By Brent Ferguson
Counsel, The Brennan Center for Justice
at NYU School of Law


Brent Ferguson

Brent Ferguson

Intriguingly, last week’s Supreme Court argument over corporations’ claims of religious rights unfolded without any mention of the last blockbuster case to touch on corporate constitutional rights—Citizens United.  Yet whether and how the justices choose to incorporate the 2010 political speech case in resolving this term’s religious dispute will matter a great deal to the place of corporations in American society.

In last week’s consolidated cases, two companies, Hobby Lobby and Conestoga Wood Specialties—and their religiously devout owners—challenged the Affordable Care Act’s mandate that any employee health coverage they provide include access to certain forms of contraception.  Use of these contraceptives, they claim, is religiously objectionable, and providing access amounts to complicity in the contraceptives’ use.  The challengers argue that the coverage mandate therefore violates their right to freely exercise their religion under the federal Religious Freedom Restoration Act (RFRA) and under the First Amendment.

A key preliminary question is whether a for-profit corporation can exercise religion in the first place.  Can a legal entity created for economic benefit acquire the ability and right to worship?  The Supreme Court has never before answered this question directly.  In the Hobby Lobby case, however, a federal appeals court said that the highest court indirectly did, when in Citizens United it held that the First Amendment required lifting limits on corporate spending in political campaigns.  The lower court read Citizens United to be the sanctification of a corporate free speech right under the First Amendment, and reasoned that there was no sense in denying corporations a religious exercise right under the same amendment.

But this reading of Citizens United seriously oversimplifies and overstates the majority’s reasoning, as we at the Brennan Center for Justice explained in an amicus brief filed on behalf of the government in the current dispute.  Contrary to what is sometimes claimed, Citizens United did not turn on a conclusion that corporations have a constitutional right to express themselves.  Rather, the Court’s central focus in that case was on the listener—specifically, the right of decision-makers in a democracy to hear any and all political speech, including speech produced by corporations.  The Court assumed, without considering any evidence, that potential voters would not receive a full spectrum of information without corporate advertising.  Our brief showed that the Court’s corporate political speech decisions have all focused squarely on the First Amendment interests of the hearer.

The listener-focused reasoning of Citizens United does not support a corporate religious exercise claim.  The right to freely exercise religion is an intensely personal right, rooted in the humanity and dignity of the believer—there are no “listeners” who can claim a constitutional interest in another’s religious exercise.  While others have recognized this important point, the contraceptive mandate’s challengers still argued in their brief to the Supreme Court that Citizens United has paved the way for their corporate religious rights.

For those who oppose the companies’ claim of a constitutional religious exercise right, it’s probably a good sign that last week’s argument didn’t mention Citizens United.  Judging by the justices’ focus on RFRA, any grant of a right may be confined to a specific statute.  The granting of a corporate constitutional right in a realm historically reserved for the deeply human phenomenon of religious faith could bolster corporate claims of right in many other areas of the law.  For instance, while election regulators currently may ban corporations but not people from giving money directly to candidates to prevent corruption by powerful special interests, an expanded view of corporate rights could put that distinction in jeopardy.

More cynically, one could worry that the omission of Citizens United at argument suggests that some of the justices had already come to believe that corporations may indeed invoke this constitutional right previously associated only with individuals.  At one point Justice Alito challenged the government: “[W]hat is it about . . . a for-profit corporation that is inconsistent with a free exercise claim?”  The failure to conduct an in-depth examination of this issue—with a specific understanding that Citizens United does not create a corporate right to self-expression so much as it vindicates the polity’s right to hear corporate political speech—could be read as a troubling sign.

Some have worried that a decision in favor of the corporations will make the Hobby Lobby case the “Citizens United of the culture wars.”  Yet because oral argument gave no insight into how the Court compares Citizens United to the Hobby Lobby case, we’ll have to wait months for a decision to learn whether we’re in for a pitched battle over a host of employees’ rights.