Here's a long excerpt from today's column (emphases added):
"The element of the Court’s decision that most perturbed many liberals—the suggestion that corporations could effectively be bearers of rights—was actually the least controversial question among the justices themselves. Only two of the nine justices, Ginsburg and Sotomayor, argued that for-profit corporations could not be considered legal persons capable of exercising religion for purposes of the Religious Freedom Restoration Act. The other two liberal justices, Breyer and Kagan, declined to join that part of the dissent written by Justice Ginsburg (though they articulated no view of their own on the question), and the remaining five justices affirmed the view that rights could indeed be mediated, and so in effect put into practice, through and by for-profit corporations. .
In one sense, this is a rather obvious point. As Justice Alito argued forcefully in his majority opinion, there is no reason why people should be expected to give up their basic rights when they incorporate a business. And Justice Ginsburg’s attempt to distinguish between profit-seeking and non-profit corporations on this front, made necessary by the fact that the administration did recognize the religious-liberty claims of some corporations and not others in this case, was the very model of a muddle. (It wasn’t as disturbing as her shockingly thin idea of what constitutes religious practice, though, and of what religious institutions are for.)
But in another sense, the standing of institutions, as opposed to individuals, as bearers of rights in our civil society is a complex and much-contested question, and a very important one. This is particularly so with regard to the exercise of religion, where we are the inheritors of a long tradition—the English common-law tradition of religious toleration—that has a very mixed record when it comes to protecting institutions rather than individuals.
I’ve taken up this question a couple of times around here in recent years, but to put matters very (very) simply, that tradition was born of efforts to find a way to provide protection for Jews and protestant dissenters in a nation with an established church but specifically not to provide much protection for Catholics. It did this in large part by distinguishing between individuals and institutions. Catholicism is an exceptionally institutional religion, with massive charitable and educational arms that are Catholic but are not houses of worship and that not only employ but also serve non-Catholics. Such arms are much more rare in other religious traditions, and used to be even more so. This distinction therefore in effect once allowed for broad toleration of just about all religious minorities in Britain except Catholics. It was supported by a line of reasoning evident over centuries, and given expression even in John Locke’s great Letter Concerning Toleration, which is one of the foundational documents of the intellectual tradition of liberal toleration.
The American offshoot of this tradition of toleration has tended to think a little differently about this question, above all because we have not had an established church in the United States. We have tended to take the absence of an Anglican monopoly on legitimate religiously-rooted social institutions to mean not that there could be no such institutions at all but rather that different communities of faith could build out different institutional forms and stake out for themselves a variety of roles in civil society and the private sphere. This has meant seeing some groups of people working together, and not just individuals alone, as protected by the various forms of the right of conscience and accepting as legitimate the idea that groups of people, as well as individuals, should whenever possible be protected from forms of coercion or restraint that violate their religious beliefs. And the extension of this attitude to corporations owned and run by people with religious convictions and in the service of those convictions has been perfectly natural.
The Obama administration has been pushing up against this American form of the tradition of religious toleration (which, being Americans, we tend to call “religious liberty”) in an effort to establish a public monopoly on the aims of social action. American progressivism has always wanted to clear out the space between the individual and the state and to confer rights only on individuals, rather than encouraging people to form complex layers of interacting institutions with diverse views of the good that each pursues with vigor and conviction. The HHS mandate, like so much of the administration’s domestic agenda, is intended to turn the institutions in that space, including private corporations, into arms of the government, carrying out the will of those in power."
"The element of the Court’s decision that most perturbed many liberals—the suggestion that corporations could effectively be bearers of rights—was actually the least controversial question among the justices themselves. Only two of the nine justices, Ginsburg and Sotomayor, argued that for-profit corporations could not be considered legal persons capable of exercising religion for purposes of the Religious Freedom Restoration Act. The other two liberal justices, Breyer and Kagan, declined to join that part of the dissent written by Justice Ginsburg (though they articulated no view of their own on the question), and the remaining five justices affirmed the view that rights could indeed be mediated, and so in effect put into practice, through and by for-profit corporations. .
In one sense, this is a rather obvious point. As Justice Alito argued forcefully in his majority opinion, there is no reason why people should be expected to give up their basic rights when they incorporate a business. And Justice Ginsburg’s attempt to distinguish between profit-seeking and non-profit corporations on this front, made necessary by the fact that the administration did recognize the religious-liberty claims of some corporations and not others in this case, was the very model of a muddle. (It wasn’t as disturbing as her shockingly thin idea of what constitutes religious practice, though, and of what religious institutions are for.)
But in another sense, the standing of institutions, as opposed to individuals, as bearers of rights in our civil society is a complex and much-contested question, and a very important one. This is particularly so with regard to the exercise of religion, where we are the inheritors of a long tradition—the English common-law tradition of religious toleration—that has a very mixed record when it comes to protecting institutions rather than individuals.
I’ve taken up this question a couple of times around here in recent years, but to put matters very (very) simply, that tradition was born of efforts to find a way to provide protection for Jews and protestant dissenters in a nation with an established church but specifically not to provide much protection for Catholics. It did this in large part by distinguishing between individuals and institutions. Catholicism is an exceptionally institutional religion, with massive charitable and educational arms that are Catholic but are not houses of worship and that not only employ but also serve non-Catholics. Such arms are much more rare in other religious traditions, and used to be even more so. This distinction therefore in effect once allowed for broad toleration of just about all religious minorities in Britain except Catholics. It was supported by a line of reasoning evident over centuries, and given expression even in John Locke’s great Letter Concerning Toleration, which is one of the foundational documents of the intellectual tradition of liberal toleration.
The American offshoot of this tradition of toleration has tended to think a little differently about this question, above all because we have not had an established church in the United States. We have tended to take the absence of an Anglican monopoly on legitimate religiously-rooted social institutions to mean not that there could be no such institutions at all but rather that different communities of faith could build out different institutional forms and stake out for themselves a variety of roles in civil society and the private sphere. This has meant seeing some groups of people working together, and not just individuals alone, as protected by the various forms of the right of conscience and accepting as legitimate the idea that groups of people, as well as individuals, should whenever possible be protected from forms of coercion or restraint that violate their religious beliefs. And the extension of this attitude to corporations owned and run by people with religious convictions and in the service of those convictions has been perfectly natural.
The Obama administration has been pushing up against this American form of the tradition of religious toleration (which, being Americans, we tend to call “religious liberty”) in an effort to establish a public monopoly on the aims of social action. American progressivism has always wanted to clear out the space between the individual and the state and to confer rights only on individuals, rather than encouraging people to form complex layers of interacting institutions with diverse views of the good that each pursues with vigor and conviction. The HHS mandate, like so much of the administration’s domestic agenda, is intended to turn the institutions in that space, including private corporations, into arms of the government, carrying out the will of those in power."
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