David Gushee has offered a rather brief sketch of why he thinks Hobby Lobby should lose in its case currently before the Supreme Court. I say “sketch” because he sketches out some of the legal and ethical issues and offers his opinion without really offering an argument connecting the two. But I think we can surmise the argument from what he calls his “Critical Questions” at the end:
1) Do we really want to blur the line between the legal status of for-profit corporations over against churches and religious ministries?
2) Is there really no difference between an individual with an eternal destiny, a church with a Great Commission mandate, and a for-profit business? What does that say about our theological (and legal) understanding of persons and the church?
3) Wouldn’t a win for Hobby Lobby really mean that we would be ensuring that the religious convictions of the one (business owner/family) would then trump the needs (and convictions) of the many (everyone who works for that business)? Do we want to give business owners that kind of power?Cuius corporatio, eius religio?
4) What happens when, say, a Christian Scientist company owner decides not to cover any health benefits, or a Jehovah’s Witness company owner decides not to cover blood transfusions, or an anti-vaccination owner decides not to cover the MMR shots, or perhaps a trust-Jesus radical decides not to contribute to employee Social Security or a 401(k)? Do we really want to open up that Pandora’s Box?
5) Are critics taking seriously the public health benefits of no-cost contraception coverage, and the moral benefits of thelikely dramatic reduction in the number of unplanned pregnancies and abortions? Or does their principled objection to contraception and/or (perceived) abortifacients totally trump data related to the actual impact of no-cost access to contraception?
6) Do we see any legitimate role for government — e.g., our elected representatives in Washington making public laws to advance public purposes, including public health? Or has anti-government libertarianism entirely eroded such convictions?
7) Can we see (again) how the effort to mediate the delivery of access to health care through company health plans is really problematic? A single-payer government plan would take the corporate religious liberty issue completely off the table.
Ignore #s 7 (it would also not be a problem if employer and individual insurance plans were treated the same under the tax system), 6 (straw-man), and 5 (Gushee’s not a utilitarian, so he shouldn’t be taking this seriously). I think Gushee’s case is really two-fold, namely that for both theological and moral-political reasons, we should keep the distinction between for-profit corporations and other entities and decline to afford the former religious liberty protections. Let me suggest why I think Gushee is mistaken in this.
First, note that it is perfectly legitimate to make any number of distinctions with regard to different sorts of organizations, theologically and politically. So the question is whether a for-profit corporation should be considered the sort of thing that deserves some sort of religious protections? Assume that Gushee is on board with exemptions for non-profit religious associations (which I think he is, though #5 above cuts against it and I haven’t read him making the argument on them in particular). What makes for-profit corporations undeserving?
One answer might be that it could have any number of bad consequences, opening the doors to companies of all sorts making religious liberty claims against the ACA’s employer mandate. (E.g. the Christian Scientist who doesn’t want to offer health insurance at all). It’s entirely possible, of course, that if Hobby Lobby wins, such exemptions might go wild. But as Eugene Volokh explains in a nice primer on religious exemptions, that’s rather unlikely. In these sorts of cases, Courts are being asked whether a particular government action represents a “compelling interest. It seems reasonable to presume–and there’s plenty of case law to back this up–that courts would indeed think that a government mandate to provide health insurance would count, as opposed to this, where what is in question is whether the companies are required to purchase health insurance plans that provide free contraception. Note this. This is not about whether women have access to contraception, but whether they have it for free. And the question is whether the state must compel companies to offer it for free. Gushee’s suggestion here, while not out of the range of possibility, is really just a “parade of horribles” that seems really quite unlikely, to say the least.
But that’s really not the heart of Gushee’s argument, I think. He really wants us to focus on #s 1, 2, and 3. (Or he should – these are certainly the more interesting arguments, at least as a matter of Christian ethics.) Let’s simplify things a bit and just put the objections this way: for-profit corporations are the sorts of entities that should not be afforded religious liberty protections because they are not the sorts of entities that can “exercise” religion. Again, that’s not an implausible claim. We would think it strange to suppose that GM could “exercise” religion and if we can’t distinguish (theologically and philosophically) between GM and First Baptist Church of Macon, it’s plausible to think that First Baptist’s rights will suffer, not GM’s. But that depends, I think, on reducing the question to a simplistic binary: this sort of thing gets religious freedom protections and that sort of thing doesn’t. But religious freedom protections are not all of a piece and it makes sense to differentiate even among different sorts of religious organizations. It makes perfect sense (to me) for the state to have nothing to say about how churches choose their ministers. It also makes perfect sense (to me) for the state to have little to say about how places like Wheaton College (where I teach) require faculty to adhere to certain faith commitments and agree to certain behavioral standards. It makes much less sense for schools where, though they may have some religious affiliations, they do not make serious distinctions as regards employment. (So a school like, say, Georgetown University should probably not get latitude from the federal government on hiring practices because they do not evince much of a serious religious identity). The trouble with the all-or-nothing approach is that, ultimately, it will have the effect (I fear) of stripping all but the most resolutely “religious” associations of their religious liberty protections. In other words, unless we’re willing to entertain these sorts of complex, nuanced, and messy distinctions, the “bright line” will eventually get drawn around churches proper–and little else will be included.
But, still, we might ask, why Hobby Lobby (or Conestoga Wood, which is also having its case litigated)? Perhaps its its status as a corporation, which we have constructed as a means of incentivizing investment and entrepreneurship in that it shields the personal assets of the owners against the corporation’s debts. Why not think that this shield should work both ways? That sounds enticing, but notice that it suggests that the owners’ consciences should stop at the corporate barrier – why is that? Don’t those who own and run corporations have moral obligations just like everyone else? Isn’t the corporation that decides to pollute its neighbor’s property doing him harm, just like if I do it in my personal capacity? Don’t corporations have obligations, just like I do, to treat workers and others fairly?
And this is the real problem with what I take to be Gushee’s argument: it suggests that for-profit corporations are the sorts of things in which the owners’ religious consciences (or, really, any other sort of consciences) should not flow through. That seems to me a serious mistake–and one that has, oddly enough, more in common with some (not all) libertarian conceptions of firms than I’d expect from him. Suppose we draw the line here and say that for-profit corporations cannot be places where owners can be thought to exercise their religious conscience. How does that shape our conceptions of what corporations are for? My suggestion is that it reinforces the idea that *all* corporations are for is the amassing of wealth for its owners. Some certainly see their corporations in that light. Is that how Christians (or anyone else) should see them? I hope not.