The Sulzberger Compromise

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

The New York Sun

In respect of the Supreme Court’s hearing this week in Hobby Lobby v. Sebelius we have been nursing the idea of a compromise. If it were up to us, we’d rule for Hobby Lobby and the Green Family and the Hahns and their kith, whose company, Conestoga Wood Specialties, is also before the court seeking protection from the birth control mandate of Obamacare. By our lights, they, and all similarly situated religious persons, deserve accommodation. Otherwise, who’s next?

We’re an accommodating sort, however, and we’ve been wrestling with a compromise to salve the New York Times, which is in a terrible swivet about the fact that the Greens and Hahns are acting through what the Times insists are “two secular, for-profit-corporations.” It’s one thing, the Times seems to figure, to claim protection for an individual under the free exercise clause of the First Amendment. It’s another thing to claim protection for a “secular, for profit” corporation.”

So how about a compromise in which the Supreme Court either a) denies or b) extends full First Amendment protection to all for-profit, secular corporations? This is a plea for consistency. The First Amendment, after all, prohibits Congress from interfering with — making any law abridging — five freedoms. Religion. Speech. The press. Peaceable assembly. Petition of the government. But the aforementioned Amendment doesn’t say a thing, one way or another, about any corporation.

It doesn’t say that Congress shall make no law prohibiting the free exercise of religion “except if it is exercised through a for-profit corporation.” It just says “no law.” It doesn’t say Congress shall make no law abridging freedom of the press “except if it is exercised through a for-profit corporation.” It just says “no law.” It doesn’t say Congress shan’t make a law abridging the freedom to petition the government except when it is done via a corporate lobbyist. One gets the drift.

So under our compromise — we call it the “Sulzberger Compromise” — the Court would rule that the First Amendment applies to either all corporations or none of them and that, in any event, it must be consistent across all five freedoms. If the Court denies free exercise to the Greens and the Hahns because they are acting through a corporation, it would also deny press freedom to the Sulzberger family corporation.

In a worst-case scenario, this could mean that the Times would be broken up and hived off in pieces to its individual family members (or scattered among the financial shareholders), to be operated as little sole member limited liability companies known as disregarded entities. Presumably the Green family would have to do the same thing with their Hobby Lobby stores if they lose their fight against the application of the birth control mandate.

In a best-case scenario, the Green and Hahn families would be excused from the birth control mandate, because it unduly burdens their free exercise of religion under the Religious Freedom Restoration Act. For consistency sake, the Sulzberger family would then be permitted to use their for-profit, corporate vehicle, the New York Times Company, to publish the New York Times newspaper. That might well infringe on the sensibilities of their employees who are religious and don’t like what the Times says about religion. But they would have to accept it or go work for another paper. Whichever way the court goes, what’s good for the goose ought to be good for the gander.


The New York Sun

© 2024 The New York Sun Company, LLC. All rights reserved.

Use of this site constitutes acceptance of our Terms of Use and Privacy Policy. The material on this site is protected by copyright law and may not be reproduced, distributed, transmitted, cached or otherwise used.

The New York Sun

Sign in or  create a free account

By continuing you agree to our Privacy Policy and Terms of Use