03/13/2014 11:49 am ET Updated May 13, 2014

Religious Liberty and the Coming Corporate Theocracy

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Later this month, the U.S. Supreme Court will hear oral arguments in a pair of cases concerning Americans' access to birth control. Specifically, the high court will decide whether an employer who has a sincere religious objection to contraceptives can refuse to provide them to employees, even though the Affordable Care Act mandates otherwise.

Birth control is widely used in this country, so how did we get to this point where access to it may be imperiled for millions of Americans under a strange theory of "religious liberty"?

To answer that question, we have to go all the way back to 1990. That's the year the Supreme Court handed down a decision in a case called Employment Division v. Smith. The reaction to that ruling is a tale of good intentions gone awry.

The Smith case dealt with two Native American drug counselors who were fired from their jobs because they had used peyote, a kind of hallucinogenic cactus, in religious rituals. The two argued that they had a right, under the First Amendment's "free exercise" of religion guarantee, to engage in this activity and should not have been punished for it.

The Supreme Court disagreed. Furthermore, the court said religious groups and individuals must abide by generally applicable laws that are on their face neutral -- that is, not aimed at specific religious practices. Justice Antonin Scalia warned that allowing people to pick and choose which laws they would follow on the basis of religion "would be courting anarchy."

Some people thought this went too far. After all, some things religious people want to do are rather harmless and pose no threat to society, such as wearing religious garb or certain types of head coverings (yarmulkes and turbans, for example).

Many organizations from across the political spectrum came together to seek federal legislation that would remedy this problem. After a few years of squabbling, they worked with legislators to produce the Religious Freedom Restoration Act (RFRA). President Bill Clinton signed it into law in 1993.

RFRA requires governments to demonstrate a "compelling state interest" before infringing on anyone's religious liberty and prove that it has employed the "least restrictive" means available to achieve its policy goal.

Most of the advocates for this bill didn't actually want to commit to whether this new law would have protected the drug counselors who got in trouble. Instead people bemoaned that under the high court's more restrictive definition of religious liberty, Muslim firefighters were being denied the right to wear beards in some jurisdictions and historic preservation laws were being used to tell churches they couldn't modify their architecture because of the "historical value" of the original edifice. The purpose of RFRA was to address these types of problems. It was never intended to do the things people are now saying it does, such as give secular corporations the right to meddle in the private medical choices of their employees.

RFRA was declared unconstitutional insofar as it affected state laws in 1997, but it still applies to the federal government. This is the statute that is being cited by the owners of secular businesses, like the craft store chain Hobby Lobby and Conestoga Wood Corporation, which don't want to provide their employees with certain types of contraceptives.

The heads of these companies have religious objections to using artificial birth control, and they argue that those personal views should be transferred to their corporate entity. Essentially, they assert that for-profit companies that are not even remotely engaged in religious activities can nevertheless claim a kind of "corporate conscience" that trumps the individual moral decision-making of their employees.

Many people thought it absurd when the Supreme Court gave a broad panoply of "free speech rights" to corporations in the Citizens United case in 2010. But corporations do "speak" -- that's how they spend $1.5 million dollars on 60-second commercials during the Super Bowl.

But to assert that corporations also have religious freedom rights is to stretch credulity to the breaking point. Who has ever noticed a corporation sitting next to them in a church pew? Does a corporation-made wooden chair robustly sing "Nearer My God To Thee" during Sunday services? Probably not.

Scalia warned of anarchy. I don't often agree with the combative justice, but he was right about that. If the Supreme Court interprets RFRA broadly, it could issue a decision allowing secular businesses to lay claim to the religious freedom rights meant for individuals. If not anarchy, that would certainly spawn a generous amount of chaos.

Let's start with some modest steps down the slippery slope. A business run by a Scientologist could claim exemption from covering mental health counseling from Scientology's nemesis, the psychiatric profession. How about Jehovah's Witness-owned corporations bowing out of coverage for surgeries because so many of them require use of whole blood products prohibited for use by members of that church?

More examples: Some Christians adhere to the doctrine that "For a husband is the head of his wife as Christ is the head of the church." (Ephesians 5:23). Let's say your boss takes this literally. Can he reject the thesis of the Equal Pay Act because that would deny him the ability to pay men -- more likely to be or become husbands in charge of the family -- more than women?

How about those fundamentalists who adhere to prohibitions against eating pork and shellfish found in the Book of Leviticus? Can they demand that employees sign agreements that even off the job site they will limit themselves to red meat and poultry?

It is very difficult to imagine how courts could draw the line between failing to provide contraceptive services (viewed as a mandated service in the Affordable Care Act) and running their companies along their other biblically complicit strictures.

But it gets even worse. Much ink was spilled commenting on a recent bill in Arizona that many say would have given religious fundamentalists who own businesses the right to deny services to LGBTQ people. Gov. Jan Brewer vetoed the measure, but versions of it have appeared in other states.

The justifiable fear by non-Christian religious minorities, non-theists and members of the LGBTQ community was that this would create a gigantic loophole in local public accommodation statutes so that a hotel owner, restaurant owner, etc. could refuse to allow certain members of the public to eat at Joe's Diner or stay at the Honeymoon Haven Hotel. It would have been a backdoor to a kind of "Jim Crow 2.0," allowing discrimination based on religious beliefs.

Lest one believe this result "unthinkable," remember that in the 1960s, some fundamentalist pastors in the Deep South preached separation of the races as a God-ordained plan. (After all, Genesis 1:4 says God separated the light from the dark.)

Arizona's bill died, but some state legislators are holding off until they see the result in the Hobby Lobby case. If the justices uphold the demanded exemption from contraceptive coverage, state politicos will find it dazzlingly simple to justify allowing all businesses to make judgments on religious beliefs, doctrinal or idiosyncratic. Religion will then trump all but the most gigantic of governmental interests.

So, anarchy could be coming to your neighborhood soon -- and it will all start with birth control restrictions. On second thought, it could be worse than anarchy. If giant corporations win the right to void participation in all laws with which they disagree merely by adopting a religious patina, the result will be something worse.

In these times when it is so difficult to determine where governmental power and corporate potency separate, maybe an exercise in corporate theology would lead to something other than anarchy -- a thing called "theocracy."

Barry W. Lynn is executive director of Americans United for Separation of Church and State in Washington, D.C.