Corporations Are People, My Friend, But Can They Have Religious Beliefs Too?

Dang Apricot
Does Hobby Lobby Have Religious Beliefs?
Mitt Romney caught a lot of flak for saying "corporations are people, my friend" when responding to a heckler on the campaign trail last year. Many people -- mostly liberals -- were incensed, noting that this showed Romney's solicitude for big business over the "little guy."

Set aside the fact that this suspicion is probably true; people misunderstood what Romney was trying to say. This is because the law does recognize corporate personhoood -- they can sue and be sued (you can't sue you neighbor's dog, in contrast), and they do have some Fourth Amendment rights against unreasonable searches of their property. So Romney was right, in his own ham-handed way.

Similarly, when the Supreme Court decided Citizens United (the campaign finance decision), liberals tended to attack the decision for the wrong reason: the issue, from an effects standpoint, was not that corporations have some free speech rights, it was that corruption/bribery was the only allowable basis to limit corporate speech (and unions' speech, as well). It's unexceptionable that the Constitution has something to say about the free speech rights of corporations -- the issue is how far we let those rights go.

And now the Supreme Court (SCOTUS) is going to decide whether corporations can avoid the Obamacare provision requiring them to provide birth-control (and related services) to female employees when it violates the individual owners' religious beliefs.

Hobby Lobby, while a corporation, is family owned. And it is owned by Christians:

In Hobby Lobby's official statement of purpose, the Greens [the family who own Hobby Lobby] commit to "[h]onoring the Lord in all we do by operating the company in a manner consistent with Biblical principles."

The other cases -- they're "consolidated," in the jargon -- involve a small wood cabinet making company owned by Mennonites and the third involves another family owned corporation in Michigan whose owners are devout Roman Catholics. Stripped of all the legal jargon, the issues these cases present is straightforward: can for-profit, secular corporations exempt themselves from the birth-control mandate given that the law requires them to do something that offends their religious beliefs? That is, do the corporations have free-exercise of religion rights or are they "persons" under a federal statute protecting religious rights, an issue SCOTUS has never ruled on?

The lawyers for the corporations -- and it is no accident that they are all family-owned businesses -- contend that there should be a "pass through" exception to the law, such that the religious beliefs of the individuals who own the businesses pass through to the corporate entity.

Three of the five business who challenged the birth-control mandate in the lower courts lost. This creates a "circuit split" (the law is different in different parts of the country), thus SCOTUS was almost surely going to take the case to resolve the issue.

Before we get to prognostications, it is probably worth noting that this case would not be a case were it brought by Rastifarians -- it cannot be disputed that smoking marijuana is a deeply held religious belief of theirs -- or implicated certain practices of fundamentalist Islam -- Fox News would have smoke blowing out of its ears. Christian conservatives are a sizable and vocal religio-political group that have a sympathetic ear among parts of the populace and politicians, mainly, in the the Republican Party.

In any event, do we feel comfortable forcing small, family owned business to provide services that they genuinely find distasteful and offensive? But don't we give up some of our individual constitutional rights when we set up a business entity which is legally distinct from our individual self? But on the other other hand, constitutional law professor Brannon Denning, says, "I wonder how the church in City of Boerne v. Flores was organized? That case, after all, is what spawned [the federal religious rights statute] and churches aren't any more "persons" [for purposes of the statute] than corporations are."

The case involving the religious rights statute, then, will likely be 5-4 -- if the conservative justices think that corporations are like churches -- or 9-0 (or 8-1, depending on Justice Thomas's vote) if the justices the think that churches explicitly religious purpose is an important distinction from for-profit corporations no matter their owners' religious beliefs. The First Amendment issue is essentially the same: either the conservative justices bite off on expanding the free-exercise rights of closely-held corporations (the Court would like limit its ruling to these facts) or SCOTUS effectively says "enough is enough" to the corporate entities' pleas. Either way, by June 2014, we will know if corporations "got religion."

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