Month: March 2014

Obamacare, Religious Freedom and “Persons” – You Can’t Bend it That Way

By Sam Ventola,

Alice_Humpty_Dumpty‘I don’t know what you mean by “glory”,’ Alice said.
Humpty Dumpty smiled contemptuously. ‘Of course you don’t — till I tell you. I meant “there’s a nice knock-down argument for you!”‘
‘But “glory” doesn’t mean “a nice knock-down argument”,’ Alice objected.
‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’
‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’
‘The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.’
Alice was too much puzzled to say anything…
Lewis Carroll, “Through the Looking Glass”

In our last article on Obamacare (“Affordable Care Act”) and religious freedom, we pointed out that in the cases currently before the Supreme Court, Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties Corp. v. Sebelius, the issue is not one of interpretation of the First Amendment, but instead interpretation of a statute – the 1993 Religious Freedom Restoration Act (“RFRA”).

The most common question we have received on that article is whether a corporation, such as Hobby Lobby, is entitled to protection of its religious freedom under RFRA. It is the argument of the Obama administration that it is not. The statute protects the religious freedom rights of any “person,” and the administration contends that this does not include Hobby Lobby.

The statute itself does not define “person.” However, another statue, the “Dictionary Act,” states that when the word “person” is used in any statute, that word includes corporations “unless the context indicates otherwise….” The Obama administration’s argument is that corporations aren’t usually thought of as having religious freedom rights, so that when RFRA uses the word “person” that doesn’t include corporations.

One of the problems with the argument, however, is that the Obama administration is not willing to stand behind it all the way. They want religious freedom protections to apply to churches and other non-profit corporations. So, they argue that the context of RFRA indicates that “persons” includes corporations… but only sometimes. When the corporation is “non-profit.”

Of course, there is nothing within the language of RFRA, or the Dictionary Act, which would justify including some corporations within “persons” and not others. Both for-profit and non-profit corporations operate at the direction of the individuals that have control over them. Although there may be differences between them – usually established by the law of whatever State the corporation is registered under – nothing within the context of RFRA is changed by whether the party is a “for profit” corporation, “non-profit” corporation, “not-for-profit” corporation, limited liability company, partnership, limited partnership, etc., etc.

The attempt to protect only some corporations but not others represents the same kind of semantic gamesmanship employed by Humpty Dumpty in the quote above. The administration simply wants to call some corporations “persons,” but not others, based on its own desires rather than any context created by the statute. As pointed out in our last article, if Congress had intended RFRA protections against Obamacare requirements not to apply to corporations, or only to apply to specified types of corporations, it could have so specified when Obamacare was passed. Such a distinction should be made by legislation rather than by redefining words after the fact.