THR Blog   /   July 23, 2014

And Who Is a Person? The Problem with Hobby Lobby (Part II)

In my previous post, I suggested that the Supreme Court’s move to extend religious protections to closely held companies by expanding the concept of corporate personhood was both novel and open to contestation. That it is novel is a point for legal historians to decide; that it is open to contestation is, on a basic level, undeniable. My argument, however, was this: As a matter of first principles, if personhood is recognized through encounter rather than ascribed through identification of capacities or the sheer will of an individual, then describing Hobby Lobby as a person in any recognizable sense of the term requires us to give full and detailed first-hand accounts of who it is we encounter when we encounter Hobby Lobby.

Hobby LobbyOf course, we can retrospectively give an account of the constitutive features of the person we have encountered. And I realize that the court does not hold the view that “natural” persons and “corporate” persons are synonymous. However, the phenomenology of encounter obliges us to think more carefully about the threshold question regarding the extension of first amendment religious protections. What is it that we encounter in Hobby Lobby? And how does a flat but universally applied concept of corporate personhood comport with our experience? The “useful fiction” of corporate personhood is often very useful. But how do we know when it oversteps its utility?

I concluded with a promissory note regarding the Wheaton College v. Burwell order that came down days after Hobby Lobby. In this post, I will recount the details of that ruling and register two basic concerns, one regarding Wheaton’s substantive claim—that it would be complicit in moral evil by alerting its insurance provider of its exemption claim—and one returning to the question of corporate personhood.

Wheaton College v. Burwell

What was the Wheaton decision and how does it relate to the broader question of religious liberty claims after Hobby Lobby? The facts of the case are as follows. Located in Illinois, Wheaton College is one of the nation’s oldest and most prestigious evangelical universities. Wheaton’s original complaint came in two parts. First, like Hobby Lobby, Wheaton requested to be exempted from providing coverage for the four contraceptive treatments and devices they take to be abortifacients. But in a second step that goes beyond Hobby Lobby, Wheaton argued that signing the government ordered form (EBSA Form 700) intended to convey this request and sending it to its insurance provider was functionally equivalent to providing the contraceptives themselves. The reasoning here was that the act of signing the EBSA Form 700 was a “trigger” that sealed a contractual relationship between the college and the insurance provider, according to which each party knew full well that the full panoply of contraceptive services would be provided to Wheaton’s employees and students. Moreover, although Wheaton would be formally exempt from payment for such services, Wheaton argued that there “is no way to ensure that the cost of administering the contraceptive and abortifacient services would not be passed on to religious organizations through the third party administrator’s fees.” This, Wheaton argued, constituted a governmental “shell-game” that made Wheaton complicit in “grave moral evil,” and, as such, substantially burdens Wheaton College’s religious freedoms.

By requesting a less burdensome route in their injunction request, Wheaton shifted their tactics slightly. Whereas much of the rhetoric of Wheaton’s original complaint was focused on the constitutionality of what is called the “Final Mandate” itself, here Wheaton was pushing the court to clarify the “least-restrictive” standard it had preferred in Hobby Lobby. After Hobby Lobby, was the court going to entertain further claims for exemption when employers argued that being involved in the “existing, recognized, workable, and already-implemented framework” for providing coverage made them complicit in moral evil?

In an unsigned, four-paragraph opinion that drew a scathing dissent from Justice Sonia Sotomayor, the court ruled in Wheaton’s favor. Further, the court appeared satisfied that the government was aware of Wheaton's exemption and that the college need not fill out the one-page EBSA form and send it to their insurance provider—in other words, Wheaton could also be exempted from alerting the insurance provider or third party adminstrator (TPA) of their exempt status. As Justice Sotomayor argued in her dissent, this appears to create further governmental bureaucracy with no apparent limiting principle.

Wheaton and Complicity

So what are we to make of the Wheaton ruling and its likely implications for our ongoing debate about religious liberty and religious institutions in American public life?

The first thing to say is that Wheaton’s position runs counter to the best intuitions of evangelical thinking on bioethical matters. As Molly Worthen’s recent work, Apostles of Reason: The Crisis of Authority in American Evangelicalism rightly notes, one of the defining features of evangelicalism is precisely what it lacks—namely, an overarching authority structure capable of issuing authoritative statements on matters of ethical or doctrinal concern. Lacking the magisterium of the Roman Catholic Church, evangelicalism in America has always been a diffuse network (or network of networks) of church leaders, publication houses, institutions of higher learning, and para-church organizations. Accordingly, in bioethical matters, and on the question of the morality of contraception in particular, it has been up to individual denominations and Christian ethicists to render their own judgments.

This emphasis is not accidental because evangelicalism has often considered the individual before God not just the subject of moral change (as in conversion) but also the primary moral agent (as in ethics). As such, the relation of evangelical leaders to their congregations and circles of influence is characterized by counsel, teaching and persuasion, rather than a fixed and rigid binding of the conscience.

Consider, for example, the findings of an important but now little known gathering of Protestant evangelicals in August of 1968. In an event co-sponsored by the Christian Medical Society and the editors of Christianity Today (most notably, Carl F.H. Henry), numerous medical professionals, legal scholars, and theologians came together in order “to seek to establish moral guidelines for decisions which will be medically sound, rooted in a biblical ethic and which will be of pragmatic value to the practicing physician and minister.”

In their deliberations, these evangelical theologians were consciously seeking to chart a course for evangelical Protestants between two schools of theology very much alive at the time. One the one hand, a strong doctrine of natural law was on the ascendency within the Roman Catholic Church, coming to full flower in Pope Paul VI’s declaration in Humanae Vitae, that, in order to observe the norms of natural law, “each and every marriage act must remain open to the transmission of life.” When published in the late summer of 1968, Humanae Vitae would not only solidify the Roman Catholic position that any and all artificial means of contraception were intrinsically immoral but also the grounds upon which this claim is justified—namely, the “natural” ends of marital sexual intercourse. On the other hand, however, was the so-called “new morality” that was often associated with the work of liberal Christian ethicists like Joseph Fletcher and John A.T. Robinson and referred to as “situation ethics.” For Fletcher and others, the particular injunctions and rules emerging from Christian scripture are, to put it plainly, revisable in light of an overarching concept of agape, or Christian love. Rules that apply equally in all cases—an absolute prohibition against lying, for example—are, on Fletcher’s reckoning, but “illuminative maxims,” subject to a basic cost/benefit analysis wherein the question of what is most in accordance with love is primary.

Against each of these options, these evangelicals pursued norms capable of guiding conduct. And, as ever, they derived these norms from the scriptural witness. In the record of their gathering, published as Birth Control and the Christian in 1968, we find “A Protestant Affirmation of the Control of Human Reproduction” that makes this much clear. In a subsection titled “Christian Conscience, Natural Law, and Legal Authority” we read:

"The Scriptures inform us that all men are bound by God’s moral law. To this fact, the universal phenomenon of conscience bears witness. Because of sin, men are severely limited in their ability to perceive the content of this law. Apart from the guidance of Scripture and the Holy Spirit, men tend to equate it with the mores of their particular culture. Nor do we believe that ethical judgments can be based on the situation alone. While the individual must consider the circumstances present in each situation, his ethical decision should be controlled by biblical principles."

Placed next to Wheaton’s request for injunction, what is striking about this affirmation is its epistemic humility and rhetorical restraint. Principles like the “sanctity of family life,” the “mitigation of the effects of evil,” and the “preservation of God-Given Life” are present, to be sure, but the line between recommendation and prescription is always held intact. This is often referred to as the path between “legalism” and “license,” a path evangelicals often pursue by insisting that each and every individual stands before God, responsible for his or her actions, and his or her actions alone. Ever wary of unduly burdening the consciences of their flocks, these evangelical leaders were providing biblical counsel, surely, but always charting a middle path between the perceived flimsiness of the situationists and authoritarianism of the Roman Church.

Granted, much has changed since 1968. If there was a time, as the noted historian of American religion Martin Marty put it, when evangelicalism could at once be “cognitive minority” and “socio-cultural majority,” that time has most certainly passed. Moreover, with respect to medical technologies, the emergence of all kinds of assisted reproductive technologies (ART) that sever what Christians have long held as the “unitive” and “procreative” goods of sexual union has caused profound shifts in our common reproductive social imaginary. What is now routine—say, pre-implantation genetic diagnosis—was merely the stuff of science fiction at the time.

But as is evident in Wheaton’s requesting of this emergency injunction, much has changed within Protestant medical ethics as well. As I see it, the quest for what the Princeton ethicist Paul Ramsey called “middle-axioms” that could guide faithful action precisely by respecting the distance between theological proclamations and individual points of decision has manifestly failed. In fact, it is very difficult to read the aforementioned “Protestant Affirmation” that was formulated under Carl Henry’s auspices, and not ask: What understanding of complicity causes Wheaton College’s leadership to consider themselves morally responsible for the contraceptives their employees and students may or may not make use of in the first place? And even more to the point, does not the distinction between submitting EBSA 700 to their insurance provider and alerting the government through some other means strike us all as the paradigmatic case of scrupulousness?

There is also a civic rationale for Wheaton to be more forthcoming. An increasing number of American citizens may come to view all religious liberty claims as either insincere attempts at self-protection or concerted efforts to rule society from the margins unless there is fuller disclosure of what Richard Rorty called our “final vocabularies,” particularly from religious organizations. This means that in addition to meeting the court’s rather low requirement that religious positions be “sincerely held,” Wheaton’s willingness to give a full and public account of its moral and theological reasoning on this matter would be a great contribution to our ongoing debate regarding religion in public life. In a world as pluralistic as ours, is this not the least Wheaton (and other organizations) owes?

Whither Religious Liberty?

My second concern is more prospective and cautionary—and therefore tentative.

In my observation, most of the current writing on religious liberty is characterized by generalization and worry. For those who hold some version of the view that “religious liberty is under attack”—and I am certain we will see more of this with the recent presidential executive order regarding federal contractors—one struggles to find references to major cases wherein religious protections have recently been extended, as in the 9–0 decision affirming the constitutionality of the “ministerial exception” rendered in Hosanna-Tabor v. EEOC in 2012. From the other side, there is a noted uptick in the thinly veiled contempt for religious belief that generates either mockery or absurd overstatement. These diatribes may be useful for raising funds or increasing internet traffic, but they rarely comport with the facts. Rather, what they convey is a crisis of confidence in our capacity for self-governance.

What is needed is widespread recognition that religious liberty is not a concept that admits easy generalization. It is, rather, a site of contestation, a concept with an intellectual history that cannot be divorced from the justificatory role it has played, particularly in jurisprudential settings where it has been developed. This much is manifestly true.

The basic question posed to each side is this: Is it possible that the current expansion of liberties and protections comes at the cost of a unitary concept of corporate personhood that could, at a later point, cut the other way? While the order granting Wheaton’s injunction request did not deal with Wheaton’s assertion that it was being treated as “second-class” religious institution because it was not directly tied to an ecclesial body, it is clear that the litigation regarding religious exemptions is shifting toward the myriad nontraditional (that is, nonecclesiastical) institutions that make up the American religious landscape. Para-church ministries, faith-based nonprofits, and now, post–Hobby Lobby, some closely held for-profits will all seek status under the umbrella concept of corporate personhood recently expanded.

But could we not envision a future in which the same legal construct provokes so much public disfavor that it is used to constrict rather than expand protections? Take, for example, a scenario in which the ministerial exception solidified in Hosanna-Tabor is combined with the expanded notion of corporate personhood from Hobby Lobby and applied to employment law. Given that entities like Hobby Lobby are now granted first amendment protections on the grounds that they are not too dissimilar from religious nonprofits, must they now characterize their employees as "ministers" in order to be protected from employment discrimination claims? While the majority addressed this line of thought in Hobby Lobby, it is clear that these types of suits are forthcoming.

Does this not call for a better concept of corporate personhood that would allow us to differentiate between various types of entities and religious liberty claims?  For all its immense power, the credibility of the court depends, on some level, on its capacity to persuade a sufficient portion of the populace that its rulings are not conclusions in search of justification.  To do this, it should unveil both the internal rationality of the steps it has taken in arriving at a judgment and the contours of the concepts it uses in doing so.  And for their part, religious organizations of all kinds should take up the task of doing more (and not less) to unveil their basic beliefs to the public at large. Barring this, intractable conflict seems to be our fate.

Philip Lorish is a dissertation fellow of the Institute for Advanced Studies in Culture and a doctoral candidate in the University of Virginia’s Department of Religious Studies.

Political cartoon: Adam Zyglis, The Buffalo News, March 31, 2014; used by permission.