THE BLOG
07/01/2014 09:53 am ET Updated Aug 31, 2014

Hobby Lobby -- Church and State Both Win; Court Refuses Notion That Public Corporation Is a Person With Religious Rights

Court rules against broad faith-based exemptions from general laws; Hobby Lobby does not result in a newly-minted personal right for for-profit, publicly-traded corporations.

The Hobby Lobby decision -- being modest and narrow in scope -- saved the Church and the State from what could have been the ill consequences of over-broad and un-nuanced advocacy on the part some of the Church's counsel and some academic voices who have the unhappy tendency to mis-portray any refusal to have the public law perfectly coincide with a particular church's policy view as a threat to religious freedom.

It's not.

Not every faith adheres to the same doctrine or how that doctrine implicates public policy. So when the Court rejected, as it did in Hobby Lobby, overly-broad claims of religious freedom by the Church that got accommodated by public law to a point, but not as far as it would have liked, the Court is actually preserving religious freedom as the freedom to advocate a point of view and not a guarantee that the point of view will always be accepted as the proper conception of public law.

Closely-held, for-profits allowed exemption but the Court is explicit that its narrow ruling merely allows an individual who adopts corporate form for tax and other reasons to have the individual owner's religious freedom right observed.

Moreover, Justice Alito's majority, and Justice Kennedy's concurrence emphasize that for-profit, publicly traded corporations are not covered by the Court's narrowly articulated formulation protecting an individual's right to freely exercise even thought that individual is now in corporate form.

This is very close to how this author predicted the outcome months ago following the oral argument.
As I wrote for the Huffington Blog then:

"For-profit [publicly-traded] private corporations have never been held, nor should they be held, to be entitled to assert the free exercise of religion which is quintessentially an individual right under our Constitution. The confusion exhibited by the Supreme Court in its questioning of the Hobby lobby Corporation, a for-profit hobby kit maker, more than illustrates the overstated nature of attempting to articulate a corporate free exercise right."

Once again, the U.S. Supreme Court's sensitivity to religious freedom claims -- even unusual ones like Hobby Lobby -- illustrates how much the U.S. is to be admired for its embrace of religious accommodation, and its unwillingness to accept an unnecessary stripping of the public square of religious influence or reference.

The difference between the United States and say, the so-called "Arab Spring" nations is that our Justices have been able to draw a defensible line that both acknowledges the significance of religious freedom to a well-structured democracy, while not allowing the holders of particular religious beliefs to embed their own personal conceptions of good behavior into the law. There is no need to have the equivalent of Sharia given preference under the law, Yes, Hobby Lobby is protected as a corporation, but only because it is a closely-held private corporation and for all intents and purposes is a mere alter ego of its owners in terms of religious perspective.

So too, this decision is more accommodating of freely-chosen religious belief than the EU's refusal to acknowledge in it charter document the significant relationship between human right and its point of origin in a transcendent Creator. Individual member states in the EU do give an acknowledgement closer to that of the U.S., e.g., Malta's reference in its constitution to a preference for Roman Catholicism, but confusion can exist over what that requires.

The American formulation is clear:

1. As a statement of first principle, human rights are not privileges from man, but endowments from a transcendent source;

2. Who or what the transcendent source is, is a matter of individual freedom;

3. No government program, however well intended - including the Affordable Care Act - can coerce individuals (whether acting individually or for tax and regulatory purposes in private, closely held entities) to abandon their understanding of what religion requires;

4. Neither the states nor the federal government is obligated by the First Amendment, however, to accommodate religious practices against the requirements of generally applicable laws;

5. Congress may choose to have the federal Congress be more accommodating of religious belief vis-à-vis federal statutes (but not vis a vis state statues, because the states cannot be coerced to be more protective of religious belief and practice than the Constitution, itself, requires.

This is a win-win victory for religious freedom in both of its senses: the freedom of the Church to urge a public policy based on its unique doctrine (e.g., the Catholic teaching on contraception that it severs the bond between the unitive and procreative aspects of marriage; and the freedom of the body politic, acting through duly elected representative, to turn down the advocacy of the Church without that in any way diminishing the rights of the Church or her believers.

Bottom line: religious freedom does not mean always accommodating a particular religious point of view. To think otherwise is confusion.

That confusion, as Justice Alito reveals, need not exist. The Congress and the states can give even the additional nod toward religious freedom desired by Hobby Lobby without that establishing (in the senses of coercing) someone to believe as Hobby Lobby does. That said, the general laws do not depend upon the Constitution being given a Catholic gloss to be valid.

In this case, the laws of Congress can be construed to give, as they arguably have been so construed to give under RFRA, to give some special protections for religion that individual states have not.

Finally, to be precise, again, as I pointed out to HuffPost readers months ago, at issue in the Hobby Lobby case was the claimed application of the Religious Freedom Restoration Act (RFRA). For the reasons outlined in the Court's Hobby Lobby opinion, the Supreme Court has NOT held that a publicly-traded corporation are not persons with religious freedom rights, and the Supreme Court soundly rejected the notion that RFRA has any application to a publicly-traded company; but erring on the side of religious liberty, Hobby lobby's owner -- even in his limited form of corporation need explain -- need not subordinate his faith.

The Catholic Church in America ought to be applauding the balance exhibited by Justice Alito in his opinion for the Court. The opinion is a real victory for the Catholic Church's litigated assertion to be free of an imposed obligation to distribute contraception; while at the same time the opinion is a real victory for those who dissent from the Church's teaching on contraception.

In rejecting the Church's sometimes overbroad and un-nuanced claim for special privilege, the Court has preserved religious freedom and saved an over-broad conception of that freedom from destabilizing itself.