The Constitution and Corporations: Do Businesses Have a Right to Free Exercise of Religion?

By David Schultz

Are corporations religious?
Do they believe in God?
Can they pray?

Silly questions perhaps, but they lie at the heart of Hobby Lobby v. Sebelius (Hobby Lobby). The case, which is pending in the Supreme Court, asks whether the First Amendment protects the religious liberty of a corporation to refuse to pay for birth control for its employees as required under the Affordable Care Act. While the decision of the Supreme Court will have a significant impact on the fate of President Obama’s signature policy accomplishment, the case also raises an important set of questions about the status of corporations under the Constitution. Specifically, are corporations ‘persons’ and therefore entitled to the same rights as real people?

Why would one even think that corporations are persons entitled to constitutional protection? At no point in the Constitution does it explicitly declare corporations to be persons. In fact, the Constitution does not really define who a person is. However, there are uses of this term throughout the document that led to several controversial decisions. The first was the famous 1857 Dred Scott v. Sandford (Dred Scott) decision in which the Supreme Court declared that African-Americans could not become citizens. Instead, they were property. This decision invalidated the Missouri Compromise and set the stage for the Civil War. As a result of Dred Scott, the Fourteenth Amendment was adopted and it contains three references to “person.” However, none of these references explicitly defines who a person is.

In the 1973 Roe v. Wade (Roe) decision the Supreme Court searched the Constitution and the Bill of Rights to determine if a fetus is a person. They conclude no, finding that the meaning of person for constitutional purposes applies only postnatal. Roe thus established a constitutional right for women to terminate their pregnancies. Yet the decision also launched a major battle over abortion rights, including efforts by some both in court and by law to declare a fetus to be a person and therefore entitled to a right to life.

Both Dred Scott and Roe involved battles to establish something with Homo sapiens DNA to be persons. But what about corporations? In the 1886 County of Santa Clara v. Southern Pacific Railroad Company, the Supreme Court accepted without argument that corporations were persons for the purposes of the Fourteenth Amendment. But what exactly does that mean? Is it recognition that they are no different from real humans in terms of their rights? Yes and no.

On the one hand, corporations enjoy due process rights and cannot be searched without a warrant. In addition, they cannot assert property rights and cannot have their property taken by eminent domain unless they receive just compensation. However, the Supreme Court has limited Bill of Rights protections to natural persons, excluding corporations. Corporations have no privilege against self-incrimination under the Fifth Amendment. They do not have a right to privacy and they cannot be imprisoned. Yet corporations can be convicted of crimes, as when Arthur Andersen was found guilty of obstruction of justice in its role of covering up the fraud associated with Enron.

Finally, corporations enjoy free speech rights. Forty years ago, the Supreme Court attached little constitutional value to corporate speech, giving the government broad leeway to regulate it. However, the courts no longer seem to treat corporate speech as inferior to that of individuals. Perhaps the most notable here is the 2010 Citizens United v. Federal Election Commission (Citizens United)where the Court ruled that efforts to prevent corporations from spending money for political purposes was a form of censorship and therefore violated their First Amendment free speech rights.

This now brings us to Hobby Lobby. Corporations speak, but do they pray or believe in God? Do corporations have free exercise of religion rights such that efforts to require them to provide birth control in insurance plans, as required by the Affordable Care Act, violate the First Amendment? The Supreme Court will decide this case next year. Precedent suggests they should rule no but cases such as Citizens United make it unclear what they will do.

There are powerful reasons to rule against Hobby Lobby and distinguish from Citizens United. Realistically, we can see that corporations do speak but they do not pray and they cannot believe in God. Yes, their owners or managers can do this, but the corporation does not. This distinction would be a simple way to resolve the case, but that will not resolve the issue. Hobby Lobby is a corporation. Many businesses are partnerships or other entities that are not incorporated. At some point one of these businesses will raise the First Amendment issue, contending that the religious rights of a real person is being violated by the requirement to provide to employees’ birth control options in health insurance. This will pit this First Amendment right of an owner against the employees’ rights of privacy. The employees should win.

The religious objections of some should not trump the rights of others. At one time, some argued that anti-discrimination laws violated one’s rights to freedom of association or even free exercise of religion. The Court rejected those claims. Similarly, religious claims are being rejected as reasons to prevent same-sex couples from marrying. In these cases, the Supreme Court has ruled that while one may have a right to believe something that right cannot trump the rights of others. Intolerance, prejudice or even deeply held religious beliefs should not be used as tool to prevent others from exercising their liberty interests. In addition, whatever First Amendment religious rights employers have, the First Amendment interests of society and of employees in terms of access to birth control or rights to privacy are weightier.

Additionally, if we let employers’ religious views trump employee rights when it comes to birth control, what is next? Religious objections to prescription plans that involve other drugs that employers do not like? Religious objections to requests for specific holidays? Or perhaps even religious objections to claims that minimum wage laws or workplace safety conditions somehow violate an employer’s free exercise rights? This sounds silly but no less silly than contending that corporations can be religious, believe in God, or pray. Religion can and should not be used as a cudgel to thwart the rights of others or to veto public policies one simply does not like, especially when it comes to entities that really are or should not be considered persons. Democracy and rights are supposed to be for real persons, not artificial ones.

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