A day before oral arguments in Sebelius v. Hobby Lobby Stores, Inc. were heard at the Supreme Court, USA Today and The Baylor Lariat published an op-ed penned by our President and Chancellor, Ken Starr.
His words provided a unique legal perspective that proved critical of the provisions of the Affordable Care Act challenged in the case, as he cited concerns of limitations upon religious liberties. I respect Judge Starr’s input and acknowledge his extensive and impressive legal experience; however, there remain a number of points that led me to a different conclusion.
The likelihood that the Green family would win their case had they not incorporated their business is spot on; the Religious Freedom Restoration Act would require the Supreme Court to approach this federal statute with strict scrutiny. Nevertheless, this is not the case before the high court and such an approach is not universal.
The Green family did incorporate Hobby Lobby, thus the protections of the First Amendment’s Free Exercise Clause simply do not apply. Precedent shows, as President Starr expounded on, that these protections are individual rights that ensure you and I may pray when and where we so wish. Despite consideration as “persons” under the law (Citizens United v. Federal Election Commission), corporations remain separate from individuals.
The very point of incorporating a business is to create a degree of separation between a legal entity and the individual. Judge Starr claims that Hobby Lobby is the Green family, their morals are its foundation, and hence should be granted similar religious protection, and “to argue otherwise is a risible example of highly strained arguments that give lawyers a bad name.”
With all due respect, and it may just be that I am not a lawyer, but only his claim appears tense, and the attempt to equate the family as the corporation is one they would likely eschew should Hobby Lobby ever file for bankruptcy.
Regardless of how spectacular the ethics of a corporation are, it is not by any means an individual, a person perhaps as legal niceties go, but not one entitled to the free exercise protections of people.
Furthermore, should the majority or plurality of justices side with the government, this case would simply align itself with the traditional approach to religious liberty where the contrary would expand this liberty to corporations.
There are already some incorporated churches and religiously affiliated institutions, including Baylor, that reserve specific rights, such as unique employment standards from non-ecclesiastical corporations.
Yet these infringe on certain elements of individual privacy, so should the court side with Hobby Lobby, it could set an unsettling new precedent that would privilege a for-profit business to a similar status.
Just as RFRA is meant to ensure the individual’s right to free exercise, dozens of other federal and state statutes alike are meant to protect against discrimination, an important element in a time where anti-discrimination bills sit at the steps of capitol buildings all across the land.