Secular Corporations, Religious Subjects
Isaac A. Weiner
What is a religious corporation? After a number of high profile U.S. Supreme Court decisions over the past decade, this question has assumed great significance as the religious corporation has come to occupy a powerful space of exemption in U.S. law.
The “ministerial exception,” for example, as elaborated in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC and Our Lady of Guadalupe School v. Morrisey-Berru, shields religious organizations from following anti-discrimination laws when it comes to their employment relations with “ministers,” a category that courts have expanded beyond clergy to encompass a wide range of personnel, including some workers who were not even eligible to become clergy in the denomination of the organization claiming the exemption. In Burwell v. Hobby Lobby Stores, meanwhile, the Supreme Court found that a privately held, for-profit corporation qualified as a “person” under the Religious Freedom Restoration Act and was thus exempt from having to follow the Affordable Care Act’s contraceptive mandate. And in several recent rulings, the Court has struck down COVID-related public health directives as applied to religious institutions. Taken together, these cases indicate how organizations often find greater success than individuals in seeking protection for their religious rights of conscience.
But what is a religious corporation? If corporate religious liberty is to be respected, then it seems necessary to offer an account of the subjects to whom it applies. Yet both terms — “religious” and “corporation” — are notoriously difficult to define. A corporation could be understood narrowly, as referring only to those entities that have formally incorporated under the law. Or it might be conceived of more broadly, as encompassing any social collectivity or group. Determining what makes a corporation religious seems even more tenuous. Is “religious corporation” simply another term for a church or formal religious institution? Or does it include for-profit entities like Hobby Lobby? In either case, how should corporate beliefs and practices be delimited? Are they merely contiguous with those of its owners and/or members? Or do corporate bodies have an existence of their own that exceeds that of the individuals who constitute them?
Legal scholars often distinguish between the “obvious” cases, such as churches and religious schools, and the more “borderline” cases, like for-profit companies. For critics of the Hobby Lobby decision, for example, one of the key problems with recognizing Hobby Lobby as a religious organization was its commercial activity. As Justice Ruth Bader Ginsberg wrote in dissent, quoting approvingly from a lower court decision, “For-profit corporations are different from religious non-profits in that they use labor to make a profit, rather than to perpetuate [the] religious value[s] [shared by a community of believers].” For her, the profit motive would distinguish Hobby Lobby from the more “obviously” religious institutions involved in the ministerial exception cases.
Yet such a distinction seems thoroughly untenable. Who is to say that religious organizations cannot also be commercial entities? And since when? Historians of American religion have offered us examples again and again of groups who blended their religious and commercial commitments seamlessly. Today one might hardly bat an eye on hearing a successful entrepreneur describe herself as a “spiritual explorer whose medium just happens to be business.” Guaranteeing rights in the name of religion may require the state to draw sharp lines between religion and non-religion, yet the mere presence of a profit motive hardly offers a stable foundation for doing so.
Moreover, recent scholarship in religious studies has begun to excavate the genealogical linkages between religion and the corporate form itself. Amanda Porterfield, for example, traces the history of the corporation to ancient Rome and the beginnings of the Christian religion. She demonstrates how ideas about incorporation developed in tandem with theological accounts of the Church as the mystical body of Christ. In a related vein, Winnifred Fallers Sullivan has explored the interdependence of church, state, and corporation in U.S. law, revealing the ways they function as co-regulators of individual conscience and freedom as much as rival sovereigns. And in a recent article in the Journal of the American Academy of Religion, four scholars of Japanese religion urge greater attention be paid to the corporate form as a way of understanding how people create institutions and how institutions organize and constitute individuals, in ways that both are and are not explicitly marked as religious. In each of these accounts, drawing a bright line between religious and non-religious corporations seems thoroughly unsustainable.
In my own work, I’ve been interested in the unintended ways that ostensibly secular corporations, too, can shape moral consciences and constitute religious subjects, in part through how they respond to secular legal mandates. Legal accommodations can produce the very claims of conscience they are meant to protect.
Let me offer a specific example to help illustrate this point. In a separate article, I analyzed a chance encounter I had with a supermarket checkout clerk, a young African American man who was struggling to decide how he felt about participating in transactions involving emergency contraceptive products. On the morning that I met him in 2013, his store was getting ready to begin selling Plan B emergency contraception over the counter. He told me how his store managers had assembled all the clerks in a back room and asked if any of them had religious or moral objections to handling this particular product. If so, they could request to have a different cashier ring up the sale in their place.
These supermarket managers were offering their employees a straightforward and relatively commonplace religious accommodation. What was notable about this exchange, however, was that they did so proactively. Under Title VII of the Civil Rights Act of 1964, businesses are required to offer reasonable accommodations for the religious beliefs and practices of their employees, unless doing so would create “undue hardship on the conduct of the employer’s business.” Typically, the burden falls on the employee to alert their employer about a potential conflict and then collaborate with their employer to devise a reasonable accommodation. In the case of the supermarket clerk, however, it was the managers who first reached out to their workers. It was the employers who went out of their way to ascertain whether any of their employees might require a particular accommodation.
We could explain this by turning to the politics of religion and sex in the United States and try to understand how decades of debate about emergency contraception had come to mark this particular product as uniquely sensitive and controversial. But the managers’ proactive accommodation also reveals important changes in how corporations manage workplace diversity.
For a long time, management literature on workplace diversity tended to ignore religion, treating it as an essentially private matter or as too sensitive to address directly. This has changed in recent years. Scholars and business leaders from a variety of fields have called for taking more seriously the critical ways that religion shapes, and is shaped by, the secular workplace. Management experts have encouraged employers to take precisely the kinds of proactive measures described here in order to build more inclusive workplaces. By going out of their way to accommodate the spiritual and religious needs of their employees, businesses can make their workers feel valued and connected without disrupting commercial activity. Religious accommodations can serve to integrate a diverse and disparate workforce all while bolstering the corporation’s bottom line.
But such proactive accommodations can also create the very problems they are meant to address. In the case of my supermarket interlocutor, he explained to me how it had never occurred to him to object to handling any particular products until his managers posed the question to him directly. He had never taken time to reflect on the theological and moral implications of his work. Was it wrong to facilitate the sale of emergency contraception? Were there other products, such as alcohol or tobacco, which might be equally or even more objectionable? Could the Bible offer him any guidance for wading through these ethically fraught dilemmas? He told me how he had posed each of these questions to his pastor in the days since his meeting with the store managers, and then he turned and posed them directly to me, his customer, looking to any source at hand for answers. His managers’ well-intentioned efforts to accommodate the religious and spiritual needs of their employees had given rise to a full-on crisis of conscience.
What seems notable, in the end, is not the particular decision this checkout clerk made, but the broader effects that his company’s policies had enacted. In responding proactively to a secular legal mandate, the supermarket managers had recast the workplace as a site of ethical self-formation and development, as a space in which claims of conscience were constituted and cultivated, rather than to which they were brought already fully formed. They had invited their workers to re-imagine their labor as a proper subject for moral reflection and spiritual growth. And at the same time, their accommodations served to integrate a diverse workforce into a single collective, joined together to pursue a common mission, which happened to be dictated by the imperatives of a capitalist market.
I offer this example to suggest one way among many that corporations, including both those deemed religious and those deemed secular, engage in projects of “person-making.” Through their practices, policies, and protocols, organizations and collectivities, including for-profit corporations, form subjects, make persons, and shape consciences. They can do so in ways intended or unintended, or that go recognized or unrecognized. But in either case, they play important roles in shaping what it means to live with and among others. What are we to call such projects if not religious? Or put otherwise, might we not think of all corporations as in some sense religious enterprises? If there can be no coherent way to draw a bright line between religious and non-religious for the purposes of U.S. law, then perhaps the question we ought to be asking is not what makes a corporation religious, but rather what makes any collective formation worth building, sustaining, and protecting, regardless of the label we ultimately ascribe to it. ♦
Isaac A. Weiner is associate professor of religious studies and comparative studies at The Ohio State University. He is the author of Religion Out Loud: Religious Sound, Public Space, and American Pluralism (NYU Press, 2014), co-editor of Religion, Law, USA (NYU Press, 2019), and co-director of the American Religious Sounds Project.
Weiner, Isaac A. “Secular Corporations, Religious Subjects.” Canopy Forum, May 21, 2021. https://canopyforum.org/2021/05/21/secular-corporations-religious-subjects/.