The paradox of religious freedom and governmental neutrality toward religion is not new; it’s embedded in America’s DNA in the First Amendment, which guarantees the free exercise of religion and prohibits the government from establishing or even endorsing religion.
What is new is the question of whether a business, rather than church or a person, can exercise religion. Businesses must have a right to communicate with the public, and it seems necessary to me that the First Amendment’s speech protection applies to them — though there are many reasonable questions about how far this protection should extend.
The religion clauses are trickier. The Establishment Clause requires government not to take sides in religious disputes, but there are some cases that courts, in particular have to decide: When two parents of differing religious beliefs divorce, can a court enforce one parent’s veto of the other’s decision about taking the children to church, or raising them as non-believers? If there is a dispute between two Jewish business owners over what is kosher, should a court of law be able to decide which one is right? These are hard questions.
For lesbians and gay men, though, it is the Free Exercise Clause that is most difficult right now. There is no doubt that individuals must be free to exercise their religion without government interference. But is selling cakes the exercise of religion? Is anything a sincere religious believer does the constitutionally protected exercise of religion? If not, what are the limits?
More broadly, do businesses as businesses have the same kind of First Amendment right to exercise religion as they do to communicate under the Free Speech Clause? There is a particular subjectivity to the Free Exercise Clause. Under Establishment Clause rules, government must accept any sincere religious belief, even if it isn’t “acceptable, logical, consistent, or comprehensible to others.”
A sensible limit I see built into the Free Exercise Clause is that the exercise of religion, at least as the founders would have understood it, will tend to be with and among other believers. This is not a strict rule, since many activities of religious believers will take place in the broader world: caring for the sick or poor or elderly, for example. But in general, the exercise of religion is something more than just any activity motivated by a religious belief. I cannot drive my car in violation of the speed laws just because I sincerely believe (however illogical it seems) that the speed laws are a violation of the laws of God because biblical authority does not support them.
What we have today is a subset of believers who want to use sincerely held religious beliefs that are at the least controversial among a very large number of non-believers to avoid laws that apply broadly to all businesses. These laws were passed at the insistence of the gay community, but they are not an unmixed blessing.
As I’ve said before, while I remain doubtful as a constitutional matter that selling cakes and flowers or renting apartments is anything like the exercise of religion the First Amendment intended, I think it is better social policy to allow some business exercise of religion than for government to try to forbid it.
But I think a line can be drawn. Unlike individuals, businesses are not human beings; they are fictional “persons” for sensible legal and economic reasons. As such, they are constituted pursuant to legal processes that give the public notice of what they will do and how they will operate.
The almost complete deference that government gives to the personal exercise of religion respects the constitutional mandate prohibiting the government from establishing or favoring any particular religion (or no religion at all). That deference also respect the fact that people’s religious beliefs are always subjective, and even sometimes contradict their own church’s stance – as the Catholic Church well knows when it comes to same-sex marriage and contraception. Government has no business interfering with that.
If a business wants to engage in the exercise of religion, this deference to religion’s subjective nature presents unique challenges. The government cannot inquire into anything but the sincerity of religious beliefs, and that would have to apply to a business’s “beliefs.”
I think that can be managed consistent with the constitution if a business states up front in its incorporation papers (which establish the parameters under which the business will operate) that, among its other rules, it will operate pursuant to certain religious beliefs.
This will give the public notice that certain businesses, while not religious entities themselves, will be exempt from certain laws. Customers can choose how important, if at all, a religiously motivated business philosophy is to them. A publicly stated religious purpose will also serve as notice to potential employees that certain benefits (like contraceptive coverage) will not be provided.
It will take time and thought to develop such a policy. It may apply only to closely held businesses, for example, like bakeries and local florists, though in theory it could apply to larger companies. Such a rule would be a line that could be drawn in cases like Hobby Lobby v. Sibelius, where non-believing employees would have a clear understanding that certain kinds of contraceptive coverage would not be included in any benefit package. It could also identify businesses like Chik-Fil-A, if they determine that serving homosexuals is a violation of their religious rights. In the modern world, this would be a business risk, but it may be one companies ought to be able to take, and accept (or suffer) its consequences.
In addition, it is not immediately clear at what level of generality or specificity the religious statement would need to be drafted. A statement that the business would observe “Christian” principles would not be very helpful as notice to non-believers, since there are so many versions of Christian teaching and thought. On the other hand, the number of possible issues a religious business could address is nearly infinite, and notice to the public and other third parties normally requires a certain amount of specificity.
This is a problem inherent in the nature of any exercise of religion that implicates the rights of non-believing third parties. That, in itself, is a strong argument against this proposal. But since the religious landlord cases in the 1990s, it is clear that courts seem to accept some business exercise of religion. If that continues – as seems likely – it will make sense to think more deeply about what it means for businesses to be religious when they are dealing with the public at large.