Posted by Curt on 26 November, 2013 at 1:14 pm. Be the first to comment!


Jeffrey Rosen:

The Supreme Court today agreed to hear two cases involving the most hotly contested and far reaching question from the latest round of constitutional challenges to the Affordable Care Act: Do corporations have the same religious liberty rights as individuals? The cases arose out of the Obama administrations’ decision, under threat of litigation, from religious liberty groups like the Beckett Fund, to exempt churches, organized as non-profit corporations, from the ACA’s requirement that all businesses provide their employees with health insurance coverage related to contraception.

HobbyLobby640Now the Beckett Fund and other scholars are arguing that the ACA’s exemption for religious non-profits is too narrow and that all corporations, profit and non-profit alike, should be able to claim an exemption from the contraception mandate because, according to the Citizens United case, corporations have the same First Amendment rights as individuals.

The case has huge significance because, if the broad version of the constitutional challenge is accepted, any for-profit corporations whose owners claim that they are organizing their businesses to further religious principles could claim exemption from a host of federal regulations. As Judge Illana Rovner pointed out in her dissent from the Seventh Circuit case granting a religious exemption to the health care mandate to for-profit corporations, a ruling along these lines “has the potential to reach far beyond contraception and to invite employers to seek exemptions from any number of federally-mandated employee benefits to which an employer might object on religious grounds.”

For example, Judge Rovner noted, an employer who is a Methodist and objects to stem cell research might refuse to cover an employee’s participation in a clinical trial of stem cell research for Lou Gehrig’s disease; an employer who is a Christian scientist might insist that the ACA’s mandate of coverage for traditional medical care is a violation of his religious beliefs; and an employer who is a Southern Baptist and objects to gay marriage and surrogacy might refuse family leave to gay employees that would otherwise be required under federal law.

The question of whether corporations have the same religious liberty rights as individuals is both hugely significant and open-ended: As the Obama administration and the Third Circuit Court of Appeals have noted, before this litigation began, no court had found that “a for-profit, secular corporation” had the same First Amendment rights as individuals to the free exercise of religion.

Five federal circuit courts have now issued rulings on the constitutional challenges. The Seventh, Tenth, and D.C. Circuits have accepted the challenges, for different reason, and  the Third and Sixth circuits have rejected the challenges. Several of the judges who have found that for-profit corporations profit have the same religious freedom rights as individuals have cited the court’s Citizens United holding that corporations and individuals have the same First Amendment rights of free expression for the purposes of campaign finance law.

For example, the majority in the Hobby Lobby case wrote that: “Because Hobby Lobby and Mardel express themselves for religious purposes, the First Amendment logic ofCitizens United, where the Supreme Court has recognized a First Amendment right of for-profit corporations to express themselves for political purposes, applies as well.” Similarly, Judge Kent Jordan’s dissent in the Third Circuit cited Citizens United and dismissed the fact that there is no historical precedent for treating for profit corporations like individuals when it comes to the free exercise of religion. “While authority is admittedly scanty, that is in all probability because there has never before been a government policy that could be perceived as intruding on religious liberty as aggressively as the Mandate, so there has been little reason to address the issue,” he wrote.

“By contrast, those judges who have rejected the constitutional claim argue that “Citizens United represents the culmination of decades of Supreme Court jurisprudence recognizing that all corporations speak,” as the libertarian conservative Judge Janice Rogers Brown wrote for the U.S. Court of Appeals for the D.C. Circuit. “When it comes to the free exercise of religion, however, the Court has only indicated that people and churches worship. As for secular corporations, the Court has been all but silent.”

In a recent podcast debate hosted by the National Constitution Center, Michael McConnell of Stanford Law School and David Gans of the Constitutional Accountability Center drew opposite conclusions from constitutional history about whether corporations have the same religious liberty rights as individuals. Citing McConnell’s historical scholarship, Gans argued in the podcast and his brief to the Supreme Court that “the Founding generation well understood that the First Amendment’s guarantee of free exercise was an inalienable individual right, inextricably linked to the human capacity to express devotion to a god and act on the basis of reason and conscience.” He also emphasized that English common law during the Founding generation sharply distinguished between religious and other private corporations.

In his response, McConnell emphasized that the modern business corporation didn’t exist at the time of the Founding, that it wasn’t until the 1840s that ordinary people were able to organize their businesses in corporate form, and no one thought the precise corporate organization of an entity—for profit or non-profit, corporation or sole proprietorship—deprived its owner of constitutional rights. McConnell’s arguments are amplified in this comprehensive scholarly argument by Mark Rienzi of the Beckett Fund that denying religious liberty rights to for profit corporations would single them out for discriminatory treatment in ways that the First Amendment forbids.

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