Religious Exemptions for Corporations?

November 30, 2013

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The Supreme Court has agreed to hear the cases of two corporations–Hobby Lobby and Conestoga Wood Specialties Corp.–that want an exemption on religious grounds from providing their employees contraception coverage under the Affordable Care Act. The owners maintain that having to include such coverage in their corporate health care plans violates their religious rights.

In order to make their case, they will have to convince the Court that for-profit corporations as well as individuals and religious organizations have first-amendment religious rights, and also that this particular exemption from the law is constitutionally required. Lower courts have disagreed over these issues.

Do corporations have religious rights?

Advocates for the religious exemption argue that the corporate form of ownership shouldn’t stand in the way of exercising religious rights. Individuals who have a controlling interest in a corporation should be as free to follow their religion in their corporate policies as in their personal choices.

Although courts have considered corporations “persons” in some respects, they have always maintained some distinction between individual rights and corporate rights. Individuals are natural persons with natural or “God-given” rights that the state must respect. Corporations are legal entities that owe their very existence to a state charter. The state can decide which rights they need in order to carry out their social functions, such as the right to make contracts and take positions on social issues. In Citizens United, the Supreme Court went farther than courts have gone before in defining corporate spending on political campaigns as a speech right required by the Constitution. Nevertheless, some rights are still reserved for natural persons, such as the right to vote. The right to practice a religion is among the most personal of rights, and one would think it would be the last one to be associated with for-profit corporations. Individuals who share ownership of a corporation separate themselves from it by disclaiming any liabilities for its losses beyond the value of their shares. Can they at the same time expect to use the corporation as a vehicle for exercising their personal religion?

If the Court does take the novel position that corporations have religious rights, that will invite a great deal of future litigation to establish just what those rights are.

Is an exemption from contraceptive coverage a legitimate religious exemption?

Even if the Court does agree that corporations as well as individuals can claim exemptions from federal laws on religious grounds, it still will have to deal with the legitimacy of the contraceptive exemption in particular.

Eugene Volokh has provided a good summary of religious exemption law. Before 1993, the Supreme Court had ruled in somewhat conflicting ways on the issue. In Sherbert v. Verner in 1963, the Court recognized a presumptive constitutional right to exemptions on religious grounds, placing the burden on the state to show why the exemption should not be granted.

Obviously, the state had to be able to draw the line somewhere; otherwise a Muslim could claim that only governments based on Islamic law are legitimate, and that Muslims living in the United States can’t be compelled to support the government in any way, such as by paying taxes.

To distinguish cases where religious objectors win from those in which they lose, the Sherbert-era Court used what it called “strict scrutiny” when the law imposed a “substantial burden” on people’s religious beliefs (e.g., when it banned behavior that the objectors saw as religiously compelled, or mandated behavior that the objectors saw as religiously prohibited):  Religious objectors must prevail unless applying the law to them is the least restrictive means of serving a compelling government interest.

In the hypothetical Muslim case, the state could argue that collecting taxes on all incomes is the least restrictive means of serving the compelling interest of funding the government, whether each individual likes that government or not. On the other hand, a law banning head scarves would probably not be acceptable in this country, since the state would have trouble showing a compelling government interest that justified making Muslims violate their beliefs.

In 1990, the majority in Employment Division v. Smith gave legislators much more freedom to grant or refuse religious exemptions at their discretion. Laws were constitutional as long as they applied to citizens without regard to their beliefs and didn’t discriminate against any religion. However, in 1993 Congress passed the Religious Freedom Restoration Act, which essentially wrote the older Sherbert standard into law, at least with regard to federal law. (In 1997, the Supreme Court recognized the right of the states to make their own laws regarding religious exemptions.)

Even under the Sherbert standard, religious exemptions have not been easy to obtain. In the contraception cases, the corporations will first have to show that providing contraceptive coverage to their employees places a substantial burden on the exercise of their religion, since it compels them to engage in religiously prohibited behavior. This might be considered something of a stretch, since the law doesn’t require them either to use contraceptives themselves or provide them directly to others, but only share the cost if employees exercise their own freedom to use them. Perhaps more challenging, they will also have to show that the state has no compelling government interest in making contraception affordable, or that there are less restrictive ways of accomplishing that end. The Center for Reproductive Rights argues that the Court has already recognized the state’s compelling interest in preserving women’s health, and that the negative effects of unintended pregnancy have already established “the essential role of contraception as a preventive health service to prevent those health impacts.”

In some cases, courts have considered the effect that someone’s exercise of religion could have on people of other religions. In Griswold v. Connecticut (1965), the Supreme Court struck down Connecticut’s ban on contraceptives as a violation of a personal right of privacy. One could argue that the state’s compelling interest extends to protecting the individual’s right to contraceptive access, and that a corporate exemption from contraceptive coverage would expand the employer’s freedom at the expense of the employee’s freedom.

If the Court rules that corporations as well as individuals can obtain religious exemptions, then drawing the line between acceptable and unacceptable exemptions will become even more important. One hotly contested area is sure to be antidiscrimination law. Religious organizations already have a “ministerial” exemption; they are free to discriminate in favor of their own believers in filling important positions. They are also free to discriminate against women, as the Catholic Church does by refusing to ordain them. And even if the Employment Non-Discrimination Act (ENDA) is passed, churches will still be allowed to discriminate against gays and lesbians. If the argument for religiously-based corporate exemptions is upheld, some corporate owners will no doubt claim a right to discriminate on a wide variety of religious grounds.

One of the provisions of the Religious Freedom Restoration Act that I find most troubling is that the beliefs on which an exemption is based do not even have to be “longstanding, central to the claimant’s religious beliefs, internally consistent, consistent with any written scripture, or reasonable from the judge’s perspective. They need only be sincere” (Volokh). Senator Jim Inhofe of Oklahoma has said that we don’t need to worry about catastrophic climate change, since God wouldn’t allow it. If personal religious beliefs can be the basis for corporate exemptions, then a corporation could claim exemption from environmental regulations on such grounds. Hobby Lobby maintains that its real moral concern is abortion, since contraceptives sometimes work by preventing implantation of a fertilized egg. But if the effect of their exemption is that fewer health insurance policies cover contraception, the result could easily be more unwanted pregnancies and more abortions. The corporation’s position doesn’t have to be reasonable in order to be upheld.

The state cannot compel individuals to think rationally, but maybe it needs to be less permissive when it comes to corporate and public policy. Those who dislike federal regulation in general–which includes a number of our current Supreme Court justices–may welcome exceptions for anyone with a sincere objection, no matter what it is. But corporate behavior has too many public consequences to be too easily exempted from public laws. If a corporation dislikes a law, let it make an argument for changing it in the public forum, providing facts and reasons that people of all religious perspectives can understand.


America’s Right (part 3)

October 25, 2013

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Robert B. Horwitz analyzes the Tea Party as the latest expression of anti-establishment conservatism, a political force that has been around for a long time but has gained support since the decline of the postwar liberal consensus in recent decades. Two particular movements discussed in the previous post–the new religious right and neoconservatism–had largely taken control of the Republican Party by 2000, and their ideas were especially influential in the George W. Bush administration. However, “the Bush presidency…left the country with two long-running, unfinished wars on its hands, a colossal rise in the federal debt, and the worst economic crisis since the Great Depression.” In 2008, the election of Barack Obama gave control of the White House and both houses of Congress (briefly) to the Democrats. The Tea Party emerged in 2009 as an outraged response on the part of extreme conservatives to this sudden change of fortune.

The Tea Party reacted especially strongly to several of the new administration’s policies that they saw as “socialist”: the Troubled Asset Relief Program that lent money to shaky financial institutions (actually initiated under the previous administration), the American Recovery and Reinvestment Act that spent $787 billion to create jobs and stimulate the economy, and the Patient Protection and Affordable Care Act to subsidize health insurance for uninsured Americans. The Tea Party was successful in electing more Republicans in the 2010 midterm election, many of whom openly identified with Tea Party positions.

Demographically, Tea Party supporters are more likely than most voters to be white, male, over 45, evangelical Protestant, Southern or Western, and either Republican or independent. Many have been small business owners. Ideologically, they seem to draw primarily on the libertarian strain in conservative thinking, strongly critical of taxation and business regulation. Tea Party candidates “advocated the continuation of the Bush tax cuts, the repeal of the estate tax, and the replacement of the progressive income tax with a flat tax or national sales tax.” (The “Tea” in Tea Party is also an acronym for “Taxed Enough Already.”) Sometimes they question the very legitimacy of taxation, suggesting that taxing personal income for anything but the most basic government functions amounts to criminal theft. Sometimes they reject modern government agencies–such as the Federal Reserve Board and the Environmental Protection Agency–as unconstitutional, since the Constitution doesn’t specifically authorize them.

Horwitz warns against focusing on Tea Party libertarianism to the point of missing the religious element in the movement. “Accompanying the Tea Party plea to restore genuine capitalism is also a call to restore genuine Christianity.” Tea Partyers are attracted to the writings of W. Cleon Skousen, popularized by Fox News host Glenn Beck. Skousen claims that the inspiration for American principles of limited government came primarily from the Bible, not from the European Enlightenment, with the implication that the modern expansion of government is a deviation from the divinely ordained social order. Senate candidate Sharron Angle said, “Entitlement programs…make government our God.” (She lost, suggesting that associating Social Security with sin is a little much for most voters.) A more popular moral argument against Big Government is that dependency on government undermines personal responsibility.

Although the Tea Party does fuse libertarianism and moral traditionalism to a degree, the movement has not shown much support for the neoconservative moral crusade to bring democracy to other countries. “Neoconservatives are largely in eclipse in the current Tea Party movement,” which is mainly focused on domestic issues.

Horwitz’s analysis and critique of the Tea Party draws on the earlier work of Richard Hofstadter, who described a “paranoid style in American politics” in his effort to understand the popularity of Joe McCarthy and Barry Goldwater. Hofstadter suggested that their supporters were suffering not from real economic deprivation but from “status anxiety,” described in Horwitz’s words as “the psychological sense of loss of rank and place, of an intense feeling of victimhood, and the need to find and punish those responsible for this.” Hofstadter saw the roots of that status anxiety in a transformation of the American liberal tradition:

The New Deal…marked a striking departure from the Populist-Progressive heritage, in Hofstadter’s view. If the old liberalism had been Protestant and ideological, rooted in a backward agrarian ideal, the new liberalism was urban, ethnic, hospitable to non-Protestants, forward-looking, and results-oriented.

The status anxiety experienced by many rural Protestants was often accompanied by anti-intellectualism. Modernization meant new ideas, and new ideas called into question the authority of rural tradition, especially religious tradition. This current of anti-intellectualism surfaces today in the rejection of scientific views on evolution and climate change, and in the moralistic rejection of healthcare reform without regard to its actual consequences. Any number of recent social movements and trends could generate status anxiety in a typical Tea Partyer, such as an older, white, Southern, male, evangelical Protestant small business owner. How about the election of a younger, half-black, northern, liberal Protestant lawyer and community organizer?

Horwitz accepts much of Hofstadter’s analysis, but finds it incomplete. Anti-establishment conservatives may indeed suffer from status anxiety, but that doesn’t entirely explain their success in creating a movement that impacts political culture and decision-making. As a sociologist, Horwitz wants to focus on social institutions, not just psychological dispositions.

A starting point for this analysis is “the structural nature of political power within a mixed capitalist economy.” American society has a real power structure that arouses legitimate populist concerns about individual liberty. Yet participants in populist movements often misunderstand that structure, for example underestimating how much business and government cooperate to maintain a particular kind of capitalism. The Tea Party blamed “socialist” government for the bailout of the banks, but were remarkably forgiving of the financial institutions for the risky policies that brought them to the brink of bankruptcy in the first place. Tea Partyers largely overlook the possibility that modern government has to be big enough to regulate capitalism and protect citizens from the misadventures of the wealthy and powerful.

The bias of the state toward capitalist institutions is both structural and a mainstay of political culture….In times of grave economic crisis, during which the state acts to protect the socio-economic order through an unusual degree of intervention on behalf of capitalist institutions, some significant portion of the American citizenry becomes unnerved about individual autonomy–even when that intervention guards against further economic instability and even depression.

Horwitz’s institutional analysis also focuses on the institutions that anti-establishment conservatives built in order to spread and implement their ideas. These include fundraising networks, conservative media such as Fox News (encouraged by the Reagan administration’s abandonment of the Fairness Doctrine), and many political organizations. Here too, the neoconservatives and religious right prepared the way, especially by recruiting corporate contributors to the cause. Horwitz regards the Tea Party as a legitimate grassroots movement–not just “astroturf”–but it is heavily bankrolled by wealthy businessmen with their own pro-business/anti-government agenda, people who stand to gain from reductions in taxes and regulation. As a result, Tea Party policies “primarily serve the interests of corporate capitalism and the very wealthy,” although they are framed as supporting traditional American individualism.

Finally, Horwitz describes the dogmatism and utopianism of anti-establishment conservatism, which he regards as troublesome for a democratic society. In their zeal to defend their religion from evil government, some religious conservatives would erase the boundary between church and state and try to establish an overtly Christian state. For Horwitz, democracy requires striking a delicate balance between the sacred and the secular:

Democracy insures that people can practice religion freely; democracy must require the separation between church and state to be a democracy. That is the balance that must be struck in a democratic system: individuals can articulate religious arguments in the informal political public sphere, but as those arguments move into the formal institutional political realm they must be translated into secular, reasoned terms, in language and epistemic structure that are in principle accessible to all citizens.

Neoconservatism has also displayed dogmatism and utopianism, especially in its advocacy of global democracy established through American militarism. “The Iraq War was nothing if not a utopian project.”

The particular political phenomenon known as the Tea Party may be a temporary burst of outrage. The greater concern is the larger anti-establishment movement from which it came, and the dogmatic style that it brings to our politics. That style is more suited to opposing government than actually governing. And that, I might add, may explain a lot about today’s Republican Party.


America’s Right (part 2)

October 24, 2013

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Robert Horwitz’s America’s Right describes how the power of the Tea Party in today’s Republican Party developed out of a long tradition of anti-establishment conservatism, a tradition with roots in economic objections to the New Deal and Cold War fears of communism. The social and economic problems that fractured the postwar liberal consensus in the 1960s and 70s generated two conservative movements that brought anti-establishment conservatism into the political mainstream, especially the Republican mainstream. These were the new religious right and neoconservatism.

The religious right

Sociologists have described a process of secularization whereby religion and other social institutions become increasingly distinct and independent, creating the modern “separation of church and state.” Many theorists have expected religion to decline in public importance, retreating more and more into the private sphere of life. This would mean, in the words of Hugh Heclo, that “politics should be conducted on the basis of public reason (in principle accessible to all citizens) and not on the basis of religiously revealed truths or religiously sectarian teachings.” Public policy would be based increasingly on rational arguments supported by facts rather than religious beliefs.

However, making religion irrelevant to public policy is not as easy as it may sound. At the very least, Christians have hoped that their religious values, including the value they place on religious and other forms of liberty, will provide a cultural framework within which public goals are pursued. In addition, modernist and traditionalist disagreements over how Christians should see the world have been very relevant to their attitudes toward the state. In this connection, Horwitz discusses the distinction between postmillennialist and premillennialist versions of evangelical Protestant theology. Both views looked forward to a thousand-year reign of Christ before the end of the world, although the number of years wasn’t always taken literally. Postmillennialists thought that the second coming of Christ could occur after Christians had created an era of goodness through their good works in the world. Premillennialists thought that Christ had to come before goodness could prevail. The first view supported a more optimistic, modernist approach to the world, associated with the Social Gospel movement to improve society, often through political reform. The second view supported a more pessimistic, traditionalist approach, one that encouraged withdrawal from a sinful world and reliance on God, not government. “Traditionalists viewed the Social Gospel’s emphasis on good works and serving the poor as undercutting the elemental concern for repentance from sin and the dependence on God’s grace.”

In the nineteenth century, John Nelson Darby expounded an influential version of premillennialist theology that remains popular to this day:

Darby described Christ’s second coming as at the end of an apocalyptic period of “tribulation,” a period of war, famine, and social chaos during the seven-year rule of the Antichrist. The final battle of Armageddon focuses on the Jews and takes place in the biblical land of Israel. As the “end-times” unfold, true Christian believers and innocents are pulled from earth to heaven in the “Rapture.” Following Armageddon, Christ returns to establish a kingdom in Jerusalem, where he will reign for a thousand years.

Evangelical conservatism was especially strong in the South, perhaps because abolitionism was one of those liberal social movements that appealed more to religious optimists. Southern preachers countered that with a Biblical justification of slavery. If God allows slavery, who are we to change it?

Religious conservatism can provide a rationale for disengagement from the evil world and its politics, but also at times encourage active engagement to counter perceived threats to Christian culture. After failing in the early twentieth century to stop the spread of modernism in many denominations, traditionalists left them to start their own more independent churches and schools. They also took to the airwaves, coming to dominate Christian radio and television. They became very engaged in the crusade against communism, and many of them also crusaded against civil rights legislation, which they saw as communist-inspired. In the 1960s and 70s, they reacted against the sexual revolution and the feminist movement, which they perceived as destroying the traditional Christian family. As the government increasingly declined to enforce Christian standards of behavior–by legalizing abortion, allowing pornography, and prohibiting prayer in public schools–hostility toward government grew.

Republican political operatives then saw an opportunity to recruit religious conservatives to their party. One of those operatives, Richard Viguerie, maintains that the issue that most helped him do so was the racial desegregation of private schools. Most of the private Christian schools had been created after the Supreme Court’s school desegregation decision, and in the 1970s, the IRS began denying tax exemptions to schools that still discriminated. Christian conservatives interpreted this as an assault on religious liberty.

Catholics had stronger ties to the Democratic Party than Protestants, since they were historically more urban and working-class, but they too had turned majority Republican by 1980. They shared certain moral concerns with Protestant conservatives, especially abortion, but they also responded to a second, somewhat less religious movement toward the right, which was neoconservatism.

Neoconservatism

The term “neoconservatism” is probably most associated today with the architects of the Iraq invasion within the George W. Bush administration, but it is a much broader and older movement. Horwitz distinguishes between two generations of neoconservatives. The first includes people like Irving Kristol, Norman Podhoretz, Midge Decter, Sidney Hook, Nathan Glazer and Daniel Patrick Moynihan. They had generally been supporters of liberal social reforms, but by the late 1960s they were becoming more pessimistic about government efforts like the War on Poverty. They began to emphasize the limits that the prevailing culture places on government. Moynihan, for example, argued that the matriarchal structure of the poor black family (strong mother, weak husband) was an obstacle to black advancement. [When he first made that argument he still believed that government income support could strengthen the black family, but he turned against such programs when he discovered that the support could enable some poor women to leave their husbands! Liberals wanted to keep the focus on fighting poverty, not promoting patriarchy.]

Part of the neoconservative critique of government social programs was the idea of the “New Class.” Max Schachtman had criticized the new class of self-serving bureaucrats that he believed had corrupted socialism in the Soviet Union. Neoconservatives now applied this pejorative term to the designers and implementers of federal social programs, who were allegedly doing more to create power and income for themselves than actually solve social problems. This fed the anti-establishment hostility toward the government “elite” who enrich themselves at the taxpayers’ expense, not to be confused with the hardworking business leaders who create real jobs and real economic value.

In foreign policy, neoconservatives reacted against the loss of the Vietnam War and the Democratic nomination of the peace candidate, George McGovern, in 1972. They called for strengthening the military to deal with the Soviet threat (later revealed to be greatly exaggerated), and considered the use of more aggressive tactics such as a nuclear first strike. When the Cold War ended with the unexpected collapse of the Soviet Union, “the first generation of neoconservatives…drifted back to a more reserved foreign policy realism and began to advocate a more modest American presence in the world.”

However, a second generation of neoconservatives, including such figures as Richard Perle, William Kristol, Douglas Feith, Paul Wolfowitz and Francis Fukuyama, responded to the end of the Cold War with a call for a more moralistic and idealistic foreign policy. America’s position as the sole remaining superpower was an opportunity to make the twenty-first century the “American Century,” bringing the benefits of American-style democracy to the rest of the world, by force if necessary.

In practical terms, this translated into calls for substantial increases in the military budget, support for missile defense systems, and a foreign policy dedicated to transformation, not coexistence; for “regime change,” not mere stability and containment; for an aggressive unipolar internationalism rather than a balance of power realism. The fall of the Soviet Union created the possibility of a unipolar peace, a Pax Americana. Because American interests were tied inextricably to universal liberal values, any transformation of bad political regimes was a blessing to the world as well as a benefit to the United States.

Both the religious right and neoconservatism expanded their control over the Republican Party from the 1970s to the 2000s, reaching their greatest influence to date in the presidency of George W. Bush. Views that had been anti-establishment became much more established. After the terrorist attack on the World Trade Center, Bush channeled popular anger into military actions he characterized as a war against an “axis of evil.” Horwitz points out this irony: early neoconservatives emphasized the limitations of government action to change our own society, but later neoconservatives made extravagant claims about the ability of our government to change other societies, such as Iraq. We couldn’t eliminate poverty at home, but a brief military intervention was all that was necessary for democracy to flower abroad. The results of the Iraq war were sobering in that respect.

Although neoconservatism is a much more secular movement than conservative Christianity, they do converge in certain respects:

More deeply, they share a utopian, dogmatic approach to the world: an insistence on the palpable, embodied existence of evil, a tendency to demonize Islam as an inherently violent religion, an unquestioning support of Israel, a hatred of liberals, an insistence on American exceptionalism, a conviction that American power can positively remake the Middle East, and an embrace of military force that reflects reverence for a particular version of masculinity and an impatience with ideas or positions that feel feminine. But these features are anathema to the give and take of democratic politics.

My final post on Horwitz’s book will describe the Tea Party in particular, and then discuss that last point. Anti-establishment conservatism is deeply rooted in our political and religious traditions. But how much power can it acquire before it becomes a danger to itself and to democracy?

Continued