Obama, God, and the Profits

A surprising and public rift opened up has opened up between President Obama and his lawyers over whether profit-making businesses can pursue goals other than making money, including adhering to religious requirements.

In courtrooms across the country-including one recently in Philadelphia-Department of Justice lawyers told judges that profit-making businesses with religious objections to the HHS contraceptive mandate cannot exercise religion. Profit-making business apparently can pursue just one goal: making money. Business owners must check their religious values at the door.

Yet, President Obama offered the opposite message to a group of men graduating from Morehouse College. He urged them to forge careers in business, but to avoid focusing solely on profits. Instead, they should consider "what broader purpose your business might serve" by pursuing values other than profits, like "transforming a neighborhood." The President's comments echoed his remarks last year at the National Prayer Breakfast, where he proclaimed that leaving our "values at the door" would "abandon much of the moral glue that has held our nation together for centuries."

The President is right and his lawyers are wrong.

Businesses act on principles beyond the pursuit of profit every day. Vegan markets refuse to sell animal products because they are ethically opposed to hurting animals. Some employers have long provided benefits to same-sex partners based on the moral view that doing so is right and just. Some investment funds refuse to invest in fossil-fuel companies because they view them as destructive. Businesses following moral, ethical, philosophical, and environmental principles are all around us.

Similarly, some businesses operate according to religious principles. The Hahn family are Mennonite Christians who run Conestoga Wood, a cabinet-making company in East Earl, PA. They have long followed the President's admonition to consider the "broader purpose" their business might serve, and to avoid leaving their "values at the door." Yet now, Department of Justice lawyers who've told judges that because their company earns money, the Hahns cannot follow their religion while they work. The government seeks to impose crushing fines on the Hahns ($95,000 dollars every day) unless the Hahns will start violating their religion and paying for drugs that they believe cause abortions.

The lawyers have it all wrong. Earning money doesn't suddenly give the government the right to extinguish your constitutional rights.

The New York Times Company is a profit-making corporation, but it obviously has free speech rights. Many doctors provide abortions for profit, but of course the government could not stop them just because they make money. We don't trade in our constitutional rights when we earn a living.

Of course this does not mean that we will soon see large publicly-traded companies claiming to exercise religion. A religious freedom claim requires a showing of sincere religious practice-which is easy for the Hahns, but virtually impossible for a large, publicly-traded corporation like an IBM, where control is shared among thousands of shareholders. This explains why all of the challenges to the HHS Mandate have been by closely held family businesses, and none have been by publicly-traded companies.

Nor is there any risk that decisions in HHS Mandate cases will trigger a sudden spike in businesses claiming to exercise religion-the Supreme Court approved of religious exercise claims for sole proprietors more than thirty years ago, and such cases remain few and far between.

Nor does protecting religious exercise for people engaged in business mean that religious values must trump all others in our society. Religious claimants will still lose when the government offers actual proof that it really needs to burden the religious objector-something it has not done so far in the Hahns' case or any of the HHS Mandate cases. The key is that the religious freedom claims will be determined based on whether there is a real religious exercise, and how strong the government's evidence is in response-and not based on whether the people or organizations involved make money.

So the men of Morehouse can safely follow the President's advice, secure in the knowledge that they do not forfeit their constitutional rights when they earn a living, and that they are allowed to pursue "broader purposes" while they do so.

And the President could help them in their pursuit by sending a copy of his commencement address over to the Department of Justice.

Mark L. Rienzi is Senior Counsel at the Becket Fund for Religious Liberty, a law professor at The Catholic University of America, and author of God and the Profits: Is There Religious Liberty for Money-Makers? (forthcoming George Mason Law Review, 2013).

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