Religious freedom used to mean that religion was none of the government’s business. Now it is being changed to mean that religion is none of your business.
Pundits such as law professor Adam Winkler insist that the Supreme Court should rule against the Hahn and Green families and their businesses in next week’s Obamacare cases. Their theory is that if you engage in business, religion is not “essential” to your work. Instead, you can pursue only “profit.”
No Supreme Court case says that when a family engages in business, it cannot also pursue its religious beliefs. Instead, whenever the high court gets close to this question, it repeatedly rules that groups such as Jewish merchants and Amish farmers exercise religion while simultaneously pursuing profit, and that they can therefore bring religious-freedom claims. This doesn’t mean that the businesses always win their claims, but it does mean that religion can be exercised in business.
Winkler has to reach back some 200 years to find an authority, Supreme Court Chief Justice John Marshall, to bolster his view. Marshall wrote that corporations “possesses only those properties which the charter of its creation confers upon it either expressly or as incidental to its very existence.” Businesses, in other words, can pursue only the purposes they are created to pursue, and none other. That may be an interesting academic idea, but legally it is dead. By the early part of the 20th century, state laws universally authorized businesses to pursue any lawful purpose. The government’s involvement in the creation of businesses also became a mere administrative action that affirms the fact that, in a business, real people are simply coming together to engage in collective activity.
It’s also not true legally or factually that businesses can and must pursue only profit. Numerous businesses today — Apple and Whole Foods come to mind — openly speak of their values-driven endeavors. The people who run such businesses do not check those principles at the office door on Monday morning when they try to earn a living. Winkler and the government’s other advocates cite no source for the idea that a business categorically cannot include faith-based goals alongside profit, or sometimes even instead of profit (such as when a business loses revenue by closing on Sunday).
But if we’re going to cite long-dead authorities instead of modern business law, consider one of the earliest American examples: the British Crown’s granting of the First Charter of Virginia to the Virginia Company. What were the Virginia Company’s official purposes? To “dig, mine, and search for all Manner of Mines of Gold, Silver, and Copper” and “to have and enjoy” the same, but also to “propagat[e] Christian Religion to such People, as yet live in Darkness and miserable Ignorance of the true Knowledge and Worship of God.”
So a company can pursue both “gold” and “religion” at the same time, and that’s been true since companies existed on this continent. But somehow today, when all business laws explicitly allow the pursuit of all lawful purposes, we’re supposed to believe that family businesses cannot pursue religion.
Law doesn’t exclude religion from family businesses. Religion is excluded by secular hostility devoid of legal authority, and by a federal government willing to bulldoze any obstacle — even constitutionally protected freedoms — if it stands between the government and intimate control over our everyday activities.
— Matt Bowman is senior legal counsel with Alliance Defending Freedom, which represents several clients in lawsuits against the Obama administration’s abortion-pill mandate.