Monday, February 19, 2018
Opinion

Blumner: Corporations and conscience

When the U.S. Supreme Court agreed last week to decide whether corporations have the religious freedom to ignore the contraceptive coverage requirements of the Affordable Care Act, I thought of Utah. • Why Utah? I directed the Utah affiliate of the American Civil Liberties Union in the late 1980s, and we had a case that asked a similar question.

The ACLU of Utah represented Arthur Frank Mayson, a janitor who had worked for 16 years at a gym owned and operated by corporate affiliates of the Mormon Church in Salt Lake City. In 1981, a crackdown occurred on wayward Mormon employees, and Mayson was fired for failing to maintain what is known as a "temple recommend." To keep his job, Mayson would have to tithe 10 percent of his annual income to the church, attend church regularly and abstain from coffee, tobacco and alcohol. He didn't.

The ACLU sued the church for religious discrimination. We argued that the church could dictate religious requirements in filling its religious jobs, such as clergy, but a janitor at an affiliated gym is too far removed from any religious function. Mayson shouldn't have to conform his behavior to his employer's faith.

But when the case reached the U.S. Supreme Court, the court unanimously ruled against Mayson. The justices said there is too much church-state entanglement when courts are asked to second-guess a religious employer.

The nonprofit aspect of the gym was key for some justices who wrote separately, since the work of a nonprofit is more likely to be part of a religious mission. In contrast, a for-profit corporation that exists to make money, even if owned and operated by a religion, may not get the same deference, the justices said.

Now the question of whether for-profit corporations have religious liberty is before the court, involving secular corporations, not religious ones. It should be an easy win for secular freedom. Corporations that don't think, feel or pray should not enjoy religious rights that derive from the human conscience. But the John Roberts court is so eager to expand corporate personhood (think Citizens United) that I worry about the outcome.

The court will review the claims of two companies that say the contraception coverage requirements of the federal Affordable Care Act violate their religious liberty. Hobby Lobby is an Oklahoma-based chain of more than 500 arts-and-craft stores and employs about 13,000 people full time. The company says it operates "consistent with biblical principles." Conestoga Wood Specialties is a Pennsylvania woodworking firm run by a Mennonite family with about 950 employees.

At first blush it may appear that what these companies want is rather modest — simply to be released from a legal obligation that violates their religious dictates.

But consider the real-life consequences.

Corporations run by Christian Scientists may not want to pay for their employees to see conventional doctors. Jehovah's Witnesses would want to exclude blood transfusions. Catholic employers may balk at end-of-life care or stem-cell therapy. Married same-sex couples may find they are denied federally guaranteed unpaid family leave to care for a sick spouse.

The breadth of religious dictates is so vast that they can justify many forms of invidious discrimination. What is to stop a Muslim employer from insisting that women employees come to work wearing a veil? And consider the employment implications of the widely held religious precept that women be subordinate to men.

Talk about church-state entanglement. Let corporations follow religious tenets over federal law and the courts will soon be spending their time refereeing what constitutes a validly held religious belief.

The owners of Hobby Lobby and Conestoga Wood chose to incorporate to gain legal advantages. The Supreme Court needs to recognize a corporation for what it is: an artificially created, profit-seeking entity that exists as a legal shield against lawsuits, not an extension of the human soul. Otherwise, the nation's employees may find themselves in the predicament of the janitor who lost his job because he wasn't Mormon enough.

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