Sebelius v. Hobby Lobby Stores, Parts II and III: Dissenting and Concurring Opinion
Kowal, J., dissenting in part and concurring in part:
I write separately below. In short, the Greens elected to exercise their unalienable right of conscience through the corporate form. Their corporate form, expressing a unity of interest and conscience with the Greens, must have standing to enforce that right on their behalves.
[An early draft of this opinion was included in error in Part II.]
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The right of conscience “is unalienable,” wrote James Madison, “because what is here a right towards men, is a duty towards the Creator.” John Leland, an abolitionist minister and Madison supporter, wrote in the months before the First Amendment’s adoption:
“Every man must give account of himself to God, and therefore every man ought to be at liberty to serve God in a way that he can best reconcile to his conscience. If government can answer for individuals at the day of judgment, let men be controlled by it in religious matters; otherwise, let men be free.”
Martin Luther King, Jr., drawing from St. Augustine, explained that by obeying conscience we are “expressing the highest respect for law.” Conscience connects us with the divine as each finds it. And through that connection, it imposes duties. What is commonly called the “right” of conscience is merely the space in mortal affairs to discharge the sacred duties it imposes. The duties being undeniable, the corresponding rights are unalienable.
Americans have been serving conscience corporately since the very beginning. Earlier, in fact. Lord Coke included corporations among “persons” deserving legal protections. Blackstone listed “advancement of religion” first on the list of purposes corporations may rightly pursue. The Pilgrims declared the spread of the “Christian Fayth” among the express purposes of their for-profit Massachusetts Bay Company. Dun & Bradstreet’s predecessor in the early 19th century was founded to promote religious values of frugality and honesty, and to subsidize its owners’ abolitionism. And in the struggle for civil rights, the Court observed the “freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the[ir] ‘liberty,’” and “it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters.” NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958).
The more things change the more they stay the same. Today the Dictionary Act has found little to improve upon in Lord Coke’s definition. Our First Lady acknowledges that religion is not to be compartmentalized: “Our faith journey isn’t just about showing up on Sunday,” she said, and “Jesus didn’t limit his ministry to the four walls of a church.” Illustrating her point, the Catholic Church operates numerous hospitals and schools under the corporate form, and the University of Notre Dame employs more than 5,000 people and controls over $10 billion in assets, including a football team with a lucrative NBC contract. Their right to free exercise is doubted by no one.
Yet here, the Government would deny that protection to the Greens. It would deny it because, according to the Government, the mandate the Greens sincerely believe unjustifiably ends innocent human life “imposes no personal obligations on the Greens; it instead regulates only the corporations they own.” The Greens disagree, and their sincerity is beyond doubt. Unless the “government can answer for [the Greens] at the day of judgment,” its assurance is perfectly meaningless.
The Government may not substantially burden the Greens’ right to fulfill the “duty towards their Creator” without satisfying the Court’s strict scrutiny.
Having decided a protected right exists, there is a subsidiary issue whether the corporation or the individuals have standing to enforce it. The manner of exercise suggests the manner of enforcement. Requiring each of the Greens individually to enforce what they seek to exercise corporately makes little sense. Suppose one of the Greens drops the objection to one of the contraception drugs. Or to all the drugs. Do the Greens’ rights stand together lest they hang separately?
There is no need to develop new doctrine to answer these questions. Should any hypothetical conflicts arise among the Greens, the proximate interference with individual free exercise would be the corporation, not the government. And if after resort to their bylaws and other rules of internal operations any of them differs with Hobby Lobby’s official position, it will be the corporation interfering with conscience. The Constitution and RFRA guarantee only against government interference.
There is no need to complicate matters by atomizing what the Greens regard as corporate. The Greens have established a unity of interest with Hobby Lobby such that their individual and corporate consciences are the same, making Hobby Lobby their “alter superego.” Hobby Lobby has standing to assert the Greens’ free exercise and RFRA claims.
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