Some pieces I liked:

Paul Horwitz

Julian Sanchez

Damon Linker

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Notwithstanding my worries about the theory of the corporation, I would have favored the Obama administration working out an accommodation; and, like Linker (and, I think, Kevin), I think that a liberal society ought to have a lot of room for institutions of varying moral commitments and internal rules.

Two qualifications– one an admission of something that I don’t think should count as much of a reason, one that I do mean to offer as a reason.

a) I can’t help but feeling a lot of tu quoque annoyance at current religious conservatives’ rediscovery that it’s reasonable for private associations and institutions to have a range of internal norms and commitments, and for that matter at their rediscovery of federalism. I remember all too many Focus on the Family boycott campaigns against firms that dared to offer medical benefits to same-sex couples, mini-DOMAs written so as to disallow private accommodation of same-sex couples, the federal DOMA that overrode the traditional leading role of the states in family law, and the campaign for a federal constitutional amendment to ban same-sex marriage altogether. This reaction lumps together a lot of different actors at different moments, I know. For all I know the Green family opposed every item I just named (thought I’d be shocked). But broadly speaking, the social and religious right from the late 80s/ early 90s through to about 2006 demonstrated no principled commitment to federalism, freedom of association, institutional diversity, or a free range of private choices. For people who supported sodomy laws to now invoke the freedom of private people to now write paeans to the freedom of private persons to follow and act on their own beliefs grates on me. (And, yes, there are particular people I have in mind here who have shown this kind of inconsistency over time.)

I sometimes find myself wondering whether there’s a nearby possible world in which the social and religious right acted very differently during its ascendancy– more Jonathan Rauch, less Rick Santorum– and in which Ross Douthat’s insistence that they should now get to “negotiate the terms of their surrender” in the culture wars would be less galling.

As it is, tu quoque isn’t an argument, and people are entitled to the freedom they’re entitled to, even if they denied other people the freedom they were entitled to when they had the chance. This is just, as Tyler Cowen puts it, mood affiliation– but it’s not quite the mood affiliation that Kevin sees when he wonders whether critics of Hobby Lobby just don’t like religion.

b) A very different concern– which relates to some of the points in the Horwitz op-ed– stems from my appreciation of the virtues of commerce and markets. The doux commerce thesis was (is) that markets and market behavior could help overcome social divisions (religious divisions chief among them!) because they offer positive-sum, relatively impersonal, opportunities for cooperation in which those divisions aren’t relevant. Voltaire:

Take a view of the Royal Exchange in London, a place more venerable than many courts of justice, where the representatives of all nations meet for the benefit of mankind. There the Jew, the Mahometan, and the Christian transact together, as though they all professed the same religion, and give the name of infidel to none but bankrupts. There the Presbyterian confides in the Anabaptist, and the Churchman depends on the Quaker’s word. At the breaking up of this pacific and free assembly, some withdraw to the synagogue, and others to take a glass. This man goes and is baptized in a great tub, in the name of the Father, Son, and Holy Ghost: that man has his son’s foreskin cut off, whilst a set of Hebrew words (quite unintelligible to him) are mumbled over his child. Others retire to their churches, and there wait for the inspiration of heaven with their hats on, and all are satisfied.

This accomplishment of market society is pretty robust but not infinitely so, and I worry that the more we entangle our commercial institutions and our behavior as producers, consumers, employers, and employees with religious/ cultural identity politics, the more we sacrifice of doux commerce. The explicitly religious for-profit corporation wouldn’t be the only offender here, but it would be an offender. So, as I say, this is a qualification to my enthusiasm for associational and institutional diversity.

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That wouldn’t by itself be enough to persuade me to reject the idea of the religious for-profit corporation. (The worry applies to sole proprietorships and consumer boycotts, too, but in those cases it’s just a worry about the use to which people put freedom to which they’re certainly entitled.) I reject that idea for the reasons described in my earlier post. I’ll be thinking about Kevin’s response and will write a reply when I can, but for now I wanted to talk about a couple of particular related comparisons: the benefit corporation and the nonprofit corporation.

a) Benefit corporations are explicitly chartered as having moralistic purposes alongside, and potentially in competition with or constraining, their purpose of maximizing shareholder value. They’re allowed in a number of U.S. states. The purposes need not be conservative ones; they can be, e.g., environmentalist ones.

If benefit corporations were to become very widespread, my doux commerce worry would kick in. But in a world where they’re marginal, some people have invoked them as an objection to my view on for-profit corporations: Don’t you admit that a corporation like that can have a moral purpose, in effect a corporate moral belief that might be a religious belief? To which I reply: yes, obviously– but the BC is a hybrid and an exception. The whole point of the category is that it’s a hybrid and an exception. And it seems very strange to me to take an explicitly exceptional subcategory as reason to think that the whole category shares that exceptional trait.

b) Non-profits are constituted by their moral or social purposes. We join together and create them in order to create an impersonal permanent institution devoted to those purposes, institutions that survive changes in personnel or changes of mind among the founders. The Catholic Church is corporately Catholic, in a way that is unaffected by the death of one Pope or the heresy of another or widespread alienation among former believers or whatever.

My claim in the earlier post about for-profit corporations was that describing them as having religious views requires immediate recourse to talking about the natural persons behind the corporate veil. Hobby Lobby “has a religion” only in the sense that the Green family has that religion. Licensing the view that closely-held corporations can “have religions” is always going to require talking about the natural persons who are the majority shareholders of such corporations. If a CHC goes public or is sold to another private owner, or if the next generation of majority shareholders reject their parents’ religion, the corporation’s religion will disappear. The responsibility to shareholders endures– I can’t inherit my parent’s majority share in a CHC and decide that I just feel like wasting the corporation’s assets. But there’s no institutional responsibility to maintain the religion, the way that there is for an official in a church. (Again, this is probably different for benefit corporations, but they’re an exception.) (See also.)

Non-profit corporations do, and for-profit corporations don’t, have an impersonal, institutional, potentially perpetual commitment to moral/ social/ religious purposes. To say that a CHC has such a commitment is very different; it’s only a personal commitment among the majority shareholders.