The Supreme Court will decide whether family businesses like Hobby Lobby can assert religious freedom. Hobby Lobby’s owners, the Green family, are devout Christians who have no objection to paying for 16 out of 20 contraceptives mandated by the Affordable Care Act. However, they cannot pay for the remaining four contraceptives because these, as the government itself concedes, may act to terminate life. The Green family, represented by the Becket Fund for Religious Liberty, cannot, in good conscience, participate in the payment or distribution of these four drugs which they consider to be potential abortifacients.
The argument has been made that since corporations don’t go to heaven or hell, family businesses should not be able to freely exercise religion. This argument is flawed in many ways. It also ignores our own legal history, which is replete with examples where corporate charters have indeed been legal vehicles for the practice of religion.
During the colonial period, those in dissent from the established Anglican Church were able to use existing civil and secular legal entities to create a space to practice their religion in accord with the dictates of their consciences.
Royal colonies like Virginia and New York, where Anglicanism was established, were not receptive to religious dissidents like the Quakers, Baptists, Catholics, Puritans, or others. Charter or proprietary colonies like Pennsylvania, Rhode Island, Maryland, and even Massachusetts, were different. There, minority religious practices could find a home relatively free from government supervision and control.
It is telling that Roger Williams, who favored a broad understanding of religious freedom, received a charter for Rhode Island which stated: “No person within the said colony, at any time hereafter, shall be in any wise molested, punished, disquieted or called in question, for any difference in opinion in matters of religion . . . but that all . . . freely and fully have and enjoy his and their own judgments and consciences in matters of religious concernments.” In 1658, the General Assembly reinforced the validity of the charter, reminding the other colonies that: “Freedom of different consciences, to be protected from enforcements, was the principal ground of our Charter. . . ; which freedom we still prize as the greatest happiness that men can possess in this world.”
Initially, religious liberty was not favored in Virginia, where the English crown had established the Anglican Church. As a result, dissenting religions were persecuted. Virginians of varying religious persuasions adopted views more in keeping with a liberal polity. For example, George Washington wrote to the Annual Meeting of Quakers in 1789: “I assure you very explicitly, that in my opinion the conscientious scruples of all men should be treated with great delicacy and tenderness; and it is my wish and desire, that the laws may always be as extensively accommodated to them, as a due regard to the protection and essential interests of the nation may justify and permit.”
In Massachusetts, the colonial Legislature in 1692 approved a law mandating that each town use general taxation to provide for an “able, learned orthodox minister” of the Congregational church. In 1728, the Legislature granted an exemption from taxes to support local Congregational ministers to Baptists and Quakers, but they had to get a special certificate denoting their status from their town clerks.
Seen by the lights of today’s cultural and legal standards in the United States, these burdens on dissenters from the established church seem onerous, even absurd. But the federal government’s recent attempts to force citizens of the country, like the Green family, to pay for methods of birth control that can induce an early abortion or pay crushing fines to the IRS is not substantially different.
Recently, the federal government has begrudgingly carved out an exemption for certain religious institutions, which have received a sort of 21st century version of the special certificates once given to Baptists and Quakers in colonial Massachusetts. But the members of secular corporations who hold the same moral beliefs and have the same scruples of conscience have so far received no such relief.
The best of our legal heritage favors recognition of religious freedom exercised by family-run businesses and closely held companies.
Dwight G. Duncan teaches at the University of Massachusetts Law school. He filed an amicus brief in Sebelius v. Hobby Lobby, in support of Hobby Lobby.