The Free Exercise Privileges of Capitalist Workers?
In the previous section of this post, I argued that Constitutional free speech privileges are virtually non-existent for capitalist workers and that, given the particular spatially extensive nature of the contemporary, electronic-age workplace, the denial of free speech privileges to capitalist workers cannot be meaningfully restricted to the workplace. If in earlier generations free speech could be compartmentalized outside of the workplace to enable employees to enjoy a private space as free citizens, capable of enjoying the liberties bestowed by the Founders through the Bill of Rights, in the era of Facebook, Twitter, and Linkedin, the capacity of a capitalist employer to exercise effective surveillance against the political speech of employees and to sanction such activities through employment actions (e.g. demotion, dismissal), even when they do not actively pursue associations with the firm or its activities, can produce a pervasive chilling effect on the political activities of capitalist employees. In a certain sense, the evolving corpus of adjudication and statutory enactments of labor market institutions since the heyday of industrial organization in the late 1930s seems to have supported a broader constriction of political liberties for workers in reaction to the self assertion of rights to organize on behalf of the collective self-interests of capitalist employees.
To some degree, the case of workplace free exercise privileges for capitalist employees under the First Amendment, augmented by the Religious Freedom Restoration Act (RFRA), poses even more deeply problematic issues, especially when tied to the institution of at-will employment. At this point, we need to back track into judicial precedents that we have already traversed. Emphatically, Adell Sherbert was dismissed from her capitalist employer for freely exercising her religious belief that working on the seventh day of the week constituted a profanity against God. Likewise, the respondents in the Smith decision were dismissed by their employers for following religious preceipts regarding the sacremental/ritualistic use of peyote. Neither appeal that reached the U.S. Supreme Court actually concerned, however, these dismissals. Rather, each ruling concerned the denial of unemployment compensation benefits by state-level authorities on the principle that the employees in question were dismissed by employers with cause.
As such, each application of free exercise privileges arises from governmental actions deriving from the outcomes of labor market practices by capitalist employers. At most, we could argue that capitalist employees potentially enjoy free exercise privileges by means of a public rectification - capitalist employers can always deny employees the full enjoyment of their free exercise privileges but, when they do so by dismissing employees who insist on practicing particular articles of their faith against the demands of the firm, they may encounter higher premiums for unemployment compensation insurance as state compensatory authorities recognize the validity of claims by employees that they were dismissed without cause. Otherwise, we have to recognize that there is no Constitutional foundation for issuing claims against capitalist employers for violating the free exercise privileges of employees. Moreover, in the aftermath of the Supreme Court decision in City of Boerne, enhanced scrutiny of free exercise claims issued against state and local governmental actions under the terms of RFRA no longer applies. As a consequence, assuming the Sherbert test on the Constitutionality of state and local laws/policies of general applicability no longer applies (something that might overstate the scale of the problem facing practitioners of minority religious traditions - the decision of the Supreme Court in Smith was premised on the limited grounds that use of peyote involved a criminally sanctioned violation of drug laws), then employees dismissed from a capitalist employer for reasons emanating from the free exercise of religion might again be denied unemployment compensation on the grounds that they were dismissed with cause. Regardless of the current terms for adjudication of free exercise claims emanating from a request for unemployment compensation, for employees, the capitalist workplace is a space within which both freedom of speech and freedom of religion go to die.
In this regard, when Justice Alito, in the majority opinion of the Court in the Hobby Lobby case, includes "employees" in his argument that "(a)n established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another" and, further, that "(w)hen rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people (U.S. Supreme Court, Burwell, Secretary of Health and Human Services, et al. v. Hobby Lobby Stores Inc., et al., No. 13-354 (October 2013 Term), p 18 (emphasis in original), at: http://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf)," he engages in a cynical overstatement of the case for extending free exercise privileges to the owners and officers of privately-held corporations. Pointedly, it is one thing to argue that the owners of a capitalist enterprise, under any given legal organizational form, maintain their individual privileges to act in accordance with their religious principles, except insofar as a compelling governmental interest compells the state to curtail such privileges. It is another thing entirely to imply, offhandedly, that such a judicial proceeding somehow will expand or reinforce the free exercise privileges of employees, as stakeholders in the same enterprise from which they likewise derive their livelihoods. The latter do not possess and have never been entitled to claim free exercise privileges against the actions of capitalist employers. Justice Alito states the actual terms of the case more honestly in the last sentence of the paragraph from which I derived the previous quotes. "And protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies (Ibid, p 18 (emphasis mine))."
The Boundaries of Religious Liberty in a Rights Regime
In proceeding to elaborate the demands of religious liberty in a liberal "rights" framework, we face two distinct questions. First, what constitutes the subject of religious belief? Second, what limitations are imposed on the lived experience of religious belief by social existence? The questions here are too large to ever be adequately answered by this little section of a blog post. My response seeks to be suggestive of the potential expansiveness of free conscientious thought, commitment, and practice.
Succinctly, in coming to terms with what religion is, what religion does, and what religion can command as integral to its practice, I reject the notion that we can produce an exhaustive list of faith traditions and denominations that definitively qualify as religion. Religion is what the faithful say it is. The point that I am attempting to make here, in the broader context of an inquiry into the free exercise privileges of capitalist employees, is that it is not possible to qualify "sincere and substantiated" structures of belief in order to determine whether such structures merit protection by the First Amendment without imposing some arbitrary definitions on what rightly constitutes religious belief for the purposes of adjudication. Religion, or, more broadly, metaphysical speculation and faith in immateriality, underlies any and every systematic understanding of material existence, Marxism included. The "ultimate given" within a systemic theorization of material existence might be constituted by a belief in the incapacity of either introspective reasoning or empirical sensory observation and testing to unravel the complexity (overdetermination) of any particular material process within the universe, but such a belief is an article of faith, however minimalistic in its terms.
Allowing a wide berth to what actually constitutes religious faith, I think that there are some basic analytical terms that we can articulate in order to structure our understanding of religious/metaphysical thinking. Namely, every religious/metaphysical tradition lives out a particular set of relationships between the believer, the spiritual/metaphysical object of his faith/devotion, and the universe within which the believer is situated in relation to the myriad processes of material existence. I regard these conditions as a basic starting point for evaluating religion, even insofar as objects of faith and devotion lack a defined personality or a sense of divinity/immortality. At a basic level, most Buddhist traditions (though, perhaps, not Amida/Pure Land Buddhism), for example, lack the worship of a personal God, but situate believers toward a body of faith on the relationship between material existence and the immaterial/transcendent being. For that matter, what separates religion/metaphysical thinking from non-religious thinking or more broadly expressed secular beliefs and principles about material existence is not entirely clear. Differences may devolve onto questions about the relatively systemic character of a body of thought and beliefs in situating individuals in relation to the world and the universe of being. We are, thus, left with a quandry on determining the boundaries between religious/metaphysical beliefs and non-religious/secular dogmaticism, political, cultural, or otherwise. I want to sustain this incapacity to define boundaries between religion and non-religion in order to argue that freedom of conscience is a more encompassing subject than we might connect with long-established bodies of religious/metaphysical beliefs, grounded in transcendental theologies.
Where, in this complicated landscape of thought and practice, do we situate rigorously non-transcendental secular thinking/principles that solicit the adamant, passionate adherence of believers? If we rob it of its character as a systemic theorization of materiality, Marxism could fall among such bodies of thought. Many feminist theorizations probably do fall within this category. If they command the "sincere and substantiated" beliefs of their adherents, how are they different from bodies of religious faith like Christianity, Islam, or Buddhism for purposes of evaluating the merit of adherents' demands for freedom of conscience in practicing lives consistent with the terms of their secular/non-religious beliefs concerning the character of meaningful, morally just, and satisfying experience of life? I ask this question, in part, because I believe that there is something disingenuous or misconstrued in the assertion that Americans may be entitled to freedom of religion but not freedom from religion. The point here is not that the First Amendment uniquely privileges a defined set of religious doctrines for free exercise, unimpeded by the actions of the federal government/Congress. Rather, it guarantees individuals' freedoms of conscience against the actions of government, however the moral compasses of individuals are constituted by life experiences and learning. The idea of concentrating on particular faith traditions as if they are somehow prioritized for protection, thus, misconstrues, in my view, the thinking of the Founders on the central role of faith in the lives of individuals, however such faith is constituted and whatever it includes.
In the particular context of the Hobby Lobby case, we need to come to terms with where one particular life process, human sexuality, connected or disconnected from biological reproduction, fits within particular, individual manifestations of conscientious belief. My point is that sexuality exerts an immeasurably large influence on the mental and emotional processes of individuals and, as such, the place of sexuality and its role within the construction of conscientious beliefs cannot be underestimated, either for devout Christians or dogmatic, psychoanalytically-informed feminists. I find it incomprehensible that any faith tradition or body of principles, transcendental or wholly secular and materialistic, can constitute itself without saying something meaningful about the role of sexuality.
Acknowledging this point, we need to approach the second question that I presented above: what limitations does social existence place on religious belief? In other words, if freedom of conscience makes contradictory demands on different individuals, then how do we reconcile these differences? Emphatically, the First Amendment has an answer to this question that applies solely to the interference of Congress with individuals' freedom of conscience: the free exercise of individual beliefs must be respected at least to the extent that such beliefs do not intractably impede the performance of governmental practices of general applicability that are of a compelling interest to the polity and to the government that acts in its interests. By contrast, capitalism, as a particular organization of production (notwithstanding the particular understandings of surplus production defined by Marxism), has a different answer: the free exercise of individual beliefs belong to the capitalist entrepreneur, in the interest of which the particular beliefs of individual capitalist employees may be freely subverted as an adjunct to the terms of a labor market contract. The free conscience of individuals belongs to the political space in a liberal rights regime, while its economic spaces, characterized, on the one hand, by free entrepreneurial activity and, on the other hand, by the contracting of free labor, know only contractual specifications and limitations to the free consciences of free laborers.
Thus, returning to the specificity of particular Supreme Court precedents, in Braunfeld v. Brown (366 U.S. 599 (1961)) the Orthodox Jewish plaintiffs argued that the state of Pennsylvania had intruded on their free exercise privileges by forcing them to remain closed on Sunday after they had closed on Saturday for the Jewish Sabbath, effectively truncating the owners' economic liberty as entrepreneurs to operate their businesses in conformity with their sincere and substantiated religious beliefs. The plaintiffs lost their case before the Warren Court, but the idea that interests me here is that it is at least conceivable that certain workers for these businesses may have been devoutly Christian - labor markets may be institutions governed on a principle of selectivity by entrepreneurs, but such selectivity may not always preclude hiring of employees by entrepreneurs from distinct and diverse ethnic and religious communities, especially when non-discrimination of minorities is a legal priority. Presumably, such Christians would have benefitted from the decision of the Court - they would have retained the sanctity of the Lord's Day against the demands of their employer to earn revenues by opening for business, however at the expense of another day's pay (money won't pay your way into heaven!). In the judicial environment after the decision in Sherbert v. Verner (374 U.S. 398 (1963)), however, it is likely that Sunday closure laws like those enforced in Braunfeld and Gallagher v. Crown Kosher Super Market of Massachusetts (366 U.S. 617 (1961)) would have yielded to the free exercise privileges of religious minorities, affording their employees alternative days off. As such, devoutly Christian employees would have been compelled by their freedom of conscience to choose between their livelihood with a particular employer, possibly within a slack labor market, and free exercise of their faith, legally enforced by the state but invalidated through the operation of free labor market contracting. The very processes leading up to the Sherbert case (dismissal of an employee by a capitalist employer when the latter's business practices contradicted requirements of the employee's religious practices) fully demonstrate the same situation.
Ultimately, we are faced in this situation with a clash in the enforcement of individual liberties in political and economic spaces, where the force exerted on individual employees by economic processes may be compelling and where the rigorous and disproportional protection of the free exercise privileges of capitalist entrepreneurs against employees by government may contravene and collapse the free exercise privileges of employees per se. It is a zone where the presumptions of a liberal rights regime break down under the force of capitalist labor markets and class processes, illustrating why the particular Jeffersonian ethos embodied in the Bill of Rights may be wholly compromised in an economy no longer characterized by small yeoman farmers and free artisan craftspeople but by hired hands of capitalist entrepreneurs. At this point, we reach the margins of what the liberal rights paradigm can inform us regarding the effects of a disproportional distribution of free exercise privileges and must transition to another mode of analysis that takes class processes as its point of departure: a class analytic Marxist analysis.
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