Liberal commentators have been up in arms since the Supreme Court ruled that the Affordable Care Act’s contraceptive mandate violated the religious liberty of corporations owned by committed Christians, applying a 1993 federal law called the Religious Freedom Restoration Act (RFRA). The court’s five conservatives were in the majority, with a plaintive dissent from its four liberals.
Another conservative victory in the court’s ongoing culture wars, right?
Not so fast. Burwell vs. Hobby Lobby answered two questions, and each answer channels core liberal principles.
The first question was: Can for-profit corporations invoke religious liberty rights under RFRA? The court answered yes. HBO’s John Oliver nicely expressed the automatic liberal riposte, parodying the idea that corporations are people. It is very funny stuff.
It is not, however, especially thoughtful stuff. The court does not argue that corporations are just like real people. Rather, it argues that people often exercise faith collectively, in organizations. Allowing those organizations to assert religious-liberty rights protects the liberty of the persons acting within them. The obvious example is churches, usually legally organized as nonprofit corporations.
The real issue is not whether corporations of any type can ever claim protection under RFRA — sometimes they can. The issue is whether for-profit corporations can ever have enough of a religious purpose to claim that protection.
To me, as a professor of corporate law, liberal denial of this point sounds very odd. In my world, activists and liberal professors (like me) are constantly asserting that corporations can and should care about more than just shareholder profit. We sing the praises of corporate social responsibility.
Well, Hobby Lobby is a socially responsible corporation, judged by the deep religious beliefs of its owners. The court decisively rejects the notion that the sole purpose of a for-profit corporation is to make money for its shareholders. This fits perfectly with the expansive view of corporate purpose that liberal proponents of social responsibility usually advocate — except, apparently, when talking about this case.
The court’s conclusion that RFRA can protect corporations forced it to face a second question: Does the contraceptive mandate violate religious liberty rights in a way that the government cannot justify? The court said it does.
Reasonable people of good faith can easily differ on this question — I personally have waffled on it. However, most liberal commentators, including the four dissenting justices, seem deeply uncomfortable with RFRA’s strong protection of religious liberty against laws that do not explicitly regulate religious beliefs. Such liberals want to limit RFRA.
Is RFRA a conservative power grab giving religious lawbreakers a “get out of jail free” card?
History suggests otherwise. RFRA reversed Justice Antonin Scalia’s 1990 opinion that denied protection to Native Americans who used peyote in religious ceremonies. The dissenters in that case were Justices Harry Blackmun, William Brennan and Thurgood Marshall — three of the leading liberals in the court’s history. Those liberals lost in court, but Congress vindicated them three years later by passing RFRA.
Democrats controlled both the Senate and the House at the time, and RFRA passed by a 97-3 vote in the Senate and unanimously in the House. That is not a typo.
Bill Clinton signed RFRA into law.
Thus, liberal titans on the court, in Congress and in the White House vigorously supported RFRA’s strong protection of religious liberty.
Why? Because RFRA reflects the core liberal values of toleration and respect for diverse viewpoints. In a world with a litter of laws and a rainbow of religions, even well-intentioned laws sometimes seriously burden some believers. If we can ease that burden by modifying the law while doing little damage to the law’s legitimate purpose, we make it easier for diverse groups to coexist.
The court plausibly found that a modest extension of an already-existing accommodation for some religious organizations to corporations like Hobby Lobby would avoid burdening religious beliefs without hurting the company’s employees.
What we have in Hobby Lobby is an opinion grounded in corporate social responsibility and respect for diverse points of view. The Supreme Court’s five conservatives have delivered a profoundly liberal opinion. Too bad so many liberals don’t seem to realize it.
Brett McDonnell is a professor at the University of Minnesota Law School. The views expressed here are solely his own.