I’m busy finishing up my new book, Beyond Separation: Uniting Liberal Politics and Public Faith (Routledge, 2014), so I haven’t been blogging as much as usual. But a new Slate article drew me back to the blogosphere for a bit (note that I have blogged on the mandate before).

The article is based on the big news that the Supreme Court is going to assess Hobby Lobby’s request for a religious exemption from the HHS contraception mandate. The new case is called Sebelius v. Hobby Lobby Stores Inc. And the question is whether for-profit corporations have rights of religious conscience. Note that Hobby Lobby is “closely held,” as it is owned and operated by a single family, the Greens. They believe their Christian faith prohibits the company from facilitating contraception for their employers.

Micah Schwartzman (a legal philosopher whose work on public reason I think very highly of) and Nelson Tebbe have argued that Hobby Lobby’s legal reasoning is based on the controversial claim that if corporations have free speech rights, they have rights of religious conscience. If the SCOTUS endorses this argument, Schwartzman and Tebbe worry that it’d signal a significant, negative legal change.

I want to focus on their claim that exempting Hobby Lobby from the mandate would be bad because it allows Hobby Lobby to burden their female employees (or the wives and daughter of their male employers). In my view, this argument isn’t remotely plausible. But Micah is very smart, so I fear I’m missing something.

I. Hobby Lobby’s Burdens

Schwartzman and Tebbe:

Finally, and critically, there is an important difference of constitutional text and doctrine between free speech and free exercise claims: the Establishment Clause, which implements the separation of church and state. Simply put, there is no free speech analogue to the Establishment Clause. That is not just an arid intellectual point—it matters critically here. Why? Because exempting large, for-profit corporations from the contraception mandate would significantly burden female employees, along with all the wives and daughters covered by the policies of male employees. Thousands of women would lose all insurance coverage for contraception. That loss would be very real, and it would frustrate a central objective of Obamacare: namely to ensure that women have equal access to critical preventative care.

And again:

[E]xempting large, for-profit corporations from the contraception mandate would significantly burden female employees, along with all the wives and daughters covered by the policies of male employees.

Once more:

[T]he Supreme Court has insisted that the Establishment Clause prohibits religious accommodations that impose burdens on third parties—which is exactly what is happening here. Exempting Hobby Lobby from the contraception mandate will seriously burden precisely those women who are its intended beneficiary.

If we were talking about cancer treatment, I’d be more moved by this argument. I still don’t think the need for cancer treatment would override the right of religious conscience, as religious freedom is a basic liberty and a human right. The government simply has to find another way to provide the care. But even if cancer treatment could justify burdening conscience, this is only because cancer treatment is critical to living. In almost every single case, contraception is not.

Yes, on occasion an abortifacent is needed to abort a fetus that resulted from a rape. Yes, on occasion contraception access is required to avoid, say, a predictable, dangerous health problem that would be raised by having a child. But again, these procedures can be paid for on another basis, and a legal exception could be made for them. The “burden” of not having contraception access is extremely light and can be provided for without using force against a religious family.

Notice that everyone accepts this reasoning when it applies to churches. You simply cannot force a pastor to pay for abortions for his secretary on the grounds cited. What’s more, most people agree that you simply cannot force a non-profit charity director of a Christian mission to pay for abortions for his secretary on the grounds cited.

So here’s the key question: why is Hobby Lobby any different? Yes, they’re trying to make money, but why does that mean their religious liberty can be justifiably restricted?! I cannot see that having the aim of making a profit is sufficient reason to restrict a basic human right.

II. Civil Rights and Conscience

I should address a final point they make:

Civil rights laws, including this health care provision, draw the right line when they exempt religious organizations and small companies but not large corporations that could significantly burden the freedom and equality of their employees.

I admit that most people (though not most readers of this blog) will find that dividing line fair, but I think it’s just status quo bias. Setting out to make money should not disqualify anyone from religious liberty, so long as it does not directly impose harms on others that cannot be easily avoided or ameliorated through some non-conscience violating means.

A publicly held corporation is different because ownership is so diffuse that it’s hard to make sense of forcing “the owner” to do something against his or her own conscience, because the “will” of the corporation is merely a legal artifact, in contrast to the wills of the Green family. There are reasons not to impose upon publicly held corporations, but respecting conscience generally isn’t one of them.

But here’s a reply: can closely held corporations discriminate on the basis of race or gender or sexual orientation, like churches and non-profits?

Before answering, I should stress the difference between racial discrimination and not buying contraception. Racial discrimination is far more degrading and encompassing than not buying contraception.

That said, my answer is yes, they can. We easily, if grudgingly, accept that we must respect racist or sexist conscience (if not mere racism or sexism) when it applies to non-profits and churches, and even small businesses. And the employees of these organizations may need their jobs just as much, and value their associations just as much, as people who work for Hobby Lobby. A church can burden its secretary just as much as Toledo’s Hobby Lobby can burden its cashier, if not more.

So once more: why is a closely held for-profit corporation any different than a small business, a religious non-profit or a church? Why is seeking a profit on a large scale sufficient to restrict rights of religious conscience in cases where no significant burden is present?