Exercise Clause.

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