Religious Corporate Personhood

Cable-news shows the last two weeks (especially on Fox) have been dominated by the Catholic bishops’ objection to including contraception in the minimum healthcare plan employers must provide under the Affordable Care Act, and the compromise the Obama administration offered.

In brief: Churches could already claim an exemption to the rule, so the issue centered on other church-run institutions like hospitals or universities. By making a Catholic institution provide contraception to its employees, despite the fact that Catholic doctrine objects to contraception, “the Obama administration has cast aside the First Amendment to the Constitution of the United States, denying to Catholics our Nation’s first and most fundamental freedom, that of religious liberty” — according to one version of the letter which the bishops had read in every Catholic church.

The administration compromised: Church-run institutions also would not have to offer contraception in their healthcare plans, but if they didn’t, the insurance companies providing the plans must offer individual employees a separate, no-fee, no-co-payment contraception policy. (This works financially, because contraception doesn’t cost the insurance company money, it saves money by preventing pregnancies. So the employer is not subsidizing contraception, even indirectly.) But the bishops announced that they would not be satisfied until contraception was withdrawn from the minimum healthcare plan for everyone.

Most of the problems with the bishops’ claims have been dealt with in detail elsewhere:

But one point is not getting nearly the attention it deserves: The bishops are not defending the religious liberty of individual Catholics (who remain free not to use contraceptives). They are claiming “religious liberty” as an institutional right of the Catholic Church.

It’s corporate personhood all over again.

The Founders must be spinning in their graves. The whole point of separating church from state is that we should not have to run our laws past a council of unelected bishops.

The United States has a long history of making room for individual conscience, most notably in allowing conscientious exemption to a military draft. But recognizing the institutional conscience of a church would be something new and strange.

In the American legal tradition, a church’s rights are derived from the right of its members to believe as they will, to worship as they will, and to freely assemble. Any “institutional right” that can’t be so derived is alien to us.

I found this spelled out quite clearly in the 1949 book Cornerstones of Religious Freedom in America by Joseph Blau (which also provided this week’s Sift quote):

Much as business corporations in the United States have battened on their fictitious legal status as corporate persons entitled to individual rights under the “due process” clause, churches — religious corporations — are able to grow overweening and oppressive if their claim to legal status as corporate persons under the First Amendment is granted. “Due process” for corporate persons has produced the legal anomaly of violation of the rights of the very individuals whom the due process clause was intended to protect. Religious freedom for religious corporations, if it is allowed, will end in the trampling of the religious freedom of the individual under the marching feet of a remorseless and self-aggrandizing hierarchy.

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Comments

  • Kim Cooper  On February 15, 2012 at 2:03 am

    Makes you want to move to a country that really has “freedom”….

  • I A N P M F (@IANPMF)  On February 16, 2012 at 7:09 am

    Great piece. Unfortunately the winds are blowing in the direction of institutional personhood and institutional rights more generally – i.e. the unanimous Hosanna-Tabor decision. You might be interested in my blog. http://ianpmf.tumblr.com/

    • weeklysift  On February 16, 2012 at 8:45 am

      Your blog “Institutions Are Not People, My Friend” does look interesting. I’ll take a more leisurely look around later today.

      • I A N P M F (@IANPMF)  On February 16, 2012 at 11:04 am

        Thanks. I’m trying to collect information about these kinds of issues in one place. I’ve queued a link to this article up for next week.

Trackbacks

  • By Back to the Culture Wars « The Weekly Sift on February 13, 2012 at 12:57 pm

    […] Religious Corporate Personhood. The institutional-religious-liberty principle Catholic bishops are claiming is foreign to the American legal tradition, and would have appalled the authors of the First Amendment. […]

  • […] In previous posts about the Catholic hierarchy’s War on Obama, I have restrained myself from bringing up the Church’s sexual-abuse scandal. A lot of people do, and most of the time I wince, because it’s a cheap shot. […]

  • By The Long View « The Weekly Sift on February 20, 2012 at 10:48 am

    […] week’s most popular post. What Abortion Means to Me got 488 views. Religious Corporate Personhood also did well, with 277. The most-clicked link was the cartoon Religious Exemptions for Piety and […]

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