Free speech, free press, free religion? The clash between the Affordable Care Act and the for-profit, secular corporation.

• Author: Silvestri, Elizabeth M.

"The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right." (1)

1. INTRODUCTION

   United States Supreme Court Chief Justice John Marshall established the long accepted legal definition of a corporation when he stated that a "corporation is an artificial being, invisible, intangible, and existing only in contemplation of law." (2) Although the legal definition of a corporation explicates its nonhuman status, corporations are viewed as persons in the eyes of the Court. (3) Over time, corporations have slowly gained more and more constitutional protections. (4) Courts have awarded constitutional protections to corporations as long as those guarantees are not "purely personal." (5) If a constitutional provision's purpose, nature, and history indicate it is a purely personal guarantee, that provision is not applicable to corporations. (6) Additionally, constitutional protections can apply to corporations but not as fully as these protections do to individual persons. (7)

   A corporation's rights under the Constitution were first recognized in Trustees of Dartmouth College v. Woodward, (8) Corporations soon found protection under numerous constitutional amendments, including the Fifth Amendment's bar against double jeopardy in United States v. Martin Linen Supply Co. (9) and the Fourth Amendment's protection against unreasonable searches and seizures in G.M. Leasing Corp. v. United States. (10) The Court abided by its purely personal guideline, however, and prohibited the applicability of certain constitutional protections to corporations. (11) With specific regard to the First Amendment, corporations gained free speech protection in the landmark decision Citizens United v. Federal Election Commission. (12) Whether or not corporations are granted other First Amendment rights, however, remains unclear. (13)

   Contention surrounding the applicability of all of the First Amendment's guarantees stemmed from the enactment of the Patient Protection and Affordable Care Act (ACA). (14) The ACA was enacted in March 2010 in an attempt to increase the number of Americans who have health insurance, while decreasing overall health care costs. (15) Under the ACA, a corporation with fifty or more full-time employees must provide its employees with minimal levels of health insurance, which include women's "preventive health services" covering abortifacient contraception coverage. (16) After its enactment, numerous corporations sought injunctive relief from this portion of the ACA, on the premise that it violated these corporations' religious beliefs, as protected by the First Amendment's Free Exercise Clause and the Religious Freedom Restoration Act (RFRA). (17) Thus, the Supreme Court was faced with the decision of whether it must extend religious freedom protections to for-profit, secular corporations. (18)

   While the majority of courts faced with this issue were not persuaded to extend First Amendment or RFRA guarantees to corporations, the Supreme Court agreed with the few judges that have found merit in that proposition. (19) This Note argues that the Supreme Court erred in holding that the RFRA applies to for-profit, secular corporations because corporate purposes are not analogous to the purposes of either of the two provisions therein. Part II.A of this Note will explore the historical development of the corporation, in terms of its constitutional rights, and Part II.B will look specifically at the First Amendment. (20) Next, Part II.C will explain the ACA and its requirements on corporations. (21) Part II.D will look at how the circuit courts addressed these issues. (22) Next, Part III.A will then analyze how prior case law and corporate personhood theories should have barred the application of the RFRA to for-profit, secular corporations. (23) Part III.B will analyze the Supreme Court's decision in light of case law and corporate personhood theories. (24) Lastly, Part IV concludes by discussing the detriment of this decision on corporate power. (25)

2. HISTORY

   1. The Legal Progression of the Corporation

      Corporate personhood originated during the nineteenth century under the artificial person theory, also called the concession theory. (26) This theory viewed corporations as artificial beings that were created by the state after the state approved the corporation's charter. (27) Chief Justice Marshall embodied the main premise of this maxim in his description of a corporation in Trustees of Dartmouth College v. Woodward (28) stating, "A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law." (29) The primary purpose of the corporation under this theory was to serve the public good. (30) Although corporations did not receive protection from constitutional amendments under this model, Woodward proved corporations could find solace within the Constitution generally. (31) This decision gave the corporation some power independent of the state and initiated corporate constitutional protection. (32)

      Corporations' freedom from the state continued to grow in the second half of the nineteenth century. (33) During this time, another view of corporate personhood developed, known as the aggregate theory. (34) This theory focused on the individuals that comprised the corporation. (35) This philosophy concluded that the corporation could not be considered a separate entity, because the corporation could not exist or survive without the individuals within it. (36) Additionally, under the aggregate theory, individuals were thought to have created the corporation for their own mutual benefit, rather than for the benefit of the public. (37) The corporation was able to gain the protection of a constitutional amendment following this theory because the rights of the corporation were thought to be an extension of the rights of the people who comprised it. (38)

      Corporations continued to gain constitutional protections as a third concept of corporate personhood developed in the twentieth century. (39) The real entity theory perpetuated the idea that the corporation was separate from both the state and the individuals that comprised the corporation. (40) Under the real entity theory, the corporation itself is an independent entity. (41) It has its own will and in corporate and constitutional jurisprudence. goals free from those of each individual member. (42) In order to pursue and protect corporations' wills and goals, the Supreme Court awarded corporations numerous constitutional protections. (43) While courts have relied heavily on the real entity theory of corporate personhood to justify awarding corporations constitutional protections, courts have also utilized the other two theories when necessary to support their decisions. (44)

   2. The Development of the Corporation with Regard to the First Amendment

      Corporations have found protection under some provisions of the First Amendment, most conspicuously the right to free speech. (45) Initially, the Supreme Court had little issue with granting corporations free speech rights under the First Amendment. (46) The Court stated that it was illogical to deny corporations free speech rights simply because of the existence of a corporate identity. (47) The Court reasoned that corporations needed this right protected because corporate free speech fosters the purpose of the First Amendment's freedom of speech provision. (48) In First National Bank of Boston v. Bellotti, the Court cemented the importance of a constitutional provision's purpose in determining its applicability to corporations. (49) The Court did not hesitate to find that protection of corporate free speech was necessary to facilitate the purpose of the Free Speech Clause, and thus, this provision applied to corporations. (50)

      This consistent understanding among courts of the extension of free speech to corporations was abruptly challenged by the decision in Austin v. Michigan Chamber of Commerce. (51) The Austin Court upheld a state restriction on the independent expenditure of funds for political speech by corporations. (52) Austin presented a bifurcation in the view of whether or not corporations had free speech rights under the First Amendment. (53) For the next twenty years, restrictions on corporate expenditures for political speech remained valid, which conflicted with over a hundred years of precedent banning these types of restrictions. (54)

      The precedent established by the Austin decision was later abandoned in the widely discussed Citizens United decision. (55) Citizens United overruled Austin, making it unconstitutional to restrict independent corporate expenditures because these restrictions violated corporations' First Amendment free speech rights. (56) Citizens United affirmed that corporations could possess First Amendment rights, reinstating a right historically held by individuals. (57)

      Aside from freedom of speech, certain corporations and organizations have found protection under the First Amendment's right to freedom of religion. (58) The awarding of this protection hinges on the purpose of the First Amendment's Freedom of Religion Clause. (59) The purpose of this clause is to prevent any burdening of the exercise of religion. (60) Specifically, this clause was enacted to prevent the government from intermeddling with the religious activity of individuals. (61) Courts have allowed religious organizations to invoke First Amendment protection because the purpose of such religious entities is to facilitate individuals' religious practices. (62) Additionally, the Supreme Court has found that nonprofit corporations can also invoke this protection if they are operated for religious purposes. (63)

      The recent issue facing the courts was whether or not a for-profit, secular corporation could find protection under the First...