Justice Ginsburg’s Objection
In her dissent, Justice Ginsburg raised a variety of objections to the court’s decision. The one I believe most needs a response is this: Ginsburg begins by asserting that “the exercise of religion is characteristic of natural persons, not artificial legal entities.” She grants that “[t]he First Amendment’s free exercise protections … shelter churches and other non-profit religion-based organizations.” But, she goes on to point out based on case law, “No such solicitude is traditional for commercial organizations.” Why? Because there is a “distinction between a community made up of believers in the same religion and one embracing persons of diverse belief.” Moreover, quoting Judge Henry T. Edwards, she writes, “for-profit corporations are different from religious non-profits because they use labor to make a profit, rather than to perpetuate [the] religious value[s] [shared by a community of believers].”
Justice Ginsburg’s objection has intuitive plausibility. We know that there are differences between churches and businesses. The former can require employees to profess a specific theological creed, for example, while the latter cannot.
Even with such differences in mind, however, Ginsburg’s objection is problematic. If, as she argues, “the exercise of religion is characteristic of natural persons, not artificial legal entities,” it is not clear why the Supreme Court should show solicitude for “churches and non-profit religion-based organizations,” which, as nonprofit corporations, are also “artificial legal entities.” And yet, it does.
It’s also not clear why perpetuating religious values and engaging in commercial activity should be considered fundamentally opposite. The Assemblies of God does both, after all, through Gospel Publishing House and My Healthy Church.
Finally, it’s not clear that the concerns of religious organizations pertain only to “the community of believers.” Churches and Christian charities are concerned about the spiritual and material well-being of people outside the community of faith. That is why they evangelize and provide help to people who do not share their beliefs or attend their churches. They have an other-directed concern that Justice Ginsburg seems not to consider.
In the end, what worries me about Ginsburg’s line of argument is the narrowness of her understanding of the exercise of religion. Essentially, it limits religion to religious individuals engaged in religious activities or participating in religious organizations. This simply doesn’t accord with the way that Christians and other religious persons live their lives. For them, religion is the entirety of their lives, not just the religiously explicit portions, such as personal or corporate worship activities. This is because their faith defines who they are, and who they are affects both what they do and how they do it.
Christian business owners, on this understanding, do not leave their values outside when they walk through the front doors of corporate headquarters. Those values shape the way they do business. So, for example, Hobby Lobby closes its stores on Sunday because as Christians the Green family believes that the Sabbath should be a day of worship and rest. The starting wage at Hobby Lobby is nearly twice the federal minimum wage, and its health-care plan is generous, because as Christians the Green family believes it ought to treat its employees well. Notice that these business decisions, based on Christian values, affect the company’s bottom line negatively. Closing one day a week and paying higher than required starting wages represent the loss of significant revenue and profit. If Hobby Lobby were simply out to make money, such a loss would make no sense. The Green family’s faith puts it in perspective, however: There is more to business than profit.
It seems to me that Justice Ginsburg’s dissent, precisely because of its narrow understanding of the exercise of religion, simply cannot make sense of the way that closely held corporations such as Hobby Lobby or Conestoga Wood Specialties actually operate. How they operate reflects the Green and Hahn families’ Christian faith. Ginsburg’s narrow understanding thus represents a political point of view that would weaken religious freedom in America, rather than strengthen it.
