Few among us concerned for the defense of religious freedom can doubt that these have become dark times indeed. Most recently, arguments have been brought before the Supreme Courtthere has been a veritable cascade of briefsagainst the government on Obamacare. Many of these have one way and another concentrated on the argument that even a business organized as a corporation, in reflecting the character of its founders, may still be touched with a religious character.
A corporation is an association of free persons, and no one is contesting any longer that a corporation, for many legal purposes, has the standing of a person. Every association, as Aristotle taught us, is aimed at some notion of a good, whether that good be the making of shoes for profit or the relieving of famine. Based both on legal precedents and the logic of the thing, it should be clear that there is no plausible way to argue that, among all the things that may shape the notion of the “good” sought by a corporation, a religious understanding is the only one that must be ruled out as illegitimate. Thus one has reason to be fairly confident that such an understanding will prevail in these cases. But it could prevail and yet the case still be lost. In the end, the heart of the matter will come down to something else.
Even people experienced in politics were jolted to discover that the Obama administration had deliberately chosen, as a political stroke, to pick a fight with the Catholic Church by compelling both Catholic institutions and Catholic businessmen to cover abortifacients and contraceptives in the medical insurance they offer to their employees. (And what can be said in regard to Catholics can be said just as well for Mormons and Evangelicals.) The religious, now embattled in the courts, have been persistent in invoking part of the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Yet it appears to be coming as a surprise to religious Americans and their lawyerseven so late in the seasons of our experiencejust how thin and equivocal the First Amendment might prove to be as a support for their religious freedom.