America has a long and proud tradition of promoting human rights in the international arena. We were there at the beginning of the modern human rights era, after World War II, when First Lady Eleanor Roosevelt was one of the key framers of the foundational document of international human rights law, the Universal Declaration of Human Rights of 1948. And the United States helped set up the main international bodies that have promoted human rights ever since then.
Among the human rights we successfully sought to have all nations recognize was the right to religious freedom protected in the First Amendment. Often called our “first freedom,” religious liberty and the religious tolerance that went with it was for many years a distinctively American practice, and many fled to our shores to enjoy it. Eventually the rest of world began to adopt the American idea of religious liberty, and today almost every country in the world claims to honor religious liberty, even when it doesn’t in practice.
That historic leadership on human rights is why it is so alarming that the federal government is now seeking to repudiate our tradition when it comes to religiously run businesses. In the Hobby Lobby appeal now before the United States Supreme Court, the government has taken the remarkable position that the owners of a family business have no religious freedom in how they operate that business. The members of the Green family—who own Hobby Lobby and are responsible for what it does—object on grounds of conscience to paying for drugs that can end human life in the womb. They want to continue their practice of excluding those drugs from their health insurance programs. The government says that because they run a business, they do not have religious freedom and enjoy no protections for their religious practices, including conscientious objection. Incredibly, some lower court judges in similar cases have gone even further, asserting that because they view religion as an “intensely individual experience,” even churches, synagogues, and mosques have no right to religious freedom.
The Becket Fund for Religious Liberty, which is representing Hobby Lobby and the Green family, has made a number of strong arguments explaining why the government’s extreme position runs afoul of federal civil rights law and the First Amendment. But it not only violates our own laws, it also directly contradicts the most basic principles of international human rights. As I and many other professors of international law explained in a “friend of the court” brief we submitted to the Supreme Court, international legal norms, and the legal norms of constitutional democracies in Europe and elsewhere, affirm that the exercise of religious liberty has an inherently collective and public character. They reject the notion that there can be no corporate religious freedom and that religious liberty ends where family businesses begin. The government’s position puts us completely at odds with these universally accepted understandings of religious liberty.
Indeed, the federal government’s position runs directly counter to global trends that we ought to welcome. As we point out in our submission to the Supreme Court, other nations and international bodies increasingly emphasize that businesses should not be focused exclusively on profit, but on the real human costs to society of their operations. Corporate social responsibility means that a global business must not have an “every man for himself” attitude, but should instead act in accordance with conscience, taking into account how its actions affect others. Yet in the Hobby Lobby case the government is saying not just that a business doesn’t have a conscience, but that its owners can’t be allowed to run it in accordance with their conscience. That morally laissez-faire approach is a recipe for social disaster, which is why every human rights body in the world to address the issue has pleaded for, not rejected, greater corporate social responsibility.
Now one response to this discussion might be to ask, “What about American exceptionalism? Why should we follow global consensus?” That gets the situation exactly backwards. The United States was at its founding exceptional in the way that we protected religious freedom, especially for minority groups. It was only after more than a century that much of the rest of world began to emulate the exceptional American way when it came to religious liberty. Now that other countries have adopted the principles we first declared, it would be foolish for us to throw them away: religiously-run businesses should remain protected. In short, the gift of constitutionally guaranteed religious liberty that we brought into the world should belong to American citizens too.
Carozza is professor of Law and Director of the Kellogg Institute for International Studies at the University of Notre Dame.