Here's a commentary by a Christian professor of political science about the President's incrementally larger space for freedom from the mandate for employers to include coverage of a variety of contraceptive/abortifacient pharmaceuticals for their employees. While Professor Sherrat's comments make some sense from an extra-legal point of view, the question remains how it is that corporations qua corporations have free exercise rights. In other words, don't the disadvantages of the corporate form of business accompany its advantages? David Green is not the owner of Hobby Lobby; he owns stock in a corporation named "Hobby Lobby." I doubt that the corporation as such worships God.
Notwithstanding the "soulless" nature of the legal artifice of the corporation, the Supreme Court has afforded corporations many of the protections of the Bill of Rights through the 14th Amendment. SCOTUS has held that "person" as used in that amendment's safeguards of due process, equal protection, and privileges and immunities includes corporations as well as natural persons (i.e., human beings). This is the justification for the Court's extension of 1st Amendment right of free speech, including the right to make contributions to political candidates, extends to corporations and unions of employees. (See some of my comments about this topic in connection with the Citizens United case here and here.)
From a constitutional perspective, the question raised by the Affordable Care Act is whether the rights of corporations include the free exercise of religion. And, if they do, how do we know what religion a corporation "wishes" to exercise? The answer to that question seems clear in the case of Hobby Lobby, which I understand is closely held by David Green and his family. But what if a corporation has two shareholders whose religious convictions diverge at some relevant point? Does the corporation enjoy the right to exercise both or neither of the religious convictions of its shareholders?
Perhaps the courts do not need to reach the vexing constitutional issue. Perhaps the Religious Freedom Restoration Act (RFRA) answers the question. Several of the Courts of Appeals have addressed this narrower question and thus far have suggested corporations have protection under RFRA. Ultimately this question too will reach SCOTUS.
It is the scope of the ACA that creates the free-exercise problem. Were the federal government not trying to mandate the terms of private employment arrangements, there would be no controversy. No one denies that employers may include the insurance coverages to which some object. Employees could "vote with their feet" and chose not to work for companies that did not provide the coverage they wanted, just as they can chose not to work for someone who pays less than the employer down the street. In short, the ACA takes the understandable wish to provide everyone with some form of health insurance and places the burden of its implementation on employers, not the federal government. The desire to have it both ways--to get what it wants at someone else's expense--is what creates the ACA's constitutional conundrums.
Notwithstanding the "soulless" nature of the legal artifice of the corporation, the Supreme Court has afforded corporations many of the protections of the Bill of Rights through the 14th Amendment. SCOTUS has held that "person" as used in that amendment's safeguards of due process, equal protection, and privileges and immunities includes corporations as well as natural persons (i.e., human beings). This is the justification for the Court's extension of 1st Amendment right of free speech, including the right to make contributions to political candidates, extends to corporations and unions of employees. (See some of my comments about this topic in connection with the Citizens United case here and here.)
From a constitutional perspective, the question raised by the Affordable Care Act is whether the rights of corporations include the free exercise of religion. And, if they do, how do we know what religion a corporation "wishes" to exercise? The answer to that question seems clear in the case of Hobby Lobby, which I understand is closely held by David Green and his family. But what if a corporation has two shareholders whose religious convictions diverge at some relevant point? Does the corporation enjoy the right to exercise both or neither of the religious convictions of its shareholders?
Perhaps the courts do not need to reach the vexing constitutional issue. Perhaps the Religious Freedom Restoration Act (RFRA) answers the question. Several of the Courts of Appeals have addressed this narrower question and thus far have suggested corporations have protection under RFRA. Ultimately this question too will reach SCOTUS.
It is the scope of the ACA that creates the free-exercise problem. Were the federal government not trying to mandate the terms of private employment arrangements, there would be no controversy. No one denies that employers may include the insurance coverages to which some object. Employees could "vote with their feet" and chose not to work for companies that did not provide the coverage they wanted, just as they can chose not to work for someone who pays less than the employer down the street. In short, the ACA takes the understandable wish to provide everyone with some form of health insurance and places the burden of its implementation on employers, not the federal government. The desire to have it both ways--to get what it wants at someone else's expense--is what creates the ACA's constitutional conundrums.
No comments:
Post a Comment