Corporate religious liberty.

AuthorCorbin, Caroline Mala
PositionSymposium: Money, Politics, Corporations and the Constitution

INTRODUCTION

Do for-profit corporations have a right to religious liberty? That is, may a business that sells craft materials or manufactures wood cabinets be excused from obeying a law because it imposes a substantial burden on its religious conscience? This question was front and center in Burwell v. Hobby Lobby Stores, Inc. (1) According to the Supreme Court, the answer is yes: Corporations are "persons" entitled to religious exemptions under the Religious Freedom Restoration Act.

The Hobby Lobby case was one among dozens challenging the Obama administration's "contraception mandate." The Affordable Care Act requires large employers to provide health care insurance that offers basic preventive care at no extra cost to employees. (2) For women, basic preventive care includes FDA-approved contraception. (3) This contraception requirement triggered intense religious opposition. For example, Catholic doctrine condemns artificial birth control, and the United States Conference of Catholic Bishops (USCCB) complained that the mandate represents "an unprecedented ... violation of religious liberty." (4) The President of USCCB went so far as to decry the mandate as "simply un-American." (5)

Not all employers, however, were affected by the contraception mandate in the same way. Religious employers such as churches, synagogues, mosques, temples, and their auxiliaries have always been completely exempt. (6) Religiously affiliated non-profit employers such as Catholic Charities are essentially exempt, (7) and were for a long time protected by a safe harbor while the administration finalized its compromise plan. (8) Consequently, challenges brought by for-profit corporations were the first to reach the Supreme Court. (9)

Corporate plaintiffs asserted that forcing them to provide contraception violated their right to religious liberty guaranteed by the Free Exercise Clause (10) and the Religious Freedom Restoration Act. (11) Hobby Lobby Stores, Inc., a national chain of arts and crafts stores, sought an exemption from the contraception mandate on the ground that requiring it to offer employees certain types of birth control violates its religious conscience. (12) The plaintiff in a companion case, Conestoga Wood Specialties Corporation, a manufacturer of wood cabinets, advanced similar claims, (13) as have businesses that sell outdoor power equipment, (14) recycle scrap metal, (15) and manufacture vehicle safety systems (16) and HVAC equipment. (17)

Whether the Free Exercise Clause and the Religious Freedom Restoration Act protect corporate "people" in the same way they protect natural people was a question of first impression. For-profit corporations had never before sought conscientious objector status and the Supreme Court had never before evaluated corporate religious liberty. (18) While the Supreme Court did not reach the Free Exercise Clause question, it did rule that the Religious Freedom Restoration Act (RFRA) covers closely-held (19) for-profit corporations. (20) It also concluded that the objecting businesses should be exempt from the contraception mandate. (21)

From start to finish, much of the Court's reasoning is questionable. Rather than focus on the Court's missteps when applying RFRA's substantial burden and strict scrutiny tests, (22) this Article criticizes the necessary predicate: (23) the idea that for-profit corporations possess religious rights and qualify for religious exemptions. (24)

There is no principled basis for corporate religious liberty. (25) For-profit corporations lack the inherently human characteristics that justify religious exemptions for individuals. They cannot, for example, be said to possess either a relationship with God or inherent dignity. Nor do they possess the unique qualities that arguably justify exemptions for churches. Unlike churches, for-profit corporations are not sacred, primarily religious, or the source of theological truth. They are not even voluntary associations--employees at for-profit corporations simply cannot be equated to the voluntary members of a church. Furthermore, the deleterious consequences of corporate religious liberty, magnified by corporations' extensive power, argue against its recognition. Part I addresses the theoretical question and Part II discusses the harmful results of corporate religious liberty.

PART I: THE ILLOGIC OF CORPORATE RELIGIOUS LIBERTY

The Free Exercise Clause and the Religious Freedom Restoration Act are meant to protect the religious practices of individuals and churches. At the core of religious liberty is respect for the religious conscience of natural people. This is a uniquely human characteristic that corporations do not possess. Furthermore, attempts to equate for-profit corporations to churches and other voluntary religious associations are bound to fail. Thus, the reasons to protect people and churches do not apply to for-profit corporations.

While Hobby Lobby relied on RFRA rather than the Free Exercise Clause, RFRA is inextricably connected to the Free Exercise Clause. Congress passed RFRA in response to Division, Department of Human Resources v. Smith, (26) a Supreme Court decision that weakened Free Exercise Clause protection. As the "Restoration" in its name indicates, RFRA was intended to restore as a matter of statutory law the pre-Smith constitutional test. RFRA's language also demonstrates that it meant to track the Free Exercise Clause. For example, RFRA's statement of purpose discusses religious liberty in terms of the Free Exercise Clause, noting that "the framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution." (27) The original statute also defined "exercise of religion" as "the exercise of religion under the First Amendment to the Constitution." (28) Thus, RFRA's text explicitly connected the scope of its protection to the protection offered under the Free Exercise Clause. (29) Because the Religious Freedom Restoration Act is informed by free exercise jurisprudence, the analysis focuses on religious liberty under the Free Exercise Clause.

  1. RELIGIOUS LIBERTY AS A PERSONAL RIGHT

    Religious liberty may be conceived as enabling the individual to fulfill her religious obligations or as respecting the individual's autonomous religious decisions. (30) Either way, it is meant to protect uniquely human attributes: a person's relationship with God, (31) or a person's conscience, dignity, and autonomy. Consequently, religious liberty is uniquely human, and it makes no sense to extend it to for-profit corporations. Indeed, although the Supreme Court dismissed any difference between a profit-seeking person and a profit-seeking corporate person, (32) the distinction is obvious: only one involves an actual human being.

    Whether a particular constitutional clause reaches for-profit corporations depends not on the personhood of the corporation but on the scope of the clause. In deciding whether corporations are "persons" protected by the Constitution, the Supreme Court has sometimes answered "yes," (33) and sometimes answered "no." (34) It has never announced an overarching framework for analyzing corporate rights. (35) The closest the Court came to doing so was in a footnote in First National Bank of Boston v. Bellotti, (36) where it wrote that certain "purely personal" guarantees do not extend to corporations (37) and that "[w]hether or not a particular guarantee is 'purely personal' or is unavailable to corporations for some other reason depends on the nature, history, and purpose of the particular constitutional provision." (38) In other words, whether a constitutional provision should apply to a corporation depends on what exactly it is meant to protect. (39) If the Free Exercise Clause protects something that is unique to natural people, then its protection should be limited to natural people.

    Despite scholarly disagreement about its perimeters, there is near universal agreement that at its core the Free Exercise Clause protects individual religious conscience. (40) In Wallace v. Jaffree, for example, the Supreme Court wrote: "As is plain from its text, the First Amendment was adopted to curtail the power of Congress to interfere with the individual's freedom to believe, to worship, and to express himself in accordance with the dictates of his own conscience." (41) Nor was this the only time the Supreme Court made this point. (42)

    1. Religious Justification

      Why protect religious conscience? James Madison articulated a religious justification in his Memorial and Remonstrance Against Religious Assessments when he argued, "It is the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him." (43) Accordingly, the state should not hinder anyone from meeting her religious obligations. (44) As Justice Souter explained, "[T]he [Free Exercise] Clause was originally understood to preserve a right to engage in activities necessary to fulfill one's duty to one's God." (45)

      Failure to allow religious people to follow their conscience or meet their obligations may lead to great spiritual harm. Religious commandments are sometimes coupled with the threat of eternal punishment. Those acting out of love or duty (46) rather than (or in addition to) fear may also suffer if unable to fulfill their religious duties. (47) The Free Exercise Clause helps "avoid[] the cruelty" of forcing people to violate their religious beliefs. (48)

    2. Secular Justification

      A more secular reason to protect religious practice focuses on honoring individual autonomy. One need not agree with someone's deeply held religious beliefs in order to conclude that there is value in respecting her decision to follow them. Ensuring personal autonomy--that is, individual self-determination (49)--is a touchstone of constitutional rights. (50) "Certain 'zones of conscience' are entitled to legal...

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