Carlson: Scalia once saw the absurdity of religious exemptions

WASHINGTON — The U.S. Supreme Court heard oral arguments Tuesday in Sebelius v. Hobby Lobby Stores Inc. Let's concentrate for a moment on the "Inc." part.

Hobby Lobby is a for-profit corporation selling arts and crafts. It is asking the court to declare that its religious beliefs are violated by the Affordable Care Act's mandate that health-care insurance provided by employers include contraception.

Founder David Green opposes the mandate with a vengeance. If the court finds in his favor, Hobby Lobby would be exempted from providing some contraception coverage — an exemption already carved out for actual churches, religiously affiliated hospitals and genuine religious organizations. If it doesn't, we will find out what Green's (or is it Hobby Lobby's?) deeply held conviction is worth to him (or it). Green estimates it would cost his company $1.3 million a day.

The idea that a corporation can have religious beliefs seems ludicrous on its face, but the nose-in-the-tent ruling that gives this preposterous argument some weight was Citizens United v. FEC in 2010, which gave free-speech rights to corporations. Hobby would take that a step further: If Green has freedom of religion, so does his business. Like him, it worships, sins, is forgiven, reads the Bible and, if it all works out, is going to heaven.

If there is a heaven, I can see Green there (along with Ben and Jerry). On earth, Green got the blessing of the 10th U.S. Circuit Court of Appeals for his position. In the opinion of Judge Timothy M. Tymkovich, Hobby Lobby isn't just selling origami kits — it's selling something much more profound. "A religious individual may enter the for-profit realm intending to demonstrate to the marketplace that a corporation can succeed financially while adhering to religious values," he wrote. "As a court, we do not see how we can distinguish this form of evangelism from any other."

That would mean that Hobby Lobby is like the Jehovah's Witnesses, only with stores. There's no doubting the sincerity of Green's religious beliefs. "If you have anything or if I have anything, it's because it's been given to us by our Creator," Green told Forbes magazine in 2012. The magazine estimates he has donated $500 million to evangelical churches and Christian universities. He wants to open a museum devoted to the Bible. He believes in social justice, paying his employees more than the minimum wage.

There's no end to what corporations could do — or rather, not do — in the guise of religion. In Arizona, bakers and photographers could have refused to make cakes or take pictures of same-sex couples because the practice offended their religious beliefs (Gov. Jan Brewer wisely vetoed the bill). What else could businesses refuse to do in the name of freedom of religion? Hire divorced people, maybe, or atheists, or even pay the minimum wage. After all, didn't Jesus say something once about how hard it was for a rich man to get into heaven?

Among those who see the danger in this line of reasoning is Justice Antonin Scalia. Fifteen years ago, the court heard a case involving two employees of a drug rehabilitation program who were fired for using peyote. When they were denied unemployment compensation, they sued: They used the peyote as part of a religious ceremony at their American Indian church, they said, so the denial violated their First Amendment right to the free exercise of religion.

Scalia was having none of it. Writing for the majority, he said that a ruling in favor of the two employees would "open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind — ranging from compulsory military service, to the payment of taxes, to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws."

Loath to be seen as anti-religion, Congress went to work before the ink was dry on Scalia's opinion. Three years after the decision, it passed the Religious Freedom Restoration Act, which President Bill Clinton duly signed. The law says the government "shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability." In its brief and in oral arguments, Hobby Lobby asserts that the HHS mandate is "one of the most straightforward violations" of the law the court is ever likely to see.

America was founded on the separation of church and state, which used to be sacrosanct but increasingly isn't. Where one side sees a retail chain selling scrapbooking kits, many more — at least judging by the number of amicus briefs — see a religious institution akin to a church. It isn't, of course, nor is David Green some kind of priest. Once upon a time, conservatives such as Antonin Scalia could be counted on to say so. We'll know in a few months if they still are.