In the context of talking about limits on free speech, it’s common to say that your freedom to swing your fist ends where my nose begins. That seems like a sensible way to think about the freedom of religion case just argued before the Supreme Court: whether employers can be required to pay for contraceptive methods that would violate their religious convictions.
Most disputes about religious freedom are bilateral — with the government on one side and the individual claiming infringement of religious liberty on the other.
But Tuesday’s cases, involving Oklahoma crafts store Hobby Lobby and Pennsylvania cabinetmaker Conestoga Wood, implicate a third party — the companies’ employees, and their rights under the Affordable Care Act to no-added-cost contraception. Respecting the religious claims of Hobby Lobby and Conestoga Wood threatens to diminish the rights of their workers.
Of course, to even get to that point requires addressing the central oddity of the case: the notion that corporations possess religious beliefs. The Citizens United campaign finance ruling was a disgrace, but for all the uproar over the corporations-are-people-too aspect of the case, the notion of a corporate interest in political speech is well-grounded in First Amendment jurisprudence.
The for-profit corporation as religious adherent is another matter entirely. This is not what Congress had in mind in writing the Religious Freedom Restoration Act, the law at the heart of Tuesday’s arguments.
Still, it is possible to imagine a for-profit corporation with an unquestionably religious outlook. At the argument, Justice Samuel Alito, citing a new Danish law, asked about banning kosher or halal butchers on the grounds that their practices are inhumane. I’m skeptical of the religious corporation, but I’ve got to admit: that’s one tough hypothetical.
And in the case before the court, involving family firms, the justices seemed more inclined to look beyond the corporate form. “We can talk about ... how you’d apply these principles to Exxon, but I think that’s just something that’s not going to happen in the real world,” the companies’ lawyer, former Solicitor General Paul Clement, assured the justices.