Do Corporations Have Religious Beliefs?

I don’t know the legal answer to that question – if it has been squarely addressed before, but the Hobby Lobby case was argued to the Supreme Court today and the question came to mind again. The ACA requires that if a corporation provides compensation to its employees in the form of health insurance benefits that the insurance include, among other things, coverage for contraception. The owners of the shares in Hobby Lobby Stores, Inc. oppose on religious grounds certain IUDs and pills that prevent impregnation of a fertilized egg into the uterus.

In my mind, corporations are incapable of belief and the religious beliefs of individuals are distinct from the religious beliefs of the corporations in which they have an ownership interest.

Corporations are a government created legal fiction designed to limit personal responsibility. There is obviously utility to the corporate structure. But, I don’t understand how religious beliefs can get through the corporate shield but personal liability cannot.

I could probably get behind allowing individual owners to abandon the corporate form and exercise their religious beliefs to avoid the contraception mandate if they felt that strongly about it. Or, better yet, go single payer and disassociate insurance and employment altogether.


On the Contraception Insurance Coverage Issue

Given the outrage from the perpetual outrage machine and some of the not so perpetually outraged, I thought I should take a look at the Health and Human Services rule that has the Catholic bishops so worked up.

Apparently what is going on is this. The Affordable Care Act specifies that a group health plan and a health insurance issuer offering group or individual health insurance coverage must provide benefits for and prohibit the imposition of cost-sharing with respect to:

Evidence-based items or services that have in effect a
rating of A or B in the current recommendations of the United States
Preventive Services Task Force (Task Force) with respect to the
individual involved.

Clear as mud so far. But, basically, the Task Force was charged with recommending the most important services or items that had to be covered by group health plans without requiring cost sharing by the insured. As part of this process, the Health Resources and
Services Administration was tasked with developing comprehensive guidelines for preventive care and screenings with respect to women. (See HHS docket HHS-OS-2011-0023-0002). As part of that process:

Most commenters, including some religious organizations, recommended that HRSA Guidelines include contraceptive services for all women and that this requirement be binding on all group health plans and health insurance issuers with no religious exemption. However, several commenters asserted that requiring group health plans sponsored by religious employers to cover contraceptive services that their faith deems contrary to its religious tenets would impinge upon their religious freedom.

These guidelines apply to non-grandfathered group health plans and health insurance issuers. HHS didn’t go quite as far as HRSA recommended, deciding instead to offer exemptions for certain (but not all) religious institutions. The exemption applies to a religious employer that:

(1) Has the inculcation of religious values as
its purpose;
(2) primarily employs persons who share its religious
(3) primarily serves persons who share its religious tenets;
(4) is a non-profit organization under section 6033(a)(1) and
section 6033(a)(3)(A)(i) or (iii) of the Code. (Section 6033(a)(3)(A)(i) and (iii) refer to churches, their integrated auxiliaries, and
conventions or associations of churches, as well as to the exclusively religious activities of any religious order.

HHS explained that its intent was “to reasonably balance the extension of any coverage of contraceptive services under the HRSA Guidelines to as many women as possible, while respecting the unique relationship between certain religious employers and their employees in certain religious positions.”

HHS did not come up with this in a vacuum. Once they decided that contraception was an important part of a woman’s health care, they looked to the States that had also made that determination to see how they handled religious exemptions. Here is a chart. Eight of those states provided more expansive religious exemptions than those adopted by the HHS rule. The remainder were similar to or more restrictive than HHS. If I’m reading the chart correctly, Colorado doesn’t allow any exemptions. Arizona, California, New York, and Oregon are less permissive with religious exemptions than the HHS rule. Arkansas, Maine, Massachusetts, Michigan, New Jersey, North Carolina, and Rhode Island have exemptions comparable to the HHS rule. And, Delaware, Hawaii, Illinois, Maryland, Missouri, Montana, and New Mexico have a more expansive exemption. Interestingly, Connecticut seems to require that, if there is a religious objection, the entity can opt to provide the required contraceptive coverage through a subcontractor or third party insurer.

I’ll just leave it at that for now. I might get into a more general discussion about morality and contraception later.

Update I recalled that the Supreme Court had recently decided a case that had something to do with a religious organization’s duty as an employer to abide by the employment laws that apply to everyone else and the special privileges it enjoys with respect to such laws because of its status as a religious organization. It wasn’t necessarily on point, but it gave me the overview on how the Court thinks of such things. The case was Hosanna-Tabor Evangelical Lutheran Church v. EEOC. The court there recognized a ministerial exception allowing churches to choose their ministers in violation of the Civil Rights Acts.

But, in the context of this contraception issue, I thought these paragraphs were fairly useful:

The EEOC and Perich also contend that our decision in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), precludes recognition of a ministerial exception. In Smith, two members of the [*15] Native American Church were denied state unemployment benefits after it was determined that they had been fired from their jobs for ingesting peyote, a crime under Oregon law. We held that this did not violate the Free Exercise Clause, even though the peyote had been ingested for sacramental purposes, because the “right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” Id., at 879 (internal quotation marks omitted).

It is true that the ADA’s prohibition on retaliation, like Oregon’s prohibition on peyote use, is a valid and neutral law of general applicability. But a church’s selection of its ministers is unlike an individual’s ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself. See id., at 877 (distinguishing the government’s regulation of “physical acts” from its “lend[ing] its power to one or the other side in controversies over religious authority or dogma”).

(Emphasis added). I’d say that the HHS rule is focused on physical acts and, by providing an exception for churches themselves – as opposed to their less inherently religious activities like hospitals – is attempting to steer away from the faith and the mission of the church itself. The valid and neutral law is one of general applicability that prescribes activity that some churches proscribe. Seems like the kind of thing allowed under Smith.

Taibbi: Obama Administration Selling Out Cheap on Mortgage Crisis Wrongdoing

Matt Taibbi is reporting that the Obama administration is attempting to negotiate a resolution to potential liability on the part of major banks for their wrongdoing leading up to the mortgage crisis. According to Taibbi, compared to the damage caused, the settlement amount looks to be cheap. Standing in the way is New York Attorney General, Eric Schneiderman.

This second camp has all gotten together, put their heads together, and cooked up a deal that would allow the banks to walk away with just a seriously discounted fine from a generation of fraud that led to millions of people losing their homes.

The idea behind this federally-guided “settlement” is to concentrate and centralize all the legal exposure accrued by this generation of grotesque banker corruption in one place, put one single price tag on it that everyone can live with, and then stuff the details into a titanium canister before shooting it into deep space.
. . .
But New York’s Schneiderman, who earlier this year launched an investigation into the securitization practices of Goldman, Morgan Stanley, Bank of America and other companies, is screwing up this whole arrangement. Until he lies down, the banks don’t have a deal. They need the certainty of having all 50 states and the federal government on board, or else it’s not worth paying anybody off. To quote the immortal Tony Montana, “How do I know you’re the last cop I’m gonna have to grease?” They need all the dirty cops on board, or else the whole enterprise is FUBAR.

Taibbi describes some of the subsidiary things the banks are accused of (e.g. robo-signing perjury, MERS-related tax evasion) but identifies the central crime as dressing up junk bonds as AAA rated investments.

The banks lent money to corrupt companies like Countrywide, who made masses of bad loans and immediately sold them back to the banks. The banks in turn hid the crappiness of these loans via certain poorly-understood nuances in the securitization process – this is almost certainly where Scheniderman’s investigators are looking – before hawking the resultant securities as AAA-rated gold to fools in places like the Florida state pension fund.

Taibbi figures Obama’s motive in this to be fat campaign contributions if he can make the foreclosure mess go away for the banks.

Obama, Eisenhower, and Infrastructure

I had mentioned how I thought the current rash of bailout money was motivated by “starve the beast” impulses. In some ways, however, I wonder if it might have the opposite effect. Instead of making people think we don’t have the money to do anything else, it might instead make people think they were being lied to in the past — before the $700 billion — when they had been told that there wasn’t enough money with which to enact programs that might make their personal lives any better. (National health insurance being one of them.)

With the announcement of 500,000 jobs lost in November, the worst monthly job lost since the Ford administration, Barack Obama has announced plans for spending on infrastructure, the likes we haven’t seen since the Eisenhower administration.

The plan, as Obama laid it out Saturday, would include massive investments in roads and other infrastructure programs reminiscent of President Dwight D. Eisenhower’s highway program that employed millions of people and cost tens of billions of dollars. Obama said he would compel states to move quickly on construction projects or risk losing the help from the federal government.

“We will create millions of jobs by making the single largest new investment in our national infrastructure since the creation of the federal highway system in the 1950s,” he said. “We’ll invest your precious tax dollars in new and smarter ways, and we’ll set a simple rule – use it or lose it. If a state doesn’t act quickly to invest in roads and bridges in their communities, they’ll lose the money.”

Obama said his plan would include a push to make federal buildings more energy efficient by installing new heating systems and energy-saving light bulbs, a plan that, he said would save billions of taxpayer dollars and “put people back to work.”

Additional provisions would upgrade public school buildings, enhance broadband technology and create a system to ensure that Americans have access to electronic medical records.

I was debt averse by nature before becoming employed and being a debt collector has multiplied that aversion. Intellectually, I know that investing in infrastructure and other capital can result in long term benefits that outweigh the debt incurred. On a more visceral level, I don’t quite feel it. Still, Obama’s plan to invest in roads, bridges, and other tangible things is a lot more comforting to me than throwing money at banks chasing toxic paper or other investment instruments. If a state takes money for a road, and no pavement gets laid, I can pretty comfortably know that something went very wrong. If a bank takes money and does nothing but pay executive bonuses and the toxic paper remains toxic, I’ll be none the wiser.