Corporate Religious Freedom Means Freedom to Discriminate

Corporate Religious Freedom Means Freedom to Discriminate

Corporate Religious Freedom Means Freedom to Discriminate

If the Supreme Court rules that corporations have the right to free exercise of religion in the Hobby Lobby case, what happens to civil rights law?

Facebook
Twitter
Email
Flipboard
Pocket

Reports from the Supreme Court, where the Hobby Lobby case was argued today, suggest that a majority of the judges appear sympathetic to the idea that corporations are not just people, but people with religious liberty. “The court seemed ready to accept that at least some for-profit corporations may advance claims based on religious freedom,” Adam Liptak wrote in The New York Times. Granted, it’s easy to read too much into the judges’ questions, and no one knows how the case will ultimately be decided. Still, it seems possible that logic of the Citizens United case – that corporate “persons” have the same first amendment rights to political speech as individuals – is about to be expanded, with frightening implications that go far beyond birth control.

After all, if corporations enjoy the free exercise of religion, all sorts of civil rights protections will be endangered. Nationwide, businesses have claimed that religious liberty grants them the right to discriminate against gay customers. Some religious sects object to placing women in positions of authority over men – if corporations have religious liberty, would such beliefs allow them to deny women promotions? Would companies owned by devotees of one faith be permitted to discriminate against job seekers of of another? According to a brief filed by Solicitor General Donald Verrilli, who is arguing the Hobby Lobby case for the administration, that’s a live possibility. “Respondents’ approach would even allow a for-profit corporation to discriminate in employment, such as by refusing to hire a devout member of a religion other than that of the corporation’s owner,” he wrote.

A new paper by University of Michigan Law School professor Sam Bagenstos on the creeping threat to Title II of the 1964 Civil Rights Act explains some of the danger here. Bagenstos highlights the Supreme Court’s 2001 decision in Boy Scouts of America v. Dale, which exempted the Boy Scouts from a state law banning anti-gay discrimination in public accommodations. The court, wrote Bagenstos, “held that application of that law to bar the Scouts from excluding an openly gay Assistant Scoutmaster from membership violated their First Amendment rights of expressive association.” Commentators, he wrote, minimized that decision as applying only to non-profit “expressive associations,” not for-profit businesses. But Bagenstos argues that that distinction has always been unstable, and that the plaintiffs’ theory in the Hobby Lobby case would collapse it.

“[O]ne potential implication of the challenges to the contraception mandate is the further erosion of the already flimsy commercial/expressive distinction,” he writes. “A crucial premise of the challenges is that secular, for-profit corporations can be a vehicle for the religious exercise of their shareholders and that regulation of those corporations can violate rights to free exercise of religion.”

If that premise is affirmed, then it follows that corporations, like religions, have the right to discriminate, and not just when it comes to their employees’ healthcare.

Thank you for reading The Nation!

We hope you enjoyed the story you just read, just one of the many incisive, deeply-reported articles we publish daily. Now more than ever, we need fearless journalism that shifts the needle on important issues, uncovers malfeasance and corruption, and uplifts voices and perspectives that often go unheard in mainstream media.

Throughout this critical election year and a time of media austerity and renewed campus activism and rising labor organizing, independent journalism that gets to the heart of the matter is more critical than ever before. Donate right now and help us hold the powerful accountable, shine a light on issues that would otherwise be swept under the rug, and build a more just and equitable future.

For nearly 160 years, The Nation has stood for truth, justice, and moral clarity. As a reader-supported publication, we are not beholden to the whims of advertisers or a corporate owner. But it does take financial resources to report on stories that may take weeks or months to properly investigate, thoroughly edit and fact-check articles, and get our stories into the hands of readers.

Donate today and stand with us for a better future. Thank you for being a supporter of independent journalism.

Thank you for your generosity.

Ad Policy
x