David Green, who built a family picture-framing business into a 42-state chain of arts and crafts stores, prides himself on being the model of a conscientious Christian capitalist. His 525 Hobby Lobby stores forsake Sunday profits to give employees their biblical day of rest. The company donates to Christian counseling services and buys holiday ads that promote the faith in all its markets. Hobby Lobby has been known to stick decals over Botticelli's naked Venus in art books it sells.
And the company's in-house health insurance does not cover morning-after contraceptives, which Green, like many of his fellow evangelical Christians, regards as chemical abortions.
"We're Christians," he says, "and we run our business on Christian principles."
This has put Hobby Lobby at the leading edge of a legal battle that poses the intriguing question: Can a corporation have a conscience? And if so, is it protected by the First Amendment?
The Affordable Care Act, aka Obamacare, requires that companies with more than 50 full-time employees offer health insurance, including coverage for birth control. Churches and other purely religious organizations are exempt. The Obama administration, in an unrequited search for compromise, has also proposed to excuse nonprofit organizations such as hospitals and universities if they are affiliated with religions that preach the evil of contraception.
You might ask why a clerk at Notre Dame or an orderly at a Catholic hospital should be denied the birth control coverage provided to employees of secular institutions. You might ask why institutions that insist they are like everyone else when it comes to applying for federal grants get away with being special when it comes to federal health law. Good questions. You will find the unsatisfying answers in the Obama handbook of political expediency.
But these concessions are not enough to satisfy the religious lobbies. Evangelicals and Catholics, cheered on by anti-abortion groups and conservative Obamacare-haters, now want the First Amendment freedom of religion to be stretched to cover an array of for-profit commercial ventures, Hobby Lobby being the largest litigant. They are suing to be exempted on the grounds that corporations sometimes embody the faith of the individuals who own them.
"The legal case" for the religious freedom of corporations "does not start with, `Does the corporation pray?' or `Does the corporation go to heaven?"' said Kyle Duncan, general counsel of the Becket Fund for Religious Liberty, which is representing Hobby Lobby. "It starts with the owner."
For owners who have woven religious practice into their operations, he told me, "an exercise of religion in the context of a business" is still an exercise of religion, and thus constitutionally protected.
The issue is almost certain to end up in the Supreme Court, where the betting is made a little more interesting by a couple of factors: six of the nine justices are Catholic, and this court has already ruled, in the Citizens United case, that corporations are protected by the First Amendment, at least when it comes to freedom of speech. Also, we know that at least four members of the court don't think much of Obamacare.
In lower courts, advocates of the corporate religious exemption have won a few and lost a few. (Hobby Lobby has lost so far, and could eventually face fines of more than $1 million a day for defying the law. The company's case is now before the Court of Appeals for the 10th Circuit.)
You can feel some sympathy for David Green's moral dilemma, and even admire him for practicing what he preaches, without buying the idea that la corporation, c'est moi. Despite the Supreme Court's expansive view of the First Amendment, Hobby Lobby has a high bar to get over -- as it should.
For one thing, under Title VII of the Civil Rights Act -- which was enacted at the behest of religious groups -- companies cannot impose religious tests on their employees. They can't hire only Catholics, or refuse to hire Catholics. They cannot oblige you to practice the same faith their owners do.
Companies are, by legal design, zones of theological diversity and tolerance. So Green, whose company is privately held, can spend his own money to promote his faith, but it would be an act of legal overreach to say that he can impose his faith on his employees by denying them benefits the government has widely required.
"If an employer can craft a benefits system around his religious beliefs, that's a slippery slope," said Marci Hamilton, a professor at the Benjamin N. Cardozo School of Law and a critic of religious exemptions. "Can you deny treatment of AIDS victims because your religion disapproves of homosexuals? What if your for-profit employer is a Jehovah's Witness, who doesn't believe in blood transfusions?"
Also, courts tend to distinguish between laws that make you do something and laws that merely require a
financial payment. In the days of the draft, conscientious objectors were exempted from conscription. A sincere pacifist could not be obliged to kill. But a pacifist is not excused from paying taxes just because he or she objects to the money being spent on war.
Doctors who find abortion morally abhorrent are not obliged to perform them. But you cannot withhold taxes because some of the money goes to Medicaid-financed abortion.
"Anybody who pays taxes can find something deeply offensive in what the government does," said Robert Post, a First Amendment expert at Yale Law School. "`I'm not paying my taxes because of torture at Guantánamo.' `I'm not paying my taxes because of drones."'
"People can't pick and choose their taxes, because you couldn't have a functioning tax system."
I don't know what the courts will say, but common sense says the contraception dispute is more like taxation than conscription. Nothing in the Obamacare mandate obliges anyone to use contraception if, for example, she is in the tiny minority of American Catholics who take the church's doctrine on birth control seriously.
And Hobby Lobby's policy doesn't prevent the use of morning-after pills: it just assures that if an employee does use emergency contraception, she pays for it out of her Hobby Lobby paycheck rather than her Hobby Lobby insurance.
Douglas Laycock, a law professor at the University of Virginia who often sides with proponents of broader religious liberty, has taken to warning his friends that their aggressive positions on abortion, gay rights and now contraception are undermining the longstanding American respect for free exercise of religion.
"The religious community cannot take religious liberty for granted," he said in a speech before the contraceptive issue blew up. "It needs to expend a lot more energy defending the right to religious liberty, and it would help to spend a lot less energy attacking the liberty of others."
Cases like Hobby Lobby, he told me, have compounded his worry.
"Interfering with someone else's sex life is a pretty unpopular thing to do," he said.
"These disputes are putting the conservative churches on the losing side of the sexual revolution. I think they are taking a risk of turning large chunks of the population against the idea of religious exemptions altogether."
But Laycock's is a lonely voice among advocates of religious exemptions. More typical is Rick Warren, the evangelical megachurch pastor, who says the battle to preserve religious liberty "in all areas of life" may be "the civil rights movement of this decade."
Warren goes on to say -- I am not making this up -- that "Hobby Lobby's courageous stand, in the face of enormous pressure and fines," is the equivalent of the Birmingham bus boycott.
When I read that kind of rhetoric from our country's loftier pulpits, I understand why the fastest-growing religious affiliation in America is "none."