The US Supreme Court hearing in the contraception mandate cases is coming up later this month. Experts and advocates on all sides have been arguing whether the Religious Freedom Restoration Act (RFRA) was intended to cover corporations, whether the mandate constitutes a substantial burden, and whether the government can demonstrate a compelling interest even if it is. Some have even suggested the law is unconstitutional (a view Baptist Joint Committee Director Brent Walker strongly rejects).
Most of the arguments for and against are pretty well established and well-tread. We just don’t know which will be accepted by the nine justices whose views will determined the outcome.
So it’s nice and interesting to read a slightly different slant on these arguments. Writing in the Boston Globe, Boston College law professor Kent Greenfield offers views from the perspective of corporate law, as he considers the ramifications should the court hold that corporations are people for the purposes of RFRA protection in a case like this.
Greenfield argues that the corporate law balance between government regulation and the pursuit of profit – between, in a sense, conscience and capitalism – would be significantly undermined if for-profit corporations were allowed to avoid rules by citing religious objections. Here is a snippet:
Corporations are hardwired to produce financial gain; most will seek out shortcuts to maximize returns even if that means they must pollute, discriminate, or endanger. The best way to ensure corporations are positive influences in an economy, much less a society, is to construct a framework of financial, workplace, and environmental regulation. In other words, corporate conscience alone is no shield from bad behavior or a sufficient prompt for good. We need laws for that.
This is where the Supreme Court could do real damage. Hobby Lobby wants to be relieved of regulatory controls because of religious views. Such relief will give it an unfair advantage in the marketplace . . .
…
Ironically perhaps, claims of religious conscience could liberate companies to become bad actors in the economy and society at large. Instead of sacrifice, corporate conscience could devolve to sacrilege.
I am not sure I agree with the entirety of his prediction elsewhere in the piece of the full range of duplicitous actions corporations would be allowed to take if Hobby Lobby is successful. RFRA’s requirement that the burden on religious exercise be “substantial” and that it be based on “sincerely held beliefs” should lessen the impact he describes. But, it is interesting and helpful to think of the role of profit and impetus for conscience as our corporate system is currently defined.
