A Christian Approach to Corporate Religious Liberty

Edward A. David

• Publisher: Palgrave Macmillan
• Year: 2020
• ISBN:
  9783030562113
• Topic: Business
• Subtopic: Business Ethics
• Index: Business

This book addresses one of the most urgent issues in contemporary American law—namely, the logic and limits of extending free exercise rights to corporate entities. Pointing to the polarization that surrounds disputes like Burwell v. Hobby Lobby, David argues that such cases need not involve pitting flesh-and-blood individuals against the rights of so-called "corporate moral persons." Instead, David proposes that such disputes should be resolved by attending to the moral quality of group actions. This approach shifts attention away from polarizing rights-talk and towards the virtues required for thriving civic communities. More radically, however, this approach suggests that groups themselves should not be viewed as things or "persons" in the first instance, but rather as occasions of coordinated activity. Discerned in the writings of Saint Thomas Aquinas, this reconceptualization helps illuminate the moral stakes of a novel—and controversial—form of religious freedom.

© The Author(s) 2020

E. A. DavidA Christian Approach to Corporate Religious LibertyPalgrave Frontiers in Philosophy of Religionhttps://doi.org/10.1007/978-3-030-56211-3_1

Begin Abstract

1. The Ethics of Corporate Religious Liberty

Edward A. David¹

(1)

Faculty of Theology and Religion, University of Oxford, Oxford, UK

Edward A. David

Email: [email protected]

Keywords

Religious freedomCorporate personBurwell v. Hobby LobbyChristian ethics

End Abstract

In recent years, the U.S. Supreme Court has heard a number of highly contentious cases involving the religious liberty claims of corporate litigants—including houses of worship, religious non-profits, and for-profit corporations. Legal commentators disagree over to whom or to what corporate religious freedoms should chiefly apply. Some argue that rights to corporate religious liberty should apply only to certain types of voluntary associations.¹ Others suggest that groups of any type—whether or not voluntary in nature—are of equal moral concern; thus they claim that pro tanto rights to religious liberty should extend to groups like for-profit enterprises, as well as to the corporately empowered individuals that may own and control them.²

At their core, these two positions evince a concern over the proper scope and normative ground of corporate religious liberty—with theorists like Cécile Laborde emphasizing individual rights, and those like John Garvey recognizing the rights of groups or organizations. Both positions, of course, do not always recognize one type of right at the expense of the other. Individual-rights advocates admit of group rights, albeit for groups of an explicitly voluntary sort; and group-rights advocates often, if not always, ground their claims with reference to the rights of individuals. Nevertheless, the divide is unmistakable. It is a divide between ultimate normative justifications (individual or group rights) and, by extension, a divide between the most appropriate subjects involved (individuals or groups).

It is fairly evident that the individual–group divide has and continues to polarize public discourse around corporate religious liberty. On the one hand, the American Civil Liberties Union states that “eighty-one percent of Americans say the law should not allow companies or other institutions to use religious beliefs to decide whether to offer a service to some people and not others.”³ On the other hand, Becket, a public-interest group, affirms that “religious freedom protects the rights of individuals to observe their faith at all times” and, notably, in all organizational contexts—“whether at work, at church, in the town hall … or elsewhere in the public sphere.”⁴ As the Supreme Court made plain in Burwell v. Hobby Lobby Stores, Inc. (2014), such protection may indeed involve corporate decisions to offer services to some and not others.⁵ For certain individual-rights advocates, this is morally unacceptable and thus justifies persistent, even relentless, opposition to religious accommodations.⁶ It is no surprise, then, when Douglas Laycock notes that “open hostility to religious liberty is breaking out all around us … [as seen] in the exaggerated reactions to Hobby Lobby, in the hysterical opposition to religious-freedom legislation, and in the growing attacks on exemptions even for religious nonprofits.”⁷ The individual–group divide is large. It may grow larger still.

In this book, I offer a Christian ethical perspective on the observed divide, responding to its underlying question: To whom or to what does corporate religious liberty apply? In short, I propose that corporate religious liberty is best understood to apply to the group-agential actions of coordinating individuals and not to individuals or group persons per se. This proposal, substantiated through a Christian approach to corporate religious liberty, is meant to bridge the individual–group divide; and, just as importantly, it is meant to respond to various challenges associated with that normative debate. The present introduction provides an overview of these challenges, as discerned in political liberal discourse and with respect to Christian ethical commitments. Its primary aim is to demonstrate why this book’s guiding question merits a response from the Christian tradition, inclusive of its moral resources and its ideas about what groups are—that is, its group ontology.

Section 1.1 begins by viewing the corporate religious liberty debate from a macro perspective, highlighting disagreements over its appropriate subject-matter, as well as various explanatory reasons behind its current prominence. Section 1.2 adopts a closer perspective, focusing on the book’s guiding question in order to understand what political liberals consider its moral stakes to be. Section 1.3 then offers a preliminary reflection upon both the Christian ethical interests in the guiding question and the unique way in which the Christian tradition can respond. Finally, Section 1.4 details how the book’s response, its promised account of corporate religious liberty, will be structured.

1.1 Corporate Religious Liberty in Context

The question concerning to whom or to what corporate religious liberty applies is foundational for a basic understanding, or definition, of the term. Indeed, one’s response to the question illuminates the legal subjects protected and thereby establishes, along means-end reasoning, the moral purposes of corporate religious liberty protections. Given the question’s fundamental moral purpose, it should be unsurprising that subject-based definitions generate heated disagreement. Let us consider two such definitions and then explore why the associated debate is so ethically polarized.

Corporate religious liberty is a relatively new term to American legal discourse, having been popularized by legal scholars Chad Flanders, Micah Schwartzman, and Zoë Robinson in their 2016 anthology, The Rise of Corporate Religious Liberty. Focusing upon the adjective “corporate,” they describe the term as applicable to “any organized body of people—groups, associations, and organizations,” as well as to “those entities that have incorporated under law.”⁸ This is a broad definition, which encompasses any group-type (from churches to for-profit corporations) and, as stated, is indeterminate with respect to the moral nature of religious liberty itself—for example, whether it chiefly entails a liberty-right, claim-right, organizational autonomy broadly understood, or some combination of each.

Despite the general applicability and, by extension, the broad appeal of this definition, corporate religious liberty according to Flanders et al. is not the only viable, or morally appropriate, contender. More narrowly construed, in regards to both organizational applicability and moral ground, is Cécile Laborde’s equivalent term freedom of association, which she describes as the “right of collective religious autonomy.”⁹ This term deploys liberal egalitarian commitments to demarcate the types of entities deserving of collective autonomy rights. For Laborde, only those entities that meet strict criteria of coherence and competence can enjoy the privileges invoked by corporate religious liberty . A broader definition, she contends, would risk group domination and disrespect for individual rights and political liberal values.¹⁰

The discrepancies between Flanders et al. and Laborde highlight how corporate religious liberty is understood in different ways for diverse moral purposes. While Laborde’s freedom of association is seen as a defense of strictly voluntary associations, corporate religious liberty according to Flanders et al. invites normative justification for any group-type. Indeed, insofar as the latter conception is organizationally general, it could encourage the development of a form of religious liberty specific to non-church entities, such as for-profit enterprises. This form could sit alongside freedom of association (alternatively, church autonomy or religious autonomy¹¹) and would operate according to its own normative principles.

Whether a two-doctrine, or two-theory, conceptualization of corporate religious liberty is morally prudent will be considered below. For now, it is sufficient to note that corporate religious liberty has no settled definition within politico-legal discourse and that, whatever its construal, it is understood according to pre-determined moral positions (such as Laborde’s liberal egalitarianism) that invoke various purposes of law. Hence, disagreement over the proper subject(s) of corporate religious liberty matters ethically—indeed, the normative stakes are high.

Before addressing these stakes directly, we turn first to some explanatory reasons behind the rise, or increase in litigation, of corporate religious liberty.¹²

According to legal scholars Paul Horwitz and Nelson Tebbe, the rise of corporate religious liberty is happening alongside, not despite, a disaffiliation of individuals from organized religion.¹³ This claim, which falls short of being explicitly causal, suggests that religious conservatives are mobilizing to protect their interests within the culture wars by securing victories at the Supreme Court. These victories are made possible, claim Horwitz and Tebbe, due to the “opening for group rights ” afforded by recent case law. For example, Boy Scouts of A...

Table of contents

• Cover
• Front Matter
• 1. The Ethics of Corporate Religious Liberty
• 2. Corporate Religious Liberty in Church Teachings
• 3. Group Ontology and Skeptical Arguments
• 4. A Modest Account of Corporate Religious Liberty
• 5. Political Liberal and Theological Contentions
• 6. Integrating the Strong Group Agency of the Church
• 7. From Group Ontology to Christian Moral Reasoning
• Back Matter