It used to be the case that members of the Society of Jesus could be expected to offer their opinions about the issues of the day in the pages of America Magazine in a thoughtful and restrained manner in accord with their apostolic purpose: to strive for the defense and propagation of the faith and for the progress of souls in Christian life and doctrine—all done to serve the Lord under the Roman Pontiff. Not so in the age of the blogger/priest/activist as evidenced by a recent post at the America website by John D. Whitney, S.J. (here) criticizing the Supreme Court’s recent decision in Burwell v. Hobby Lobby. From what I can tell, Fr. Whitney is neither a lawyer nor a political scientist. (Certainly his comments on Hobby Lobby do not reflect the thoughtfulness that ought to come with this kind of professional training). Of course, one does not need to possess these kinds of formal credentials in order to comment on a Supreme Court opinion, but to do so intelligently one’s work must be invested with the rigor that the subject demands. When, in addition, one is also a member of the Society of Jesus, this responsibility is intensified by the objective of serving the Church consistent with the purpose of the Society.
Sadly, these qualities are absent from Fr. Whitney’s remarks, and these absences lead him to offer a conclusion that can aptly be described as over-the-top. For Whitney the Hobby Lobby decision “ascribe[s] to a corporation the basic rights of a human being” and this is “a type of idolatry” and “the ultimate effect of decisions such as Hobby Lobby and Citizens United” is to not only “grant disproportionate rights to the owners of corporations, but also to eradicate the distinction which raises the human person above a merely legal creation.”
The first indication that Fr. Whitney has not really invested his post with the serious thought that the subject matter requires is his casual assumption that the drugs and medical services at issue in the case were merely contraceptive in effect and not genuinely destructive of nascent human life. He does so in a backhanded fashion through use of the subjunctive: “Even if one opposes the contraceptive methods [sic] which are the source of the Hobby Lobby case – believing they are not contraceptive at all but the cause of early term abortion . . . .”
The Court demurred on the issue of whether the four methods to which Hobby Lobby objected – the drugs Ella and Plan B, and the Copper IUD and the IUD with progestin – were abortifacient in nature as the resolution of this factual question was not necessary to the Court’s analysis in applying RFRA. Although the proponents of these various methods have argued that they are not abortifacient in nature (here), had Fr. Whitney bothered to investigate the matter he would have discovered that the bulk of scientific evidence indicates that the methods at issue in the case can operate in an abortifacient fashion. (See the article here citing to the specific scientific literature). That is, while some of these methods may work to prevent the creation of a human embryo by preventing ovulation, they are also known to cause the destruction of human embryos that have already formed through the meeting of sperm and ova. They can work to bring about the demise of the human embryo by preventing uterine implantation, or causing the expulsion of the embryo following implantation by preventing maturation of the uterine endometrium.
Why Fr. Whitney would uncritically repeat (even if only in a backhanded fashion) the talking points of those who both oppose religious liberty and support the culture of death is a mystery, but it cannot be attributed to a careful reading of the available scientific literature.
The bulk of Fr. Whitney’s post focuses on his quite uncontroversial claim that corporations are “legal fictions created to protect individuals from liability and risk.” Of course this general description applies whether the entity is for-profit or not-for-profit. Whitney says that protecting individuals from liability and risk is designed “to encourage investment and economic development” when in fact this feature of the corporate form goes beyond business entities oriented toward for-profit investment.
Here it is worth recalling that local churches (dioceses), religious institutes (orders of vowed religious) as well as hospitals, universities and charitable organizations that operate under church-sponsorship are organized as corporations. This is something that Fr. Whitney surely knows since the Oregon Province of the Society of Jesus is a corporation (an Oregon domestic non-profit religious corporation) that he headed for six years as provincial superior. Indeed, the Oregon Province is a corporation under civil law and an ecclesiastical entity and juridic person under canon law.
Whitney says that, as creatures of the state, the rights of corporations were historically “determined by the legislature” but that these rights “were not seen as intrinsic.” He contrasts the Lockean understanding of rights as a matter of public contract (which make rights a matter of prudence “contingent on the perceived needs of the group”) with the Catholic tradition according to which “fundamental rights are not granted by the state nor by the majority but by God.” From this perspective rights enable men and women to fulfill God’s call and “pursue the good life of communion and justice.” Whitney’s concern is that “granting the rights of citizens to corporate structures . . . means that the owners are somehow given disproportionate power, and the rights of those with wealth supersede the rights of those without.” Indeed, he fears that this gives the owners of corporations “a double-dose of rights” and that this places “their rights over and above the rights of employees and ordinary citizens.” He says that the effect of the Court’s decision is to give a “fictional entity the authority to make moral decisions on behalf of natural persons.”
Several things could be said in response to this.
(1) First, Hobby Lobby is very much in keeping with the recognition of corporate entities as creatures of the state whose rights are subject to legislative control. Indeed, the Hobby Lobby decision is an exercise in statutory interpretation in which the Court concluded that, by its own terms, RFRA applies to “persons” and that Congress intended the term to include not only individuals (i.e., natural persons) but entities such as corporations, partnerships and associations, which are legal persons. Congress is of course free to amend the statute if it so chooses, and some Democratic members of Congress have already proposed doing so.
(2) Fr. Whitney refers to the status of corporations as “legal fictions” and as “fictional entities.” This description is undoubtedly true insofar as such entities are not flesh-and-blood human beings. A corporation does enjoy a kind of legal personality, however, and this is a “fiction” insofar as it is not a natural person, but it is and remains a legal person that has many of the rights and obligations under the law that natural persons possess.
But the rhetoric of “legal fiction” should not obscure the underlying reality. Corporations, partnerships, associations and other organizations are entities constituted by individuals. Whether a for-profit corporation like Hobby Lobby or a not-for-profit corporation like the Oregon Province of the Society of Jesus, these entities are collections of persons. Indeed, operating under Christian inspiration, a business can be a genuine community of persons dedicated to the common goal of the business venture. It is very much a part of the Catholic tradition, and the Catholic understanding of how a well-ordered society ought to be structured, that individuals and groups have the freedom to come together to form “intermediate organizations” including businesses engaged in the provision of goods and services.
Moreover, corporations may reflect moral values in how they conduct their affairs – whether in implementing certain “green” practices as the Hobby Lobby majority noted (Slip Op. at 23), hiring for “diversity,” or refusing to do business with companies overseas that employ child labor. Through the conscience of its owners and managers a corporation can reflect moral and religious values in how it does business.
As such, the corporate form and other organizational arrangements (e.g. partnerships, unions, associations, dioceses, and religious institutes) are merely the legal conventions available within our legal system that enable individuals to exercise their legal rights – including their God-given natural right to religious freedom – when they enter into the marketplace and civil society. “Freedom of religion” is much broader than the “freedom of worship” that the Obama administration has championed before the Supreme Court. It is not limited to prayer, rituals, and Sabbath observance. It is the freedom to go out into the world – including the marketplace – where one’s faith is lived, where one can witness that faith to others. It includes the right to have and live a vocation – not in the narrow sense of ordained ministry but in the copious understanding of Vatican II. (One can see these principles at work in the Oregon Province’s own plan for reorganization available on its website (here) wherein it claims rights and obligations under the civil law).
Here it is worth recalling that the Council urged all Christians to live out the call to holiness, “to strive to discharge their earthly duties conscientiously and in response to the Gospel spirit” (Gaudium et Spes ¶ 43). It decried the “false opposition between professional and social activities on the one part, and religious life on the other” (Id.). Indeed, Vatican II taught that “[t]he split between the faith which many profess and their daily lives deserves to be counted among the more serious errors of our age” (Id.).
It was, said the Council, a grave mistake for people to “think that religion consists in acts of worship alone and in the discharge of certain moral obligations” or to “imagine [that men and women] can plunge themselves into earthly affairs in such a way as to imply that these are altogether divorced from the religious life” (Id.).
Thus, the Council taught that in living out the Christian vocation in various walks of life, lay men and women “are not only bound to penetrate the world with a Christian spirit. They are also called to be witnesses to Christ in all things in the midst of human society” (Id.). The Council urged that “[i]n the exercise of their earthly activities” Christians can “gather their humane, domestic, professional, social, and technical enterprises into one vital synthesis with religious values, under whose supreme direction all things are harmonized unto God’s glory” (Id.).
The notion that a business owner must forfeit his or her religious way of life by going into business and adopting the corporate form is incompatible with Vatican II’s understanding of the Christian vocation in the midst of the world.
(3) For these reasons, the owners of businesses do not receive a “double-dose of rights” under the Hobby Lobby decision. They are not granted the same rights twice. Rather, the decision merely restores to these owners the right that the government had sought to take away from individuals who enter into the marketplace and make use of the corporate form.
Similarly, the Jesuits who are members of Oregon Province of the Society of Jesus do not enjoy a “double-dose” of legal rights simply because they have taken advantage of the corporate form by establishing a juridic person. The creation of such an entity is surely a way of limiting individual liability, but it also represents the common sense conclusion that some things simply cannot be accomplished as individuals. They require a collaborative effort.
To see the Court’s decision as granting corporate owners a “double-dose of rights” one must subscribe to the view advanced by the Obama administration that people lose their rights when they adopt the corporate form as a means of conducting their affairs in the world, or (more narrowly) that they lose these rights when they enter the marketplace as business entities that are for-profit enterprises. But as noted above, this is a view of the human person and his or her vocation in the world that is decidedly at odds with the vision of the Council and, one might add, the grand tradition of Catholic moral theory and canon law.
(4) The respective rights of distinct individuals inevitably come into conflict. But this takes place irrespective of the corporate form or the recognition organizations as entities that can engage in the “exercise of religion.” Suppose that Hobby Lobby had not been a large national corporation, but an unincorporated sole-proprietorship (a “mom-and-pop store”), and that the HHS mandate was not limited to companies with fifty or more employees but applied to all employers. If the sole-proprietor running the store objected to the mandate on the same grounds as the actual plaintiffs in Hobby Lobby, the same conflict of rights would arise: the right of the employee to a government mandated benefit provided at the employer’s expense, and the right of the employer to the free exercise of religion. The prevalence of the corporate form and the recognition of corporations as possessing a right to religious freedom may make this sort of conflict more common (though I doubt it), but this is a tension that is unavoidably present in a society marked by pluralism.
It may be possible, under some circumstances, for the rights of both parties to be respected. If there is some other “less restrictive means” through which the government may accomplish its objectives, then it is free politically to pursue this as an option going forward – a point underscored by the Hobby Lobby majority (Slip Op. at 40-43).
(5) Fr. Whitney’s claim that the effect of Hobby Lobby is to give a “fictional entity the authority to make moral decisions on behalf of natural persons” grossly mischaracterizes the Court’s decision. The case does not stand for the proposition that an employer may decide whether or not an employee uses contraception.
With respect, to say so is to simply mimic the talking points of Planned Parenthood and other actors in the “reproductive health” industry. Contrary to Whitney’s assertion, an employee of Hobby Lobby today is just as free to choose to use contraceptives or abortifacient drugs as before the decision. The difference is that the federal government may not appropriate a religiously inspired business for its own purposes and coerce the company’s owners into cooperating with actions to which the owners object on religious grounds. The holding is not that employers can now make health care decisions for their employees, but that the government cannot force an employer to pay for its employee’s use of abortifacient drugs and other techniques.
(6) Whitney says that the Catholic tradition “has long supported both negative rights, such as personal liberty, and positive rights, such as basic health care.” Elsewhere he notes that his discussion “radically oversimplifies a complex group of theories.” Fair enough, but here Whitney’s oversimplification is seriously misleading. The Catholic tradition does not believe that anyone has a negative right in personal liberty to engage in actions that kill innocent human life, even if that life is in the embryonic stage. Likewise, while the Catholic Church in the U.S. has long been supportive of a positive right to “basic health care” it does not regard contraception – let alone abortifacient drugs and other techniques that lead to the destruction of innocent, nascent human life – as “health care” at all, basic or otherwise. Contraceptives as such do not address any physiological or other medical malady in the human body, and abortifacients do not work to preserve human life. On the contrary, they act to destroy it.
In sum, Whitney’s hyperbolic conclusion – that recognizing organizational entities as possessing “the basic rights of a human being” is “a type of idolatry” misses the mark by a wide margin. The rights of natural and juridic persons to maintain and adhere to a moral code consistent with the common good is not idolatry but an authentic exercise of religious freedom. Hobby Lobby does not mistake an inanimate legal fiction for a real flesh-and-blood human being. Instead, it recognizes Congress’ conclusion that a person does not forfeit his or her rights by engaging in business and adopting the corporate form.
It is certainly true that idolatry exists today and that it surrounds much of American business. The false idol of business is the profoundly mistaken belief that what is truly important in life (what is worth sacrificing one’s life for) is the accumulation of wealth and power. But that is not what the Hobby Lobby case is about. Instead, it is about the use of the corporate form to exercise religious liberty – something, one would think, a Catholic priest would strongly support.
If Fr. Whitney is truly concerned about vanquishing the idols of our day, there exists a whole pantheon against which he could direct his ire, including the idol of immorality that the culture celebrates as sexual liberation and the fulfillment of personal autonomy. Perhaps this is unlikely (see here, here, here, and here) as Fr. Whitney appears to think that the Catechism is something that ought to be ignored (except where he thinks it ought to be followed, see here), but one can hope and pray that this member of St. Ignatius’ little company will come to embrace the full teaching of Christ’s Church by striving to defend and propagate the faith for the progress of souls in Christian life and doctrine.
