Blog author: ehilton
Wednesday, August 14, 2013
By

james madisonWhat do vegans, Catholics, and Starbucks have in common? According to attorney Mark Rienzi they all share the right to “decisions of conscience.”

Starbucks has ethical standards for the coffee beans it buys. Vegan stores refuse to sell animal products because they believe doing so is immoral. Some businesses refuse to invest in sweatshops or pornography companies or polluters,” Rienzi said in an Aug. 11 opinion essay for USA Today.

“You can agree or disagree with the decisions of these businesses, but they are manifestly acts of conscience, both for the companies and the people who operate them,” he said. “Our society is better because people and organizations remain free to have other values while earning a living.”

In a July USA Today column, Rienzi cites the arguments of the Founding Fathers as to whether or not the Bill of Rights was necessary. That is, was it necessary to legally protect the decisions of conscience a person or entity makes? Despite objections from Alexander Hamilton (who believed that the Bill of Rights was superfluous), the decision was made to include the Bill of Rights.

Hamilton’s opponents won, of course, and we have a Bill of Rights to protect individual liberty. And despite all the disagreement on the Supreme Court about the taxing power, the commerce clause and other structural aspects of the Constitution, there seems to be broad agreement that the Bill of Rights provides additional protections for individual and organizational liberty, above and beyond the structural checks and balances in the document.

That is a crucial point because it explains why last week’s decision has no impact on the religious liberty challenges to the controversial HHS mandate. The court’s decision merely said that Congress was acting under one of its enumerated powers (namely, the tax power). But it did not answer the question as to whether any particular provisions of the law, or particular regulations enacted under it, violate any individual liberty protections in the Bill of Rights or elsewhere in federal law.

In his August USA Today column, Rienzi argues that businesses – because of the Bill of Rights – have the right to freely utilize conscience when doing business, and this isn’t restricted to “religious businesses”, such as producers of Bibles or purveyors of kosher food.

The Supreme Court has repeatedly protected religious liberty for corporations. The question is really about money, and whether the government can force groups that earn money to single-mindedly pursue profits, without regard for any other value.

We regularly encounter businesses making decisions of conscience. Chipotle recently decided not to sponsor a Boy Scout event because the company disagreed with the Scouts’ policy on openly gay scoutmasters. It was “the right thing to do,” Chipotle said.

Whether one agrees with such decisions on the part of a business is beside the point, says Rienzi, “they are manifestly acts of conscience, both for the companies and the people who operate them.”

The question then becomes, “Are the consciences of some groups more important than those of others?” Will the rights of those who oppose the HHS mandate be held to a different standard than Starbucks and Chipotle?