Ohio Attorney General Mike DeWine is standing up for the religious freedom rights of . . . wait for it . . . corporations.
Yes, according to DeWine, Mitt Romney was right: Corporations are people too. But DeWine goes further than Mitt: Corporations go to church, too.
DeWine’s Office wrote an amicus curiae, or “Friend of the Court Brief” for the United States Supreme Court in the Hobby Lobby case. The brief was joined by Republican Attorneys General in Michigan, Alabama, Georgia, Arizona, Louisiana, and other states.
In this case, Hobby Lobby is arguing that it is exempt on religious grounds from a requirement under the Affordable Care Act that they provide contraception coverage to their workers.
Under federal law, the Government cannot substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, unless the burden furthers a compelling government interest and is done in the least restrictive way. (This federal law codified law standing Supreme Court jurisprudence. It is NOT to be confused with the significantly broader “religious freedom” law proposed in Arizona, for example.)
The federal law protects a “person’s exercise of religion.” 42 U.S.C. § 2000bb–1. The threshold question for the Supreme Court is whether a secular, private corporation is a “person” who can claim religious exemption from federal laws.
DeWine says it is.
DeWine suggests that running a business and making money is a form of evangelism. In other words, corporations exist to make more than money, they exist to express the religious beliefs and conscience of their founders. This view goes well beyond the idea that corporations have values beyond the balance sheet.
This is, in a word, remarkable.
A church or religious school certainly has First Amendment protections. That is because these organizations are established to promote a religious purpose. And they are almost always non-profit organizations. In contrast, a corporation is a distinct and secular creation, even if it is run or owned by religious people.
The difference is easy to see if you consider a hiring decision. A Baptist church can legally refuse to hire a rabbi as a pastor, for example. But a company run by Baptists cannot legally refuse to hire a Jewish person as a manager.
Consider the implications of DeWine’s position. A company could claim an exemption for all of the federal civil rights laws if the application of those laws somehow violated the religious beliefs of the owners. Can the owner of an apartment building refuse to rent to African-Americans? Sure, says DeWine, if renting to a black family violates your religious beliefs! According to DeWine, all you have to do to avoid a federal law is claim that your religion requires it. He writes that courts should simply “acknowledge the religious claims of the family businesses and defer to their understanding of their own religious doctrine.”
Ohio has established corporations for the precise purpose of recognizing a distinction between the corporate entity and the shareholders. For example, Ohio allows individuals to establish “limited liability corporations” in order to shield their personal assets. If DeWine is correct, then the distinction between a limited liability corporation and its owners disappears.