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The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.
By John Kincaid
It was shocking to read David Schultz’s contention in PA Times (July 8, 2014) that the protection of rights “creates a mess for public administrators.” Because of Burwell v. Hobby Lobby (2014), administrators “will now have to look for possible religious objections to a host of regulations they implement.”
Wow! Were the founders wrong to insist that rights protection is government’s principal raison d’etre? Should the Declaration of Independence have said we are endowed only with rights that do not inconvenience government officials?
Did the Volstead Act burden public administrators by exempting sacramental wine (as well as physicians’ whiskey prescriptions) from Prohibition? Are those horse-and-buggy Amish a pain in administrators’ butts?
Such attitudes feed the fears of many Americans that government is their enemy, not their servant. One need not agree with Hobby Lobby’s objection to four contraception drugs or with the court’s ruling, but administrators must implement laws no matter what their beliefs and, if need be, write regulations consistent with those laws. The accommodation and adjudication of religious objections are the responsibilities of elected officials and judges. If administrators infringe religious freedom, the courts are available for relief.
As David J. Houston, Patricia K. Freeman and David L. Feldman note in a 2008 Public Administration Review article titled “How Naked is the Public Square?,” many administrators might not greet Hobby Lobby as an inconvenient mess because “public servants . . . are more religious and hold less secular attitudes than do non-public servants.” Furthermore, prison, school, and mental health administrators have decades of experience dealing with religious exemptions from policy mandates.
Religion occupies the pre-eminent position in the First Amendment. It is even mentioned twice: to guarantee freedom from an established religion and to guarantee the free exercise of religion. The latter applies not only to individuals but also to individuals organized in corporate capacities as congregations.
Religious exemptions to government mandates predate the U.S. Constitution. An important example dear to me is conscientious objection to military service, first recognized in statutes in Massachusetts (1657) and Rhode Island (1662). When some Continental Army officers impressed Quakers into service in Valley Forge, Pennsylvania, George Washington ordered the Quakers’ release. The Declaration of Rights of Pennsylvania’s 1776 Constitution even stated: “Nor can any man who is conscientiously scrupulous of bearing arms, be justly compelled thereto.”
Nearly 200 years later, John F. Kennedy said, “War will exist until the distant day when the conscientious objector enjoys the same reputation and prestige that the warrior does today.”
Demands for religious exemptions are likely to increase, moreover, because the expanding administrative state promulgates more mandates. By contrast, conscientious objection to military service is now largely moot because the draft—a government mandate–was replaced in 1973 by a volunteer army. Voluntary choices obviate the need for religious exemptions.
U.S. Supreme Court Justice William J. Brennan made this point decades ago when he warned that as government mandates increase in number, scope and depth, the Court will have to be more vigilant in protecting rights against government infringements.
Thus, it is incorrect to say that the “Hobby Lobby decision is dragging the Court and public administrators into an excessive entanglement of church and state” (Schultz 2014). It is the federal government’s health-insurance mandate that has triggered the entanglement by colliding with the religious convictions of some citizens.
The judicial history of conscientious objection suggests that demands for non-religious conscience-based exemptions to government mandates will likely increase as well. In United States v. Seeger and Welsh v. United States, the Supreme Court held that conscientious objection can rest on religious or non-religious beliefs.
Non-religious issues will arise in many contexts. In my city, Easton, Pennsylvania, a father named his son Adolf Hitler Campbell. A ShopRite supermarket refused to provide a birthday cake displaying that name. Was ShopRite wrong? What if a man wants a tattoo that says “Gas Jews” emblazoned across his chest? He has a First Amendment right to the tattoo, but is a tattoo business obligated to provide it?
Another fascinating twist is that in response to the Supreme Court’s Town of Greece v. Galloway ruling upholding invocations at government meetings, some governments are inviting atheists to deliver invocations.
The notion that corporations cannot have rights or be construed as persons is also incorrect. Three of the rights embedded in the body of the U.S. Constitution—prohibitions of bills of attainder, ex post facto laws and contract impairments—apply to individuals and corporate entities.
In 2009, the national community organization Association of Community Organizations for Reform Now (ACORN) filed a lawsuit arguing that a congressional cutoff of its funding was a bill of attainder. Although ACORN lost, the federal courts entertained ACORN’s attainder case. Previously, the U.S. Supreme Court had ruled that the attainder prohibition also applies to classes of people such as Confederate sympathizers and Communist Party members subjected to congressional denial of government employment because of their beliefs.
The U.S. Code defines corporations as persons, and the U.S. Supreme Court has, since the rise of corporations, recognized constitutional protections for nonprofit and for-profit corporations. Rights of corporations were expanded during the 1950s and 1960s when the court sought to protect advocacy corporations such as the National Association for the Advancement of Colored People, or the NAACP, from various government intrusions. Corporations have long had speech, petition, protest and associational rights and the FBI, for instance, cannot search ASPA’s office files or Bank of America’s files without a search warrant as required by the Fourth Amendment.
The court, of course, will have to define further the nature and boundaries of corporate religious rights in future cases, but the court does this in many rights fields.
Further, the court will likely face new issues as the Muslim world and Muslim Americans acquire more economic power. For example, will a bank comparable in size to JPMorgan Chase be permitted to operate throughout the United States under rules of Sharia-compliant finance? What about adherence to other Islamic rules about pork, alcoholic beverages, pornography and personal attire in business practices?
In a country that celebrates diversity, why may we not, as William James put it, “be a sort of Republican banquet . . . where all the qualities of being respect one another’s personal sacredness, yet sit at the common table of space and time?” Public administrators should be proud to serve at such a banquet.