Duty or dignity? Competing approaches to the free exercise rights of for-profit corporations.

• Author: Churchill, Spencer

INTRODUCTION

Corporate free exercise (1) has garnered much attention since the Department of Health and Human Services issued a regulation under the Affordable Care Act (2) requiring most employers to include coverage of preventive health services including contraceptives in their employees' health insurance policies. (3) Given the rhetorical characterization of the regulation as a "contraception mandate/' a position on corporate free exercise is easily mistaken for a position on contraception. Yet neither of the corporations currently challenging the regulation before the Supreme Court object to contraception, and the government's arguments prove not only that it may require corporations to provide coverage of contraceptives but also that it may force for-profit corporations to facilitate what their owners view as an immoral taking of human life. (4) Whatever position one takes on contraception, the question of corporate free exercise deserves to be assessed in its own right. As this Note goes to press, the Supreme Court is deliberating on two corporate free exercise cases: Sebelius v. Hobby Lobby Stores, Inc. (5) and Conestoga Wood Specialties Corp. v. Sebelius. (6) This Note uses the arguments in Hobby Lobby and Conestoga Wood to explore the implications for corporate free exercise of the scholarly debate between leading advocates of religious liberty whose positions it characterizes as originalist and liberal. (7)

Part I of this note lays the necessary groundwork for this analysis, explaining how and why the Note categorizes the legal arguments that have been presented in these cases as either originalist or liberal. Part II shows that the originalist and liberal frameworks cannot lead to agreement on whether corporations, as such, have free exercise rights. Part III shows that these frameworks can, but do not necessarily, reach consensus on the conclusion that corporations have standing to vindicate the free exercise rights of individuals. Part IV concludes with general observations about the contrasting approaches of the originalist and liberal frameworks.

1. ORIGINALIST AND LIBERAL ARGUMENTS

   Originalists and liberals provide fundamentally different answers to a question prior to that of corporate free exercise: What is the reason for religious exemptions of any sort? The originalist approach outlined by Michael McConnell makes a historical argument that the Free Exercise Clause was written in light of a belief that the exercise of religion is conformity with a set of duties owed to a deity with higher authority than the state. (8) Religious exemptions therefore served to resolve conflicts between religion and the state that "were conceived not as a clash between the judgment of the individual and of the state, but as a conflict between earthly and spiritual sovereigns." (9) This duty-driven and God-centered justification of religious exemptions applies with equal force to any entity that could be subject to duties imposed by a deity, which is to say, any entity that could exercise religion. In this framework, the nature of the entity making a free exercise claim is of interest only if it makes the claimant inherently incapable of exercising religion. The justification for a free exercise claim is that an exercise of religion, understood as an action taken in conformity with a duty to God, is burdened.

   The liberal approach outlined by scholars such as Douglas Laycock takes the focus off of duty and deity and turns it toward human dignity. (10) In this view, free exercise is based on the recognition that attempting to control religious beliefs and actions threatens liberty, embroiling the state in questions that matter little for purposes of civil government but implicate strong feelings and beliefs for individuals. (11) This justification of religious exemptions applies only to an entity whose liberty is of equal value to that of an individual human being--either because the entity's own feelings and beliefs are as intense as those of a human or because the entity's actions are inseparably linked to the religious liberty of humans. Religious liberty is derived from dignity, and dignity is derived from the capacity to hold a belief with such strong commitment that being forced to violate the belief would evoke strong and negative feelings. In the dignity-driven and individual-focused liberal framework, the justification for a free exercise claim is that the regulation from which the claimant seeks an exemption applies to an actor that has the capacity for strong beliefs and emotions. (12)

   Practical implications follow from the fundamental difference between the originalist framework and the liberal framework. (13) The originalist framework posits that free exercise protects a certain type of action--religious action. By contrast, the liberal framework posits that free exercise protects a certain type of actor--an actor with dignity equal to or greater than that of a human in all ways relevant to the exercise of religion. The originalist focus on the action protected justifies the presumption that every actor, whether human or not, has free exercise rights. This presumption may be rebutted only by evidence that an actor is intrinsically incapable of performing duties imposed by a deity, that is, incapable of exercising religion. (14) By contrast, the presumption that flows from the liberal focus on dignity is that an entity other than a human does not have free exercise rights. This presumption may be rebutted by evidence that an actor is capable of acting in a manner that commands the same respect as a human's exercise of religion. (15) Judge Matheson wrote in his Hobby Lobby opinion, "[T]he majority asks, 'Where did Hobby Lobby and Mardel lose their Free Exercise rights?' But this begs the question of whether these entities acquired such rights." (16) This observation reflects how the competing presumptions of originalists and liberals lead to fundamentally different approaches not only in scholarship but also in litigation and in judicial decisionmaking.

   Legal battles are not always fought on the terms that shape academic debates. For this reason, it may not be immediately apparent that the legal arguments regarding corporate free exercise can be categorized as originalist or liberal. A conventional categorization of arguments according to their reliance on textualism, originalism, purposivism, living constitutionalism, or precedent may seem more apt, and for some purposes it might be. Nevertheless, the legal arguments concerning corporate free exercise can be assessed in terms of their consistency with an underlying assumption that free exercise protects a certain type of action, as the originalists say, or that free exercise protects a certain type of actor, as the liberals say. Categorizing arguments based on these underlying assumptions facilitates exploration of the practical ramifications of the debate between originalists and liberals.

2. DO CORPORATIONS THEMSELVES HAVE FREE EXERCISE RIGHTS?

   The natural starting point in assessing a for-profit corporation's ability to seek a religious exemption is to ask whether corporations, as such, have free exercise rights. Three originalist arguments that corporations do have free exercise rights have been presented. First, corporations enjoy all First Amendment rights under First National Bank of Boston v. Bellotti, (17) which recognized that the First Amendment protects rights, not actors. Second, the Free Exercise Clause applies to for-profit corporations in the same way that it applies to nonprofit corporations because its text makes no distinction between the two types of actors. Third, corporations are persons under the Religious Freedom Restoration Act (RFRA) (18) and the principles of corporate law. Liberal counterarguments are made at each point, suggesting that religious liberty is a personal right under Bellotti that corporations cannot share, that the rights of nonprofit corporations do not shed light on the rights of for-profit corporations, and that corporations cannot reasonably be treated as persons for purposes of free exercise. The arguments presented in Hobby Lobby and Conestoga Wood suggest an irreconcilable disagreement: Originalists can make no cognizable argument against the free exercise rights of corporations as such and liberals can make no plausible argument for the free exercise rights of corporations as such.

   1. Originalist and Liberal Disagreement on the Argument from First National Bank of Boston v. Belloti

      According to Conestoga Wood, the Supreme Court established as a general matter in Citizens United (19) that "First Amendment protection extends to corporations" (20) even if they seek a profit. (21) Although this proposition theoretically could have been based on a liberal view that equated the dignity of corporations with that of individual humans, the Supreme Court's citation to First National Bank of Boston v. Bellotti (22) in support of its statement (23) clarifies that it was in fact based on the view, consistent with the originalist framework, that the claimant's identity as a corporation is irrelevant to its claim to have First Amendment rights. Bellotti established that the proper question to ask in determining whether a First Amendment right is at stake is "not whether corporations 'have' First Amendment rights and, if so, whether they are coextensive with those of natural persons," but "whether [the law] abridges [a right] that the First Amendment was meant to protect." (24) In other words, the argument is that the First Amendment protects rights, including the right to engage in religious conduct, without regard to whether the actor asserting them is an individual or a corporation. (25)

      The Third Circuit rejected this argument in its Conestoga Wood decision and emphasized Bellotti's statement that some constitutional rights may be identified as "purely personal" and unavailable to corporations based...