The American Historical Association’s Perspectives on History asked me to write a short piece on the Hobby Lobby decision as part of a historians forum on the landmark Supreme Court case. The forum also includes short essays by Ruth Bloch, Naomi Lamoreaux, and Alonzo Hamby. My contribution is titled: “We hold these truths to be self-evident, that all corporations are created equal.” Here is a snippet.
But can a corporation have religious liberty? I obviously don’t know how Roger Williams, Isaac Backus, James Madison, or Thomas Jefferson—the great early American defenders of religious liberty—would have responded to Burwell v. Hobby Lobby, but there is little doubt that they would have considered such a proposal to be very strange. For these men, religious liberty was a very personal thing. Religious liberty was meant to protect deeply held spiritual convictions that found their home in the “soul” or “conscience.” Religious liberty was an inherently Protestant concept. It stemmed from the belief that people could read the Bible for themselves and draw their own religious conclusions. It has always been a religious idea applied to individual human beings. Can a for-profit cooperation have a soul? Can it truly practice liberty of conscience?
We might also ask, as political scientist Patrick Deneen has done so brilliantly, whether a big box store such as Hobby Lobby, located in a massive shopping center constructed on a slab of asphalt at the edge of town, can be considered a person. And if it is a person, can it exercise religious liberty? What happens to a traditional and historical understanding of a person—a human being embedded in political, religious, and local communities exercising virtues such as friendship, love, duty, and citizenship—when it is defined in the context of a soulless corporate world with the primary purpose of maximizing profits?
On MSNBC:
[Liberal] LAURENCE TRIBE, constitutional lawyer: Well, actually, I think the journalistic account of the Roberts court's world view is much too simplistic. The world view is very complicated, and it pushes in lots of directions. One reason that I wrote this book with my wonderful former research assistant Joshua Matts is to clear things up a little bit.
Like in today's case, the court was not elevating corporations above actual human beings. It was interpreting an act of Congress where Congress in the Religious Freedom Restoration Act itself said that corporations, along with people and along with unions, should be able to argue that something needlessly burdens their religion.
Employees could make exactly the same argument and have in many successful cases. And what the court said was that as long as the government can provide the contraception at public expense, there is no need to burden the religious beliefs of closely held corporations whose owners basically operate the business. That's not as radical a decision as some people think.
Read more: http://newsbusters.org/blogs/connor-williams/2014/06/30/stop-cut-out-caricature-narrative-roberts-court-liberal-law-prof-te#ixzz36R9hE8fA
http://hotair.com/archives/2014/06/30/video-lefty-law-prof-tired-of-msnbc-mindlessly-bashing-the-roberts-court-as-pro-corporation/
For a scholarly analysis see also
http://harvardlawreview.org/2014/05/hobby-lobby-corporate-law-and-the-theory-of-the-firm/
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This may not be so radical a decision, but it has prompted many thoughtful conversations that are not so bad to have. The issue of whether corporations ought to be seen to have religious beliefs is not unworthy of continued contemplation, no matter what has been ruled in the past. And, perhaps more importantly to me, as a woman, this decision seems to suggest that there is something special about religious issues with contraception as taken and controlled by women. As if this special concern holds more moral authority than a concern about vasectomy, or transfusions, or vaccinations. If the case had been broader in scope, would the decision be the same?
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