Religion Snapshots: Reflections on the Hobby Lobby Affair, Part 1

Religion Snapshots is a feature with the Bulletin for the Study of Religion blog, where a number of contributors are asked to briefly comment on popular news items or pressing theoretical issues in the field, especially those topics relating to definitions, classification and method and theory in the study of religion more generally.

Mike Graziano: To my mind, the most interesting development from Hobby Lobby might be the potential consequences stemming from for-profit corporations having legally recognized religious beliefs, and thus being eligible for First Amendment protections.

Two trends in the history of American religion are relevant to the situation in Hobby Lobby. First, recent scholarship has emphasized the role of law and the state in the history of religion in America. Second, there has been an increased focus on secularism. For all the myriad forms this body of work has taken, it has resulted in the assertion that what Americans have traditionally thought of as secular is perhaps better understood as the political maintenance of certain Protestant notions of the public sphere. Sitting at the intersection of this research has been work on how the American legal system has struggled to accommodate such developments in the category of “religion.” Winnifred Sullivan made this point four years ago:

More accurately perhaps, these new cases recognize that “establishment” and “disestablishment” as structuring ideas for organizing religious life are no longer relevant. Religious life is so entirely disaggregated and religious authority so thoroughly shifted to the individual that both establishment and disestablishment are functionally impossible (Sullivan, 2010, p.94).

If, as Sullivan and others suggest, “religion” is increasingly universalized and omnipresent—and that consequently “establishment” and “disestablishment” prove less useful as legal concepts—we would expect to see legal developments to that effect. I think it’s safe to say that we have. Since Sullivan published her essay, a string of cases from Hosanna-Tabor (2012) to Town of Greece (2014) and finally the recent Hobby Lobby (2014) have been decided in such a way as to make clear that there is a radical lack of consensus not only about what benefits legally-recognized religious entities can receive, but also regarding what kind of entities count as religious in the first place. 

For scholars of religion, of course, this isn’t particularly surprising. We’re quite familiar with such debates. Yet I am curious whether we can use the disagreements in Hobby Lobby to better understand the changing relationship between legally-recognized religious and economic bodies in the United States. 

So, in the hope of getting conversation rolling: What assumptions (whether about the nature of “religion,” the malleability of “personhood,” etc.) structure the debates around Hobby Lobby? What do we make, for example, of Ruth Bader Ginsberg’s argument in her dissent that “Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations”? Likewise, how might we respond to Samuel Alito’s statement (in the majority opinion) that “HHS [the US Department of Health and Human Services] would put these merchants to a difficult choice: either give up the right to seek judicial protection of their religious liberty or forgo the benefits, available to their competitors, of operating as corporations”? I think that both Alito and Ginsberg, in the way they draw the borders between economic and religious entities, say a great deal about the contestation over the category of “religion” in American law.

Carl J. Stoneham:

Corporations become self-aware at 9:17 a.m. Eastern time, June 30^th

There have been quite a few pixels burned in the past week over the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc. While I’m of the opinion that much of the furor is based on a basic misunderstanding of the Court’s decision, what has intrigued me is how the controversy seems to have ignored a surprising point: corporations can be Christian. Sure, for decades we’ve easily spoken of this “Christian business” or that “Jewish organization,” but it’s usually been as a way of referring to the people within, rather than the legal entity itself. As Mike has shown, this SCotUS decision (among others) has changed our understanding in a serious way, and it seems that few have batted an eye.

The hinge of SCotUS’s ruling is the interpretation of “person” (in this case, as used in the Religious Freedom Restoration Act (RFRA)). Since at least Dartmouth College v. Woodward in 1819, the Supreme Court has recognized the notion of “corporate personhood” as a way to both protect the rights of the individuals comprising the corporation and to simplify complex legal matters. Still, there have always been important limits. While corporations can, for example, own property or sue, they do not enjoy such rights as that against self-incrimination (corporations cannot “plead the Fifth”). In practical terms, this means (meant?) that SCotUS (and yes, Mitt Romney too) recognize the concept of “corporate personhood” as a convenient legal fiction that keeps in place the important protections a corporation offers the individual without impinging on said individual’s rights. Where Monday’s decision should raise eyebrows is in how this legal fiction of the cooperation as a “person” continues to move ever-closer to legal non-fiction.

In response to Health and Human Services’ contention that “the companies cannot sue because they are for-profit corporations, and that the owners cannot sue because the regulations apply only to the companies,” Justice Alito, writing for the majority, responded that this “would leave merchants with a difficult choice: give up the right to seek judicial protection of their religious liberty or forgo the benefits of operating as corporations.” Because, he writes, “[n]othing in RFRA suggests a congressional intent to depart from the Dictionary Act [of 1871—an interesting read in its own right—] definition of ‘person,’ which ‘include[s] corporations, … as well as individuals,’” the majority holds that there is “no persuasive explanation for [the] conclusion” that “Conestoga, Hobby Lobby, and Mardel … cannot ‘exercise … religion.’” No. Persuasive. Explanation. (Is it appropriate to include a “O_o” in a blog post?)

Shouldn’t religion scholars fret at least a bit over the fact that the government was apparently unable to make the case that corporations cannot “exercise religion” (an interesting phrase in and of itself)? To support its own decision, the Court cited as precedent Employment Div. v. Smith, 1990, a case where the State of Oregon’s choice to deny unemployment compensation to two Native Americans—who had been fired from their jobs for the sacramental use of peyote—was upheld. It is important to understand what happened here: the Court relied on a case where the right of a state (!) to deny claims of religious exercise by individuals (!) was used to support the notion that a corporation (!) can “exercise religion,” and the government lawyers could not make a persuasive counter-argument.

Because I have to believe that the government lawyers were not so naïve as to go before the Supreme Court having not scoured the work of religious scholars for just such persuasive arguments, I have to wonder if the contribution of Religious Studies to public discourse is such that there are no persuasive arguments against a legal fiction exercising religion?

Mike has offered Winnifred Sullivan’s work as insight into these questions of (dis)establishment, but that seems to me to be more of a commentary on the meta-issue rather than a positive (or negative) stand regarding the point itself. Certainly legal scholars have weighed in on the issue, but what of religion scholars? Is our work of such irrelevance that a decision of such magnitude as Burwell v Hobby Lobby cannot find from within our ranks a “persuasive argument” against the ability of a corporation to “exercise religion?” Or is it perhaps that we ourselves don’t know, and that our constant hand-wringing over “what is religion” has somehow been mirrored by the U.S. legal system? (Or perhaps there’s a simple third option: that none of us disagrees that corporations can do such a thing?) Whatever the answer, it seems to me that the task of understanding and explaining “religion” just got a whole lot more important—and complicated.