The Religious-Liberty Quagmire to Come


A recent Slate column, "All Corporations Go to Heaven," about the Obama administration’s Health and Human Services’ mandate makes all too apparent the legal quagmire awaiting us.

Author Dahlia Lithwick sides with the HHS mandate in its attempt to compel all organizations — including Catholic hospitals, universities and businesses — to provide insurance coverage for contraception, abortion-causing drugs and sterilization.

What are her reasons?

Lithwick argues, first of all, that corporations are distinct entities from individuals. While individuals can have religious beliefs, corporations can’t. Once you establish a corporation, it is automatically a secular corporation.

Lithwick has in mind the Conestoga Wood Specialties Corp., a Pennsylvania cabinet manufacturer owned by Mennonites and employing 950 workers. The owners, the Hahn family, object to the HHS mandate on the grounds of religious liberty. They object for the same reason that every one of the U.S. Catholic bishops and every Catholic institution and business objects: Abortion is an intrinsic evil, and cooperation with the commission of an intrinsic evil is morally wrong. They lost in a recent federal case, but an appeal will no doubt follow.

The judge in the case argued that a corporation is not an individual, and while individuals can claim protections of their religious liberty under the Free Exercise Clause of the First Amendment, corporations can’t.

"We simply cannot understand how a for-profit, secular corporation — apart from its owners — can exercise religion," circuit Judge Robert Cowen wrote. "A holding to the contrary … would eviscerate the fundamental principle that a corporation is a legally distinct entity from its owners."

Lithwick’s second argument appeals to the religious liberty of the individual employees of the corporation or institution. She asserts that (for example) a Catholic university that would not provide contraception, abortifacients and sterilization would actually violate the religious liberty of the individual employees. The subtitle of her article says it all: "The Supreme Court will soon decide if CEOs can impose their religious convictions on the people who work for them."

Lithwick claims, "The guarantee of religious freedom enshrined in the Constitution was intended to protect fragile minorities from crushing religious burdens imposed by the wealthy and powerful." If we allow the owner of a corporation to claim a religious-liberty exemption from the HHS mandate, then we create "a bludgeon by which he can dictate the most intimate health decisions of his workers, whose own religious rights and constitutional freedoms become immaterial."

What are the problems with Lithwick’s claims?

The first and most obvious is the notion that a corporation is automatically secular simply by becoming a corporation. If a Catholic university incorporates, does it thereby become a secular university? Does that mean that it can’t teach Catholic theology for fear of violating the religious liberty of its individual students? And if it must provide abortifacients, won’t it then be obliged to provide outright abortion? Coverage for sex-change operations? Euthanasia? Where will it end?

But there is a second, deeper problem in Lithwick’s notion of all corporations as secular. She assumes that "secular" means something like "entirely neutral and just." But as I argue at length in my book Worshipping the State, secularism isn’t neutral at all. Secular liberalism, to use the full name, is a very particular worldview, with its own beliefs about the cosmos, God, human nature and the human good.

To be all too compressed, secularism has two related roots: the rejection of Christianity and the affirmation of materialism. The materialism, since it rejects all spiritual reality, reinforces the rejection of Christianity. Since secularism is materialistic, it assumes a materialistic-hedonistic view of morality.

For the secular worldview, because human beings are mere bodily creatures, their happiness and moral good are defined by maximizing physical pleasure (and minimizing physical pain). Contraception and abortion allow for the sexual liberation that maximizes physical pleasure. And since human beings are ultimately reducible to soulless, physical, molecular structures — masses of tissue, so to speak — then no harm is done by abortion.

The HHS mandate is, then, not some kind of neutral law, but one defined by the basic sexual assumptions and goals of secular liberalism. The "law" flows, not from some deep understanding of justice, but from the secular-liberal sexual revolution.

What both the Obama administration and Lithwick want is for the state to impose secular-liberal moral views upon everyone, especially Christians, who are the main obstacle to the complete secularization of our culture.

And so, to declare that all corporations are de jure secular would simply mean a de facto cultural victory of secular liberalism. It’s akin to, and rooted in, the similar claim that the government, as government, must be defined as secular.

If the government is defined as secular, then it therefore has a mandate to remove all the great religious obstacles to full secularization.

The third problem with Lithwick’s argument is that she claims a kind of religious protection for what are obviously secular-liberal views. She asserts, again, that a CEO who, for religious reasons (and claiming religious liberty), doesn’t provide abortifacients to his employees violates the religious liberty of his employees.

This is akin, one is supposed to believe, to the Revolutionary era-established Congregationalist Church in Connecticut lording it over the Danbury Baptists, where the contraception-wanting employees are somehow equivalent to the beleaguered Baptists.

On this ground, any secular moral belief (say, the desire for an abortion or to get a sex-change operation) would really be a religious belief and therefore protected by the Free Exercise Clause.

There is some truth to this view, but not the truth Lithwick would like to hear. As I also demonstrate in Worshipping the State, secular liberalism not only functions like a religion, but really is a religion. But that means that imposing secular-liberal views from above, via the HHS mandate, violates the Establishment Clause of the First Amendment.


Benjamin Wiker, Ph.D., is the author of 12 books, most recently

How To Think About God on a Plane.

He is a visiting associate professor of theology at

Franciscan University of Steubenville.

His website is