The first thing to understand about debates over corporate religious freedom is that familiar public arguments should not be taken at face value. In Burwell v. Hobby Lobby, the Supreme Court ruled that the term “person” in a statute called the Religious Freedom Restoration Act (RFRA) could include a for-profit corporation such as Hobby Lobby. Critics, including dissenting Justice Ruth Bader Ginsburg, denounced this ruling as “radical.” Religious freedom is for human beings, they argued, not for corporations. Upon examination, though, the familiar criticisms crumble: they go against well-established legal understandings, or misrepresent the nature of religion (and business), or they turn out to have little to do with a party’s corporate status.
Something else must be going on. The question of corporate religious freedom has become controversial, I will suggest, mostly because it has become entangled in a series of larger questions – questions about contraception, sexual morality, and religious freedom as a general proposition and, ultimately, about the character of American community. Some objections to religious freedom rights for business corporations focus on their status as corporations; others emphasize their character as businesses. I consider these arguments in turn.
The Religious Rights of Corporations
First, corporations. Rights, we might suppose, belong to persons – to human beings. In legal parlance, however, “persons” can be “natural” (human beings) or “artificial” (i.e., legal constructions such as corporations). For example, the clause in the Fourteenth Amendment prohibiting states from depriving any “person” of life, liberty, or property without due process of law has often been interpreted as including corporations in its protections.
Consider a decision generally revered by progressives: New York Times Company v. Sullivan, which used the First Amendment’s free speech clause to protect the newspaper against a defamation suit. The New York Times Company is not a “natural person” but rather a corporation. Does anyone criticize the decision as “radical” with the argument that “free speech rights protect persons, not corporations”?
In the statutory context the question is even more clear-cut. That is because the federal Dictionary Act expressly provides that when used in federal statutes, the term “persons” includes “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals,” unless the context indicates otherwise. Nothing in the legislative history of RFRA reveals any congressional intention to use the term “persons” other than in its usual statutory sense.
Critics often argue that corporations are simply not the kind of entity that can exercise religion. Human beings believe, pray, go to church; corporations do not. The point may be correct, but it provokes a commonsensical response: as in so many other legal contexts, the right recognized in a case like Hobby Lobby is calculated to benefit not some abstract entity – the “corporation” – but rather the human beings who use the corporate form to further their purposes (including, in some instances, their religious purposes). Consider again New York Times Company v. Sullivan. The Supreme Court extended free speech protection to the corporation not because there is some mystical corporate entity that deserves this dignity but because the company is a legal construct under which human beings – writers, editors, advertisers, readers – communicate with each other. The company exercises the right on behalf of the human beings it serves.
In the same way, Hobby Lobby is a corporation owned and managed by committed Christians – David and Barbara Green and their three children – who in corporate documents and policies have made perfectly clear their purpose of operating a business in accordance with Christian principles. One of those principles is respect for the Sabbath day. At a loss of millions of dollars, therefore, Hobby Lobby stores do not open on Sundays. Another principle is opposition to abortion. Although not opposed to contraception per se, therefore, the Greens object to subsidizing particular contraceptives that they regard as abortifacients. And just as in New York Times the Court was protecting the speech rights of the human beings served by the company, in Hobby Lobby the Court was protecting the religious freedom right of human beings – namely, the Greens, who do believe and worship and pray.
Indeed, even critics of the Hobby Lobby decision typically have no problem with extending the protections of RFRA to some corporations – namely, to churches, which are often organized in corporate form. Thus, just a few years earlier, in Gonzales v. O Centro Espírita, the Court had unanimously ruled that RFRA protected a Brazil-based church that believed in using a drug (hoasca) that was on the government’s list of forbidden substances. As it happens, the church in O Centro Espírita was organized as a corporation. No one objected to this fact, or even bothered to point it out.
So it seems the real objection cannot be that corporate status in itself somehow deprives a party of rights to religious freedom. All of the talk about how “rights belong to persons, not corporations,” or about how “human beings believe and pray but corporations don’t,” seems to be mere obfuscation. The real objection, it seems, is not that an entity like Hobby Lobby is a corporation, but rather that it is a business. Some corporations (e.g. churches) may claim rights to religious freedom; it is business corporations that cannot enjoy any such right. But why not? Sometimes the critics seem to be making a point about religion; at other times they again seem to be making a point about corporations.
The first objection suggests that the pursuit of profit is somehow incompatible with “religion.” But the notion that religious believers separate their religious commitments from the pursuits of mundane matters simply misrepresents religion. Many faiths and many believers think just the opposite: it is wrong, or even impossible, to segregate faith from everyday pursuits. Thus, in perhaps the most familiar of all religious prayers, believers address Deity and implore that “Thy will be done,” and then request divine assistance in, among other things, obtaining their “daily bread.” In this prayer, mundane and utilitarian purposes are thoroughly intermixed with more spiritual or “religious” ones.
Moreover, even if the posited cleavage between living one’s religion and doing business were plausible, the objection would have nothing to do with questions of corporate form. It would apply equally to the lone business person pursuing profits in his or her personal capacity.
Attempting to keep the argument focused on corporations, some critics suggest that even if a human being can integrate earning a living with honoring religious obligations, a corporation cannot multi-task in this way: once a corporation chooses to pursue profits, profit-making must thereafter become its sole purpose. But this position is starkly at odds with both current law and contemporary thinking about the purpose and obligations of business corporations. The law does not require that business corporations be solely devoted to profit-making to the exclusion of other concerns. And the school of thought often described as “Corporate Social Responsibility” insists that corporations not only may but should be guided by ethical considerations that go beyond “the bottom line.”
Hence, corporations today often adopt ethical commitments in their charters or policies, and forego potentially profitable opportunities to honor these commitments. They refrain from activities that would pollute the environment, for example, or that would exploit vulnerable populations. There is no reason at all why such purposes and constraints could not reflect religious commitments. Not only is this a possibility; as in the old joke about baptism by immersion, we’ve seen it done—often. Thus, a corporation like Hobby Lobby manifestly does have such commitments.
Corporate Religious Freedom amid the Culture Wars
In sum, typical arguments against corporate religious freedom flatly conflict with conventional legal understandings, or distort the nature of both religion and business, or have nothing to do with the corporate form at all. So what then is going on?
When the statute at the center of Hobby Lobby – RFRA – was enacted in 1993, it enjoyed broad political support from groups from the ACLU to the National Council of Churches, and it was passed with nearly unanimous support in both houses of Congress. In signing the statute, President Bill Clinton delivered an eloquent address praising religious freedom as “perhaps the most precious of all American liberties.” By the time of Hobby Lobby, however, the cultural climate had changed, drastically. This change was manifest in the virulent reaction in 2015 to the enactment in Indiana of a statute virtually identical in its substance to RFRA. A commitment to religious freedom that nearly everyone had enthusiastically supported in 1993 now triggered passionate opposition from politicians, pundits, CEOs, late night entertainers, athletic associations, and of course academics.
Exactly what produced this change is no doubt a complex question. But the change was clearly part of the broader conflict often described as the “culture wars.” The term was given contemporary prominence by a prescient book of that title by the sociologist James Davison Hunter, published in 1991. Hunter found that across a variety of issues, Americans were coalescing into two contending camps, which he labeled “orthodox” and “progressive.” This conflict, Hunter suggested, was not confined to merely private disagreements; it was a struggle, as he put it, to “define America.”
The orthodox party’s conception of American community hearkens back to the national self-understanding reflected in the “civil religion” described in the 1960s and 70s in Robert Bellah’s influential writings. Until relatively recently, Bellah explained, “[Americans] saw themselves as being a ‘people’ in the classical and biblical sense of the word.” They understood themselves with “reference to a suprapolitical sovereignty, to a God who stands above the nation and whose ends are standards by which to judge the nation and indeed only in terms of which the nation’s existence is justified.” By contrast, the “progressive” party rejects the biblical conception of America in favor of a more secular understanding.
Both the orthodox and progressive parties instinctively appreciate the central point of Benedict Anderson’s book Imagined Communities. Anderson explains that communities are not physical facts, but rather are constructed, or “imagined” entities. And the imaginings that construct a community arise around public symbols. Symbols, in other words, do not merely express a community; they help to constitute it. Consequently, as Hunter observed, each side in the culture wars “struggles to monopolize the symbols of legitimacy.”
These observations help to illuminate the debates in a case like Hobby Lobby. After all, two especially powerful symbolic embodiments of the older, biblical conception of the American community were its official legal norms of sexuality and its traditional commitment to religious freedom. So it is hardly surprising that these would be central targets of progressive efforts to recast the conception of American community.
Thus, at least as late as the 1950s, American law reflected a traditionally biblical view of sexual morality. Fornication was a criminal offense in all but ten states, adultery in all but five, sodomy in all fifty states. Seduction was both a tort and a crime. The distribution of contraceptives was forbidden in most places. The fact that these laws were retained even though they were almost never enforced underscored their primarily symbolic function. To the progressive party, conversely, that symbolism is alienating and offensive. Over the past half-century, accordingly, all of the traditional legal norms have been subjected to sustained challenge, as constitutional and statutory law has aggressively replaced them with the progressive norms of the so-called Sexual Revolution.
Both practically and symbolically, contraception has been central to that Revolution. So it is not surprising that contraception has been at the center of progressive legal efforts “to monopolize the symbols of legitimacy.” Nor is it surprising that challenges to this newer pro-contraception regime, like Hobby Lobby’s, evoke especially intense opposition.
More generally, though, the traditional American commitment to religious freedom itself has been a central constitutive symbol of the commitment to “One nation, under God.” Thus, James Madison’s justification for religious freedom, offered in his celebrated Memorial and Remonstrance against Religious Assessments, emphasized that our duties to “our Creator” are prior in time and importance to any duties we may assume to civil society and government. In his seminal Virginia Statute for Religious Freedom, Thomas Jefferson justified the commitment by declaring that “Almighty God hath created the mind free” and that coercing people in matters of religion was “contrary to the plan of the holy Author of our religion.” As Bellah discerned, both men conceived of the nation as subject to a transcendent authority – the “Creator,” or “Almighty God.” And that conception was the premise for their commitment to freedom of religion.
But as the traditional and “orthodox” conception of “one nation, under God” has come to be rejected in favor of a more secular and “progressive” understanding, the commitment to religious freedom has been aggressively challenged as well. That challenge is by now far advanced in the academy, and in the culture generally. Once again, the reaction to the Indiana laws and to similar measures in Arizona, Georgia, and elsewhere attest to this fact. So does the intense criticism of the Hobby Lobby decision.
In Hobby Lobby, in short, the specific issue of corporate religious freedom was caught up in a more general struggle over religious freedom itself, which is itself merely one theater in a broader cultural and political war to “define America.” In such fundamental struggles, combatants (on both sides) will instinctively resort to any political, legal, or rhetorical resources that may serve their purposes. I do not mean to suggest that the advocates in these conflicts are being merely opportunistic, or cynical. They will often be true believers. Convinced of the rightness of their conception of the American community, they will naturally embrace claims and arguments that resonate with and support that conception.
Passionate but dubious arguments over “corporate religious liberty” become understandable when viewed in this context. What drives the arguments, in sum, is not actually any cogent or consistent concern about the corporate form per se, but rather a deeper opposition to religious freedom as a symbolically constitutive constitutional commitment.
Steven D. Smith is a Warren Distinguished Professor of Law at the University of San Diego. His books include Pagans and Christians in the City: Culture Wars from the Tiber to the Potomac (Eeerdmans 2018) and The Rise and Decline of American Religious Freedom (Harvard 2014). This essay is an adaptation of “Corporate Religious Liberty and the Culture Wars,” first published in The Cambridge Companion to the First Amendment and Religious Liberty, edited by Michael D. Breidenbach and Owen Anderson, Copyright © 2020 Cambridge University Press.