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