Of the many lawsuits that have been filed against the federal government’s HHS contraceptives mandate, the ones that have gone forward for judicial rulings are those filed by businesses. That’s because, although non-church religious nonprofits are not exempt from the mandate, they can currently disregard it because of a one-year long “temporary enforcement safe harbor” while the administration tries to devise an “accommodation” that provides some protection for their convictions about the mandated coverage. (For details of the mandate and the safe harbor, go here.) The religious organizations’ cases are not “ripe” because the mandate does not yet apply to them and the government might come up with an acceptable solution. Or so say the judges.

But businesses are not eligible for the safe harbor, so the mandate applies to them as soon as their new plan year or new insurance plan begins. When they ask a judge to release them from this imminent danger, it is time for a court decision, if only for a preliminary injunction stopping application of the mandate until a full trial is held.

But does a business have conscience or religious rights at all? The federal government has consistently argued that it cannot. An entity that makes money and operates out in the commercial stream of business is by definition secular and cannot be considered to have any religious rights, the federal government says. The owner of such a business does not have religious rights, either-he or she is operating a business, not a religious institution.

The judges hearing these cases have come down in various places on this critical question of the exercise of religion in or by a for-profit business. One federal judge has ruled that the Hobby Lobby company and its owners do not have religious rights, even though the owners, the Green family members, “sign a Statement of Faith and Trustee Commitment obligating them to ‘honor God with all that has been entrusted to them’ and to ‘use the Green family assets to create, support and leverage the efforts of Christian ministries.” The Green family hires chaplains for the employees, donates millions of dollars of company profits to Christian ministries, buys religious ads at Easter and Christmas, and takes care in selecting merchandise and monitoring the stores to avoid immoral activities.

On the other hand, a different federal judge did issue a preliminary injunction to protect Tyndale House Publishers. Matt Bowman, part of the Alliance Defending Freedom team working with Tyndale, said that publishers of Bibles “should be free to do business according to the book that they publish.”

Similarly, a federal appeals court has ruled that O’Brien Industrial Holdings and its owner do have religious rights and it issued a preliminary injunction shielding the company from the contraceptives mandate. These judges agreed that owners should be able to operate their business consistent with their religious and moral convictions.

So can religion and business mix? Can a business be a religious organization? Stay tuned as the courts keep struggling with this issue.

In the meantime, here is a new legal paper that argues that the business sector cannot legitimately be treated as a zone from which religion must be excluded:

Ronald Colombo, “The Naked Private Square,” Hofstra University School of Law, Legal Studies Research Paper Series, no. 12-26.

Colombo says (italics added):

“Any authentic version of religious freedom must take into account its associational dimension. For an individual’s religious freedom is of little value if he or she is unable to band together with others in practice thereof. It is for that reason that the First Amendment has always been interpreted to protect the rights of not only religious individual, but religious institutions as well.

“Religious institutions include churches, temples, and mosques. They include schools, hospitals, and charities that embrace a religious mission. Traditionally, these institutions have been incorporated as non-profit entities. Today, however, some for-profit corporations are embracing a religious mission as well. And this is not surprising. For few associations are as ubiquitous, and as significant to society, as the business corporation. Countless millions of Americans work for, invest in, and/or patronize business corporations on a daily basis. Indeed, few institutions play a greater role in an individual’s life than corporations do today. And whereas the pilgrims of yesteryear established communities in which to live and farm together, religious individuals of our own time increasingly wish to order their lives around a corporation (or corporations) that comport with their most deeply held values. They have no desire to segregate their lives into spheres that are reflective of their faith, and those that are not.

“And this underscores a critical point: failure to recognize the religious liberty rights of the business corporation means failure to fully recognize the religious liberty rights of flesh-and-blood human beings. For without the recognition of such corporate rights, authentically religious for-profit institutions could not exist. This would, in turn, deprive religious entrepreneurs the right to create business corporations consistent with their religious principles and beliefs. It would similarly deprive potential officers, employees, investors, and customers such an enterprise to coalesce around and partake in. Such failure would undermine both the spirit and the efficacy of the First Amendment, and call into question our nation’s alleged commitment to pluralism, diversity, and tolerance.”