The Supreme Court appears to be on the verge of opening a Pandora’s box, spilling forth all sorts of travails by inventing another new right for corporations, this time for religious worship. The founders would surely be astounded.
At issue in a March 25 Supreme Court hearing on Sebelius v. Hobby Lobby was whether two corporations with thousands of employees could refuse to pay for some forms of birth control under the Affordable Care Act because it violates the religious beliefs of the corporations.
The corporations, Hobby Lobby Stores and Conestoga Wood Specialties, are named parties along with their principal owners. The companies object to paying for some female forms of birth control — notably the intrauterine device and morning-after pill — that some people regard as subtle forms of abortion. The companies assert that being required to pay for insurance which allows for these forms of birth control violates the First Amendment (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”).
Can a corporation hold religious beliefs? It cannot.
Can a corporation engage in the free exercise of religion? It cannot.
Indeed, a corporation cannot exercise religion or have any beliefs because it is merely an inanimate vessel, a box, as it were, to contain liability for debts, for misconduct and even for criminality, thus shielding its owners.
A corporation is a person under the law, as Republican presidential candidate Mitt Romney pointed out on the campaign trail two years ago. But “person” is not synonymous with “human being.” A more precise way to describe a corporation is as a legal person or entity, a thing with a distinct existence but not life.
Yet numerous supporters claim such an invented right of religion for corporations — an assertion that surely offends some people as sacrilegious.
For example, Ed Whelan, a lawyer who was once Justice Antonin Scalia’s clerk, wrote in National Review of “recognizing a corporation’s exercise of religion” and asserting that the Affordable Care Act “does violate” the 1993 Religious Freedom Restoration Act and the First Amendment’s free exercise clause.
Such claims don’t hold up to scrutiny.
‘Obedience to a general law’
The current case stems in part from a 1990 Supreme Court ruling (Employment Division, Department of Human Resources of Oregon v. Smith) written by Justice Antonin Scalia, who says that he bases his opinions on the original intent of the framers.
The case involved two Native Americans fired for using peyote as part of a religious ceremony and who were then denied unemployment benefits by the state of Oregon.
As in the current case, no one questioned the sincerity of the religious beliefs of the human beings.
Scalia wrote that the peyote case “requires us to decide whether the free exercise clause of the First Amendment permits the state of Oregon to include religiously inspired peyote use within the reach of its general criminal prohibition on use of that drug, and thus permits the state to deny unemployment benefits to persons dismissed from their jobs because of such religiously inspired use.”
Scalia and the majority held that “conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs.”
That ruling was effectively overturned with a 1993 law, the Religious Freedom Restoration Act, sponsored by senators with a broad range of views, including Republican Orrin Hatch of Utah and Democrat Ted Kennedy of Massachusetts. The act states that “governments should not substantially burden religious exercise without compelling justification.”
The law then provides that government can limit “a person’s exercise of religion only if it demonstrates that application of the burden to the person … is in furtherance of a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest.”
If we could resurrect the framers, they would surely find the idea that a corporation has First Amendment religious rights laughable.
The facts presented by Hobby Lobby and Conestoga appear to stray far from meeting that standard. Government has a compelling interest in promoting health and not interfering in decisions between a patient and her doctor, while the mere inclusion of a specific health practice does not affect the owners’ ability to worship.
The companies and their owners seek to impose their religious views on their employees, interfering with the free exercise rights of more than 10,000 people whose choice of birth control, if any, ought to be decided by them, in consultation with their physicians.
New corporate rights
If the court creates this new corporate religious right, it will be the third major constitutional right the court has invented for corporations, overturning long-standing precedents.
The first came in the 1886 Santa Clara County v. Southern Pacific Railroad case when the court, without a hearing, had its official court reporter issue a statement declaring that the 14th Amendment’s equal protection clause applied to corporations, granting them legal personhood and property rights. The official who issued the statement, in a case involving taxation of railroads, was a former railroad president.
The second came in the 2010 Citizens United ruling, which held that corporations (and other organizations such as unions) had political rights and could spend unlimited sums seeking to influence elections on the theory that spending is a protected form of speech under the First Amendment.
The first right is arguable but intuitively easy to understand. Corporations are property, and without a power to defend that property a company could be destroyed.
The second right, though, is troubling. It ignored principles that the late Chief Justice William Rehnquist articulated in dissenting from a 1978 case known as Bellotti. Rehnquist said the court should pay deference to legislators, who in many states in many periods of time enacted laws to limit the corrupting influence of corporate money on politicians.
This third and newly imagined right would imbue soulless corporations with the rights to worship deities — something that corporations cannot do.
Questions posed by several Supreme Court justices in the Hobby Lobby and Conestoga case hearing presupposed that a corporation can possess religious beliefs and therefore a right to act on those beliefs.
From its earliest First Amendment cases the high court has distinguished between the absolute right to hold beliefs, the not-quite-so-robust right to express those beliefs in writing and speech and finally the less expansive right to act based on religious belief.
In its first major religious freedom case, Brigham Young’s aide had himself tried for bigamy to determine whether polygamy was protected by the free exercise clause. The church lost.
A plethora of troubling cases
In the event the high court embraces this invented corporate right, under the guise of religion, to pick and choose which generally applicable laws a company must obey, it raises an immediate question, one posed by Chief Justice John Roberts during the hearing.
Noting that the two companies are family-owned, Roberts mused that whether the issues raised might apply “in the other situations is a question that we’ll have to await another case when a large publicly traded corporation comes in and says, ‘We have religious principles.’ ”
Roberts expressed doubt that would happen. I think it is inevitable.
It could come from a company, professing Catholic religious beliefs, concerning condoms, for example; from kosher and halal food companies about whether women can work in the same room as men or whether a mother should be allowed employment at all. Those are among the plethora of troubling cases sure to vex the courts if the conservative majority on the Supreme Court invents out of whole cloth a corporate right of religious belief and exercise.
The framers were skeptical of corporations, few of which existed in the 18th century. They disliked their limits on personal responsibility and their history of abuses. The framers also made sure that America would be a secular nation, protecting equally the beliefs of the faithful and atheists while prohibiting any test of religious belief for those seeking office.
And if we could resurrect the framers, they would surely find the idea that a corporation has First Amendment religious rights laughable. We should too.