March 25, 2014
The Confusion Created by Imprecise Concepts
Posted by David Zaring

This post comes from Brian McCall.

The Hobby Lobby case and the debate surrounding it is plagued by a modern amalgamation of concepts that should be considered distinctly.  The word religion has gone from being a precisely understood concept to becoming one of the most amorphous, vague and ill-defined concepts.  As a result its application to corporations, another concept which lacks clarity in modern philosophy, has become muddled.  Part of this confusion stems from the transmutation of the term from an objective concept about reality to a subjective feeling or immanent impulse.  In classical thought religion (coming from the Latin to bind again) was the external practice of the worship of God.  The external acts rebind human creatures to the Divine by means of fulfilling their obligation in justice to render the homage due to a Supreme Being.  The practice of religion referred to these acts of public cult and was a distinct, although obviously related, concept from ethics or morality, or more precisely Natural Law.  Natural Law contained precepts that served as guidance for making correct decisions about human action.  Natural Law was related to religion in that both had a reference to God but not in the same sense.  For Natural Law, God was the lawgiver and the ultimate tribunal for the enforcement of Natural Law.  Yet, the relationship to God expressed by Natural Law was distinct from the religious relationship, although the two refer to the same Divine Person the manner of relation is different. 

Human beings and societies and associations they form can practice religion.  In a context in which the members of a corporate association do not share a common religion the exercise of religious practice by a corporation is not likely to be practical.  Yet, in a different context it is certainly possible.  For example, a Catholic hospital or a religious school organized as a corporation can practice religion in the sense defined above and should therefore possess the same freedom to practice that religion.  The aforesaid institutions can build and operate a chapel display religious iconography for veneration and hold public acts of worship on corporate property. 

The HHS mandate and the law on which it is based do not impinge the exercise of religion.  Rather they compel particular human action, requiring the provision of specific forms of contraceptives by corporations and their insurer agents to their employees.  Now human law is free to compel human action, individually or by corporate associations.  Yet, a law compelling human action which violates the Natural Law is beyond the authority of human laws and according to St. Augustine, St. Thomas and thousands of years of Natural Law jurists, a law which requires a subject to violate the Natural Law is no law at all but rather a violation of law which does not bind in conscience.  Corporations, like other legal persons, have obligations to obey the law, using law in the broadest sense to include law all the way up to Natural and Eternal Law.  Thus corporations like natural persons must conform to the human law unless that law is iniquitous by compelling violation of higher law.  A blog post is insufficient space to examine why this particular law does violate two principle precepts of Natural Law (we ought to preserve human life and we ought to procreate and rear children).  Yet, it is on this ground that Hobby Lobby should be refusing to obey the human law and not because it violates the exercise of religion.  The Nuremburg trials stand as the most recent historical example that even in a juridical world dominated by Legal Positivism we still recognize the truth that human laws compelling one to violate the Natural Law do not excuse moral responsibility.  As Ronald Colombo succinctly argues elsewhere in this symposium, corporate social responsibility has reminded all of us that we cannot achieve moral limited liability by using corporations to complete human acts.  Corporations have to obey the law, again in the broadest sense not limited to particular enactments.  If the HHS mandate violates Natural Law by compelling acts contrary to Natural Law, Hobby Lobby and any other corporations are not bound to obey such a law and this should be their defense.  In a fallen world with a far from perfect legal system, their defense may fail and they may unjustly suffer illegal consequences but the point is corporations as human institutions are not exempted from the obligations of Natural Law and have the same right to refuse obedience to iniquitous laws.   By accepting the imprecise use of the term religion, our entire First Amendment jurisprudence exemplified in this case suffers from blurring this important distinction between religion and the right and duty to disobey iniquitous laws.

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