I have a long “Short Take” on the Hobby Lobby case on Minding The Campus today, HOBBY LOBBY: RELIGION UNHOBBLED? If you’re not Hobby Lobbied out by now, take a look at it. In fact, take a look even if you are.
UPDATE 3 July 2014
I have just posted the following reply to a comment on my Minding The Campus piece. I am also posting it here since I don’t know when, or even if, my reply will appear there.
John K. Wilson says it is a “serious error” for me to question how corporations that lack the ability to “exercise religion” somehow do have the ability to engage in religious discrimination. His reason — “that rights belong to individuals, and thus must be banned” — is true but completely irrelevant to the issue at hand. His further statement — “corporations are perfectly capable of violating the rights of individuals even though corporations don’t have religious rights” — simply reveals his own ignorance of the Religious Freedom Restoration Act, under which Hobby Lobby decided.
First, whatever one thinks of the merit’s of Hobby Lobby’s own claim, it is undisputed that many, many corporations do in fact have religious rights. Most churches and many clearly religious institutions, after all, are corporations that obviously have religious rights. RFRA, moreover, does not guarantee that every religion-based claim to exemption from general laws will succeed. Religion can be burdened under RFRA if the government has a compelling interest and there is no less burdensome way to achieve it. Perhaps Mr. Wilson missed the part of the majority opinion stating that “The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.”
Finally, Mr. Wilson seems oblivious to the role of intent in discrimination. In fact, Justice Breyer’s dissent, of which Mr. Wilson is so fond, emphasizes
(citations omitted) that “The First Amendment is not offended … when “prohibiting the exercise of religion . . . is not the object of [governmental regulation] but merely the incidental effect of a generally applicable and otherwise valid provision.”
With that quote in mind, let us now return to my example of a corporation that refused to hire Muslims. That sort of discrimination reflects bias and requires intent. Ginsburg, no doubt with Mr. Wilson’s enthusiastic agreement, also quoted an observation from Justice Stevens in the Citizens United case. Corporations, he asserted, “have no consciences, no beliefs, no feelings, no thoughts, no desires.”
How, then, can they act on the basis of bias? But if they can exercise bias, why can they not exercise religion?
Finally, and moving on, take one more look at Justice Breyer’s insistence that governmental religious discrimination requires intent, and ask yourselves this question: why are liberals so intent upon finding clear intent before they will conclude that a government policy discriminates against religion, but their eager conclusion that just about everything amounts to disparate impact discrimination against non-religious minorities knows no bounds?
