DAVID GREEN, who built a family picture-framing business into a 42-state chain of arts and crafts stores, prides himself on being the model of a conscientious Christian capitalist. His 525 Hobby Lobby stores forsake Sunday profits to give employees their biblical day of rest. The company donates to Christian counseling services and buys holiday ads that promote the faith in all its markets. Hobby Lobby has been known to stick decals over Botticelli's naked Venus in art books it sells.
And the company's in-house health insurance does not cover morning-after contraceptives, which Green, like many of his fellow evangelical Christians, regards as chemical abortions.
"We're Christians," he says, "and we run our business on Christian principles."
This has put Hobby Lobby at the leading edge of a legal battle that poses the intriguing question: Can a corporation have a conscience? And if so, is it protected by the First Amendment.
The Affordable Care Act, a k a Obamacare, requires that companies with more than 50 full-time employees offer health insurance, including coverage for birth control. Churches and other purely religious organizations are exempt. The Obama administration, in an unrequited search for compromise, has also proposed to excuse nonprofit organizations such as hospitals and universities if they are affiliated with religions that preach the evil of contraception. You might ask why a clerk at Notre Dame or an orderly at a Catholic hospital should be denied the same birth control coverage provided to employees of secular institutions. You might ask why institutions that insist they are like everyone else when it comes to applying for federal grants get away with being special when it comes to federal health law. Good questions. You will find the unsatisfying answers in the Obama handbook of political expediency.
But these concessions are not enough to satisfy the religious lobbies. Evangelicals and Catholics, cheered on by anti-abortion groups and conservative Obamacare-haters, now want the First Amendment freedom of religion to be stretched to cover an array of for-profit commercial ventures, Hobby Lobby being the largest litigant. They are suing to be exempted on the grounds that corporations sometimes embody the faith of the individuals who own them.
"The legal case" for the religious freedom of corporations "does not start with, 'Does the corporation pray?' or 'Does the corporation go to heaven?' " said Kyle Duncan, general counsel of the Becket Fund for Religious Liberty, which is representing Hobby Lobby. "It starts with the owner." For owners who have woven religious practice into their operations, he told me, "an exercise of religion in the context of a business" is still an exercise of religion, and thus constitutionally protected.
The issue is almost certain to end up in the Supreme Court, where the betting is made a little more interesting by a couple of factors: six of the nine justices are Catholic, and this court has already ruled, in the Citizens United case, that corporations are protected by the First Amendment, at least when it comes to freedom of speech. Also, we know that at least four members of the court don't think much of Obamacare.
In lower courts, advocates of the corporate religious exemption have won a few and lost a few. (Hobby Lobby has lost so far, and could eventually face fines of more than $1 million a day for defying the law. The company's case is now before the Court of Appeals for the 10th Circuit.)
You can feel some sympathy for David Green's moral dilemma, and even admire him for practicing what he preaches, without buying the idea that la corporation, c'est moi. Despite the Supreme Court's expansive view of the First Amendment, Hobby Lobby has a high bar to get over — as it should.
For one thing, under Title VII of the Civil Rights Act — which was enacted at the behest of religious groups — companies cannot impose religious tests on their employees. They can't hire only Catholics, or refuse to hire Catholics. They cannot oblige you to practice the same faith their owners do. Companies are, by legal design, zones of theological diversity and tolerance. So Green, whose company is privately held, can spend his own money to promote his faith, but it would be an act of legal overreach to say that he can impose his faith on his employees by denying them benefits the government has widely required.
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