Religious Freedom Restoration Acts: What If Inclusion Really Is What They’re All About?

Many major corporations and conservative lawmakers were quick to embrace the amendment to Indiana’s RFRA, but that’s because it left intact the parts of the law that expand the religious rights of corporations.
By Joseph R. Slaughter ,

Indiana State Capitol in Indianapolis. (Photo: Massimo Catarinella/Wikimedia Commons)

I happen to be sitting at a desk from the Indiana General Assembly, mulling over the Indiana Religious Freedom Restoration Act. The desk is not in the state legislature; it’s an inherited desk, from another political era, given to my grandfather by the State of Indiana in recognition of 18 years of service in the House of Representatives when the chamber was remodeled in 1985. My grandfather began his political career during the Civil Rights era; he retired during the Reagan years.

As I read the Indiana RFRA, coverage of the protests against it, the amendment to “fix” it, and analysis of the social implications of the law, I can’t help but think of my grandfather and of how little he would recognize today’s debate and our degraded democracy.

He would have been appalled at the naked attempt to legalize discrimination against any portion of the population—LGBT or otherwise. But I believe he might have been even more outraged at the subtext of the law, the cynical manipulation of religious intolerance, and its veiled attempt to secure the civil rights of corporations. Indeed, when he retired (and later died) in the 1980s, he couldn’t have imagined the hostile corporate takeover of civil rights that has been underway in this country over the past three decades.

The Court determined that because Hobby Lobby was “closely held” by one family, the company shared its owners’ right to religion; the company is Christian, it concluded.

What if “inclusion” is as dangerous as discrimination?

Let’s be clear about these new RFRAs in Indiana, Arkansas, and elsewhere: they do indeed make it legal for private, for-profit businesses to discriminate against lesbians, gays, and others on “religious” grounds. But that may not be the primary purpose of such acts. Such laws feed on some people’s prejudices against a minority group to curry popular favor with another minority group; they use the fervor of fear and hatred to pass legislation that under more reasonable circumstances would find little support.

The Indiana RFRA is not simply “the product of a G.O.P. search for a respectable way to oppose same-sex marriage and to rally the base around it,” as Amy Davidson put it in the New Yorker. We need to look behind the religious fundamentalist intolerance of a powerful few to recognize that what’s afoot with these RFRAs is the dramatic expansion of the civil liberties of corporations in a coordinated corporate civil rights movement.

Perhaps this is why Indiana Governor Mike Pence was willing to walk back the discriminatory aspect of the bill in response to the public outcry. It’s not because he suddenly saw the light on gay rights. It’s because the parts of the law that aren’t being protested or receiving any notice accomplish something else that has far-reaching implications for our democracy.

Brian Bosma, speaker of the Indiana House (from where my desk was pulled), introduced a proposed amendment that would “fix” the law, explaining that “What was intended as a message of inclusion of all religious beliefs was interpreted as a message of exclusion, especially for the LGBT community.”

Bosma’s amendment (signed by Pence on Thursday) may address concerns about discrimination, but it leaves intact the provisions that expand and reinforce the precedent established by the United States Supreme Court decision in the Hobby Lobby case. In that case, the activist conservative judges on the Roberts Court pierced the corporate veil in order to grant religious freedoms to for-profit companies.

One reason for creating a corporation is to establish a legal entity that is distinct from its owners and operators in order to separate the financial and moral responsibility of the corporation from the financial and moral responsibilities of its individual executives and shareholders. This is referred to as the “corporate veil,” and it ensures that the corporation and the individuals who operate or own it are distinct legal entities—different “persons.”

The Court determined that because Hobby Lobby was “closely held” by one family, the company shared its owners’ right to religion; the company is Christian, it concluded. Hobby Lobby doesn’t attend church, of course; nonetheless, it now practices an official state-sanctioned religion, and it has the right to deny contraceptive coverage to its employees as part of its religious liberty.

The new RFRAs pierce the corporate veil further: Any corporation may be said to have a religion. The Indiana RFRA expands the scope of religious protection to any “for profit or nonprofit” company in which the “individuals” who have “control and substantial ownership of the entity” share “a system of religious belief.”

The Indiana law, like the Hobby Lobby decision, confuses the corporation with the individual human beings who run it. The language that makes this corporate usurpation of our civil rights possible is in Section 7 of the law: “As used in this chapter, ‘person’ includes the following: (1) An individual. (2) An organization, a religious society, a church, a body of communicants, or a group organized and operated primarily for religious purposes. (3) A partnership, a limited liability company, a corporation, a company, a firm, a society, a joint-stock company, an unincorporated association....” In this formulation, corporations take advantage of the legal category of “person” to acquire the civil and political rights of human beings—to acquire human rights.

Indiana law might not at first look like a corporate takeover of civil rights, in part because it is being successfully protested and in part because many major corporations have joined the critics. But the fix is in.

If Hobby Lobby put a foot in the door, the new RFRAs are part of the steady march of the corporate civil rights movement, whose allies include the conservative judges on the U.S. Supreme Court. As a recent study by Harvard legal scholar John C. Coates IV reveals, corporations “have begun to displace individuals as the direct beneficiaries of the First Amendment,” more effectively claiming rights to religion and speech than have individuals over the past 20 years.

The new RFRAs are part of a pattern that includes the Citizens United decision, in which the Supreme Court granted corporations unlimited political free speech rights in the form of monetary contributions to political groups. In doing so, the Court effectively diminished the political power of individuals by increasing the electoral influence of corporations. Indeed, the Court extended to corporations some of the civil rights protections that it weakened for racial minorities by crippling the 1965 Voting Rights Act with its decision in Shelby County v. Holder.

To be sure, the Indiana law might not at first look like a corporate takeover of civil rights, in part because it is being successfully protested and in part because many major corporations have joined the critics. Apple and Walmart, for example, quickly lined up on the side of those protesting possible discrimination against same-sex couples that the RFRA legalized. But the fix is in.

Discrimination of any sort is bad business for large corporations. But joining the chorus of anger over the potential discrimination against LGBT persons has hidden benefits for corporations, turning our attention away from the part of the law that is good for businesses but bad for democracy. Indeed, the corporate messages of support for the proposed amendment should alert us to the fact that the underlying law is seen by companies to be advantageous for securing greater civil rights and political power.

It may be a good victory for the civil rights of the LGBT community (and others) that the law is finally amended. But corporations in the U.S. have been taking advantage of the civil rights movements of real people since the abolition era to seize their own civil and political rights. Indeed, a quick victory for equal rights may obscure the longer-term damage being done to our political and legal system by expanding the civil and political rights of corporations, who stand to benefit at our expense even from a “fixed” Restoration of Religious Freedom Act.

My grandfather, Richard D. Bell, was (among other things) a union organizer from La Porte. A Democrat from industrial northwest Indiana, he was alert to corporate power grabs. He would have found Indiana’s RFRA despicable, its discriminatory effects intolerable, and its quiet expansion of corporate civil and political rights dangerous to democracy. If only politics and the law were as simple as the desk at which I sit.