Monday, November 25, 2013

Religious Freedom for Business Corporations?

Tomorrow (Tuesday) the Supreme Court will decide whether to hear one or more of four petitions for certiorari asking the Court to rule on whether corporations have a right to deny insurance coverage for their employees, for preventive health care measures, to which the corporations have objections based on religion. These objections and the claimed right to religious freedom, are said to belong to the corporations themselves, or only to their proprietors. Most of the claims arise under a federal statute, the Religious Freedom Restoration Act, which narrows the scope of Court-established doctrine that religious institutions are obliged to obey neutral laws of general applicability. The statute applies to "persons," and the Tenth Circuit Court of Appeals, in the Hobby Lobby Stores case, found in favor of the claim. If corporations have First Amendment rights to political speech, it was difficult for the court to see why they might not have other First Amendment rights. Indeed. One of the petitions renews broad Commerce Clause challenges to the misnamsed Affordable Care Act that have already been rejected, and it seems unlikely that the Court would hear them again, but it seems all but certain that the Court will hear one or more of the religious-freedom claims, as the Circuit Courts are divided and these are certainly important disputes to resolve. 

What would Holmes say? Well, Citizens United is now the law, so there is no going back on that path. But he would likely consult the common law, the ultimate source of corporate personhood in our constitutional law. In his opinions for the Massachusetts Supreme Judicial Court and in his scholarly writings he held that newspapers (and presumably other news organizations not then imagined) had a qualified privilege to publish statements that might injure a person's reputation, because of the overall benefit to society of a free exchange of information and ideas. The Supreme Court has followed the rough outlines of Holmes's reasoning in defamation cases, and it seems a reasonable way of distinguishing First Amendment rights. There is a benefit to society from allowing enterprises as well as individuals to express themselves--freedom of the press belongs to the enterprise that owns own--but it is difficult to see why business enterprises should be freed from the obligation to obey laws of general applicability. Aside from the absurdity of corporations becoming Christian Scientists and refusing to provide health insurance at all, there is the blunt fact that corporations do not have consciences or freedom of conscience, and cannot generally follow religious practices, any more than they can vote. When you form a corporation you do so partly because it shields you from liability for the corporation's acts, and in exchange you accept the reality that the corporation must be guided by business practices to which religious objections might be raised, such as borrowing and lending money at interest.

These petitions bring to mind another point that might help to bring clarity to the larger contest over Obamacare. The Affordable Care Act is primarily a regulation of the national insurance market, and not of health care. Like earlier legislation governing doctors and hospitals, it affects health care only indirectly by setting conditions for reimbursement.  As Governor Romney reminded us during the last campaign, everyone in the United States has a form of health insurance, because Congress in its wisdom, exercising the taxing and spending power, provides that hospitals receiving federal funds must keep their emergency rooms open to everyone. The Affordable Care Act reforms that insurance system, and requires everyone to pay a suitable premium for the insurance they receive. Holmes was one of the early proponents of social insurance, which allows the community as a whole to bear the burden of unforeseen expenses when an individual is injured. Does anyone really have a problem with that?