The Rotten Core at the Heart of Religious Freedom Laws

My previous post on corporate personhood ended by asking for a principled reason why we should protect the “religious freedom” of religiously-affiliated nonprofit corporations such as Wheaton College but not for-profit corporations such as Hobby Lobby and Conestoga Wood.

In her essay at The Immanent Frame, “The Impossibility of Religious Freedom,” Winnifred Fallers Sullivan puts this question more bracingly:

Why should churches and religious orders be obviously and unproblematically exempt, particularly in the aftermath of a series of sexual and financial scandals, while Hobby Lobby is not? Why disdain the representations of the Greens and the Hahns that they consider their businesses to be a religious ministry? Where is it written in the Constitution that only the religious practices of churches or church-related non-profits are entitled to accommodation?

Justice Ginsburg has a response to the professor’s questions. Religious organizations, she argues in her Hobby Lobby dissent, “exist to foster the interests of persons subscribing to the same religious faith,” whereas for-profit corporations do not.

Workers who sustain the operations of those corporations commonly are not drawn from one religious community. Indeed, by law, no religion-based criterion can restrict the workforce of for-profit corporations. . . . The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, as clear as it is, constantly escapes the Court’s attention.

“It is not clear to whom she refers here,” Sullivan remarks on this passage. “As with the other justices in this case and others, her Delphic pronouncements about religion seem to come from the ether. How does she know this? Few who study religion would agree with this statement.”

One of the merits of Sullivan’s work is that it goes “beyond the culture-wars framing of most commentaries” to interrogate assumptions about religion and the law shared by conservatives and liberals. Here she draws on decades of study of the phenomenology of American religion as shaped by and as shaping the modern rule of law. Above all, this study has attended to the heterogeneity of religious communities and the agency of individual practitioners.

Indeed, Americans have always been incredibly varied, creative, and entrepreneurial in living out what they take to be their religious obligations—religious obligations that range far beyond the prescriptions of the mainline churches, which seem staid, contained, and tamed to the many who consider their own religious practices, unapproved by traditional religious authorities, to be alive with the spirit. They find their religious community and their religious fields of action in places other than churches—including the marketplace.

On Sullivan’s view, the Hobby Lobby dissenters and their allies—while careful not to appear to pass judgment on the sincerity of the plaintiffs’ beliefs—cannot but pass judgment on their quality: “Real Christians, the dissenters and their supporters say, do not mix religion with business. Nor do real Christians seek to disadvantage others in the exercise of their religious freedom.” Protection of religious freedom, Sullivan contends, means “protection only for the kind of religion they like, the private, individualized, progressive kind.”

Oracular or not, Ginsburg is making two distinct claims. One is that the workforce of religious nonprofits is significantly homogeneous as compared to the workforce of for-profits. This claim surely is empirically questionable, especially as is applies to large, religiously-affiliated nonprofits with massive staffs and commercial interests. Consider Catholic hospitals, which operate 15 percent of all hospital beds in the country and employ around 725,000 people, both Catholic and non-Catholic. How spiritually uniform can 725,000 people be?

Ginburg’s other claim is about the legal purposes of for-profits as compared to the purposes of religious nonprofits. This clearly emerges when she later quotes Gilardi v. US Department of Health and Human Services, “for-profit corporations are different from religious non-profits in that they use labor to make a profit, rather than to perpetuate [the] religious value[s] [shared by a community of believers].”

But Sullivan is not interested in entering into the esoterica of corporate law. Her concern is “the rotten core at the heart of all religious freedom laws,” the “multiple legal fictions at the heart of any legal protection for religious freedom—legal fictions whose value is exhausted.” Legal fictions are necessary, Sullivan writes. But stretched too far, they can become “nothing more than lies.” Her project is a far more foundational challenge, a challenge to the very idea of “Religion” as a category under the law.

RD contributing editor Austin Dacey will be writing a series of posts in the coming months as part of a joint project between The Immanent Frame and Religion Dispatches made possible by the generosity of the Luce Foundation.


  •' Jim Reed says:

    One basic question is do you want the system to work, or do you want the system to fail? Some people want the healthcare system to not work so that the government does not try to help people, and the system can be controlled by business. The interests of the rich and the interests of the masses are different here. Do we want a system of socialized medicine, or do we want a system of every man for himself? The rich like that approach because they have the money to take care of themselves, and collectively they don’t want their money helping others.

  •' Guy Fawkes says:

    Jim Reed,

    Can you name one instance where the government has taken over the function of the free market system and made it less complicated to navigate, less expensive to run and more profitable than a ‘for-profit’ business in the ‘free-market system’? Keep in mind that any and all government ‘projects/programs’ are funded solely by taxes which are paid for by profits earned by businesses, and wages paid to citizens who are employed in the ‘free-market system.’ Governments do not produce wealth; they merely re-distribute wealth taken in the form of taxes from profits earned by free-market business and the wages earned by citizens who are employed in the ‘free-market system.’

    In a free-market business, employees are paid by profits earned as a result of goods and services sold by the business. All employees who work for any given government program are paid by taxes taken from the same free-market businesses who, as already noted, are also paying their own employee’s wages, which are – in turn – also taxed to pay the wages of employees who work for the government.

  •' Jim Reed says:

    The concept of the commonwealth is the nation does things for us, that we couldn’t do for ourselves. The government set up a highway system, and the nation benefits. The government sets up a system of national parks, and that helps keep us from destroying everything. The government is supposed to regulate Wall Street so that they don’t just try to steal all they can from us. We work our lives, and the government sets up a social security system to help with our retirement. The rest of the developed world has set up systems of national health care, but that one seems to be tough for us to match.

  •' Guy Fawkes says:

    Jim Reed,

    Thank you for replying, but my question did not actually have anything to do with what the framers of the U.S. Constitution deemed necessary for the establishment of the new U.S. Government as they so eloquently stated in the preamble of the U.S. Constitution:

    We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

    The provisions clearly stated in the preamble of the U.S. Constitution are, of necessity, the duty of any democratic-republic government to its people – so, the framers got this absolutely correct…and I do not dispute it.

    My original question, which you failed to address, was: “Can you name one instance where the government has taken over the function of the free market system and made it less complicated to navigate, less expensive to run and more profitable than a ‘for-profit’ business in the ‘free-market system’?”

    Please do me the courtesy of only replying to this question if you can do so without throwing out any more ‘red herrings’ in the process…what I mean by this is, don’t change the subject.

  •' Jim Reed says:

    Social security is a great retirement program run by the government. Retirement programs run by companies tend to ultimately just take the money back for things like golden parachutes for the owners. The government can run programs for the benefit of all. Companies are in it for greed, and will take advantage of every opportunity they can find to take from others, so we a government to at least try to make rules to control the for profit companies, although it doesn’t work well to the degree the Republicans are in charge.

  •' Aravis Tarkheena says:

    Jim Reed wrote:

    “Social security is a great retirement program run by the government.”


    Lol. You’re joking right?

    Do you have any idea of what a poor state S.S. is in? Or how low its rate of return is? (Something like 1/5 of what you’d get out of a private retirement plan.)


    Jim Reed wrote:

    “Retirement programs run by companies tend to ultimately just take the money back for things like golden parachutes for the owners.”


    Golden parachutes are written into the contracts of CEO’s and other high-ranking. They aren’t the result of money being “taken back” from someone’s retirement account — whatever that means.

  •' Jim Reed says:

    Taken back means a lot of people lost retirement plans recently.

    We have gone through a period of a lot of retirement plans being shut down, and the people lose. Often those at the top still get their bonus money. The contracts tend to be written to favor those at the top writing the contracts.

    The Social Security system is actually pretty strong. It is not going under. Thankfully it is one of the few things that was saved at the end of the Bush term when stocks fell. Thankfully we didn’t follow the Republican idea if switching social security to you investing your money in the stock market just before the fall.

  •' SPRuis says:

    Oh, I give up! It is just impossible! We have to throw out all religious exemptions from government program and let them work it out if the free market of ideas. ;o)

  •' Rmj says:

    Americans find their religious their religious community and their religious fields of action in places other than a building designated as a “church” because people have always done that. Religion has never been a neatly distinct category of human experience walled off from all other civic, social, or interpersonal relationships and human endeavors.

    So I’m not sure what the basis for Sullivan’s analysis is. Categories cannot be absolutely applied, so categories are all rotten lies? Sullivan may have some expertise in sociology, but in law Sullivan is a washout.

    The law, at least under our Constitutional and common law based system, is always charged with sorting out conflicting claims and reaching some manner of resolution. That this can’t be done with absolute precision and categorical imperatives which leave no room for ambiguity does not indicate a rotten heart in the law. I not Sullivan makes no attempt to deal with Ginsburg’s legal analysis: the dissent in Hobby Lobby is simply treated as error on a purely conceptual basis, because it cannot produce a bright line result. Yes, Sullivan acknowledges legal fictions are necessary to the law, but without every acknowledging what “legal fictions” are, or even that the term means. It is treated as a non-lawyer would treat the term: a fancy way of saying “lie.”

    Sullivan wants to slice the baloney so thin it has only one side. Can’t be done. Law, among other fields of complex thought, realizes this. Sullivan’s argument is based on a reductio ad absurdum, and a very poor understanding of the issues involved. I will say, as a pastor, that yes, even within a congregation there is a wide range of beliefs, sometimes so wide you wonder how any of them can claim to be of the same faith, much less of the same congregation. Does that simple fact destroy churches, destroy the very idea of a church?

    Perhaps to a child. And if you can’t distinguish between that kind of group and a body of employees of a corporation, then on what basis can we have this discussion in the first place?

  •' Jim Reed says:

    It seems impossible because the different agendas make it so complicated. The rich want to crush any share the wealth ideas so that they can keep more of the nations wealth for themselves, and it has been working. But they need votes, so they appeal to evangelical Christianity because those are the cheapest votes to buy. Evangelical Christianity wants acknowledgement from the rest of the nation that fundamentalist Christianity is a morally superior way to go, so they need to come up with ways to look down on others. They need the government to give in to their ideas, so they need things to oppose so that they can win some battles. They found an issue where they can team up with the fiscal conservatives in contraception. The evangelicals have a shot at showing their moral superiority, and the fiscals have a shot at killing health care. Health care is at some level spreading the wealth, and Republicans see this as wealth that could be in their pockets if they can kill the social program. Every social program represents a chance for Republicans to get more rich if they can kill it, and most of the time opposing social programs seems to be a way that evangelical Christians can demonstrate their morality. This all works better if they can keep it too complicated for those outside the fiscal conservative and moral conservative circles to understand.

  •' RexTIII says:

    The religious element of the American Population, particularly the more extreme Christian type of individuals, have never ceased in their quest to force their faith upon us all. Sadly, quite successfully far too often. Always the persecuted, always the sad pathetic tearing away at the strength of a whole nation in order to maintain a false sense of superior thinking and being human. RBG rocks!

  •' Todd Weir says:

    So is your argument that religious groups should be exempt from the tax benefits that private colleges, the United Way, and thousands of other nonprofit groups are allowed? That would be discrimination favoring secular nonprofits over those which are religious. Churches, synagogues etc. are part of the thriving nonprofit culture in America where people voluntarily associate around common interests. These institutions are different than Hobby Lobby because they meet the criteria for 501 (c)3 status. We do have to work things out in the free market of ideas. If people do not put their money to our purposes, we close-which is happening to about 7000 congregations per year at the moment. We do not get near the tax benefits that Exxon or GE gets. I would be very happy with those kind of Federal subsidies. So I wonder what your point is, other than you don’t like religion and don’t think it should get the same treatment as the ACLU, human rights groups or private education.

  •' Avery says:

    So, in other words, you agree with the majority ruling in Hobby Lobby.

  •' Jim Reed says:

    We think we understand the ACLU and human rights groups. Religion is more of a mystery. I am sure religion wants to keep it that way because if it is too well understood, it would be in big trouble. Consider the Mormons. They thought more exposure was going to grow the religion, but they seem to have learned the lesson and are now pulling back into their shell. Consider the Catholics. Hundreds or thousands of years ago they understood it would be a big mistake to explain themselves too clearly, so they just made everything a mystery and that is where it stands to this day.

  •' Craptacular says:

    The problem with religious exemption laws is that they remove the necessity of compromise, the foundation of society and people living in close proximity. The religious seem to feel that they don’t need to compromise to live with the rest of us because:

    1. They seem to think they have never had to compromise before, so these compromises are a recent phenomenon (they are not).
    2. Their laws and rules come from a position that cannot be questioned, their god and its rules are above compromise (they call our compromises “the laws of man”).
    3. Each compromise is a war against religion/christianity, and they are suffering and discriminated against because they can’t pretend the rest of us don’t exist or have agency.

    The “rest of us” are looking for a compromise where we can all work together without causing unnecessary friction, while those who support religious exemptions are asking for the privilege of not compromising.

  •' Jeffrey Samuels says:

    wow somebody missed the last recession. What if SS was privatized during that period?

  •' Aravis Tarkheena says:

    Who said anything about privatizing social security?

    Jim Reed said that “social security is a great retirement program run by the government.” I simply pointed out that it is not “great” by any measure.

    Never said anything about privatizing it.

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