Nov 26, 2012

The courts' disagreement over corporations having religion

Can corporations practice religion? The courts disagree.

In two different federal courts, in two different cases where for-profit companies with evangelical owners are suing the government over the Obama administration's mandate that health insurance include contraception coverage, two very different conclusions were reached. 

In Washington D.C., a federal court granted the Christian publisher Tyndale House an injunction last week, exempting the company from the daily fines it would accrue starting in January for not following the new health care law. The granted injunction is a ruling that the company has a good case, and should be treated -- at least until the final outcome -- as if it has won. Three days later, however, in Oklahoma, a federal court did not grant the arts and crafts store Hobby Lobby an injunction. The two cases are almost identical, yet the courts ruled in opposite ways. 

Pretty much, too, they ruled opposite ways because of what seems to me to be the core question, which is whether or not corporations can have or exercise religion in the sense indicated by the First Amendment. 

In the first case, Judge Reggie Walton, an appointee of the second President Bush, ruled that "the beliefs of Tyndale and its owners are indistinguishable."

In the second case, Judge Joe Heaton, also a George W. Bush appointee, ruled that corporate exercise of religion is "largely uncharted waters," and said Hobby Lobby's lawyers hadn't cited any legal precedent for the idea "that secular, for-profit corporations such as Hobby Lobby [...] have a constitutional right to the free exercise of religion," despite the fact there's no legal question about the owner's religious beliefs.

One might conclude that Walton and Heaton have a fairly straightforward disagreement about what the case law says, but the difference seems more subtle than that.

Heaton, as I read his ruling, says there's no evidence that for-profit corporations can practice religion. Walton actually agrees, though, despite ruling differently.

Walton writes in his ruling that he "declines to address the unresolved question of whether for-profit corporations can exercise religion within the meaning of [...] the Free Exercise Clause," and cites three cases where the question was left unresolved, First Nat'l Bank v. Bellotti in 1978; Church of Scientology of Cal. v. Cazares in 1981; and Stormans, Inc. v. Selecky in 2009. What he does then, though, is where the difference lies. Walton, in the first move, grants that corporations maybe can't have religion in any meaningful sense and then, in a second move says, that this particular for-profit company "Tyndale has standing to assert the free exercise rights of its owners."

The corporation can act as a kind of carrier of religion or religious practice, while not itself having or exercising said religion.

Walton ruled:
"Tyndale is a closely-held corporation owned by four entities united by their Christian faith, each of which plays a distinct role in achieving shared, religious objectives. Christian principles, prayer, and activities are pervasive at Tyndale, and the company’s ownership structure is designed to ensure that it never strays from its faith-oriented mission. The Court has no reason to doubt, moreover, that Tyndale's religious objection to providing insurance coverage for certain contraceptives reflects the beliefs of Tyndale's owners. Nor is there any dispute that Tyndale's primary owner, the Foundation, can 'exercise religion' in its own right, given that it is a non-profit religious organization."
This is either a really smart solution to the technicality of the problem, or a rather crazy begging of the question that only re-instantiates all the confusions it's supposed to clear up.

It remains to be seen.