Bench Memos

More Slate Follies on HHS Mandate Cases

In a very strange Slate essay, David H. Gans (of the Constitutional Accountability Center) imagines that the “near-total silence” of “corporate America” on the question whether for-profit corporations are capable of engaging in an exercise of religion somehow cuts against the claims of Hobby Lobby and Conestoga Wood for religious-liberty protection from the HHS mandate. Gans concludes: “As they look forward to argument in these challenges, the justices may want to remind themselves that this is one constitutional right that corporate America cannot and will not defend.”

A few quick observations:

1. How odd that anyone—much less someone on the Left—would suggest that Supreme Court justices should take their cues from “corporate America.”

2. The unsurprising fact that “corporate America” has no interest in the question is simply further demonstration that the government’s parade of horribles—about the consequences of recognizing that for-profit corporations can engage in an exercise of religion—is illusory. As the amicus brief submitted by my organization, the Ethics and Public Policy Center, points out, only corpora­tions that could demonstrate (1) a corporate adherence (2) to a religious belief (3) that is sincerely held can engage in an exercise of religion. Few if any publicly traded corporations would ever satisfy those requirements. So why would anyone expect them to be filing amicus briefs?

3. Gans repeatedly biases his presentation by asserting that the question involves whether “secular” corporations can exercise religion. But his assumption that all for-profit corporations should be deemed “secular” makes no sense. A nonprofit “religious organization” can operate the same sort of “secular” businesses that a for-profit corporation can operate. Like the Obama administration, Gans can’t explain how it is that a nonprofit religious corporation can exercise religion when it operates a business but that a closely held family corporation operated in accordance with the family’s religious commitments can’t exercise religion when it does the very same thing.

4. Rather than draw the wrong inference from briefs that haven’t been filed, Gans ought to try addressing the compelling arguments for corporate exercise of religion made in amicus briefs like the ones filed by EPPC, by Michael McConnell (on behalf of various booksellers), and by Douglas Laycock (on behalf of religious and civil-liberties organizations).  


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