Why corporations don’t deserve religious freedom

By Jay Michaelson
March 24, 2014

On March 25 the Supreme Court will hear arguments in two cases, Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties Corp. v. Sebelius, whose outcomes will decide whether corporations can exempt themselves from provisions of the Affordable Care Act (ACA), based on religious beliefs. The cases challenge a provision of the ACA that requires employer-provided insurance plans to include contraception coverage.

The rulings’ importance extends beyond the ACA, however. Hobby Lobby and Conestoga Wood, its companion case, are also about Citizens United — which established that corporate personhood includes freedom of speech, exercised, in part, by giving money to political causes. Now the court will decide whether corporations have freedom of religion as well, and whether on the basis of those rights, corporations can deprive services to others.

The court should reject this dangerous assertion. Corporations exist as separate legal entities precisely to distinguish their activities from those of their owners. It is that separation that Hobby Lobby threatens to erase.

The facts are straightforward. Under the Affordable Care Act, employers must provide health insurance to employees — including, if the employee requests it, coverage for women’s healthcare, which includes contraception. Hobby Lobby, a national corporation with more than 21,000 employees, is owned by conservative Christians who believe that by providing the option of such coverage — though it is chosen and used by someone else — they would violate their religious beliefs. So the company sued Kathleen Sebelius, the secretary of Health and Human Services, and the department, among others.

But the injured party here is Hobby Lobby, not the owners. Thus the corporation, not its owners, is alleged to have a conscience and religious beliefs afflicted by Obamacare.

This is an audacious expansion of the corporate personhood established by Citizens United, and one with deeply troubling consequences. In claiming that corporations have consciences, the plaintiffs — or, more precisely, their legal advocates, the Becket Fund for Religious Liberty and the U.S. Conference of Catholic Bishops, the latter of which has largely underwritten the campaign — are entering a theological and legal quagmire.

Under this logic, if a corporation abhors birth control, it can also abhor the mixing of races, two women holding hands in a shopping mall, the profession of a belief in any God but Allah — you name it. To take one example, a fast-food chain (like Chick-fil-A which, like Hobby Lobby, is owned by conservative Christians) could forbid entry to Jews, African-Americans, or anyone else they wanted to, as long as the corporation asserted a conscience claim.

We don’t have to imagine such hypotheticals. In 1965, restaurateur and politician Lester Maddox said that to obey the 1964 Civil Rights Act, and allow African-Americans to eat at his restaurant, would be “a sin against God.” Just like the Hobby Lobby owners and the ACA provision, Maddox said that being forced to serve food to mixed-race groups violated his religious beliefs. Maddox lost in court and closed his restaurant rather than integrate it. Then, in a backlash against the civil rights movement, he was elected governor of Georgia the following year.

Surely this was the right legal result: whatever a business owner’s religious beliefs, the business itself should obey the same laws as every other corporation, including civil rights laws and the ACA.

Those concerned about corporate governance should also oppose this expansion of Citizens United. It represents an inverse “piercing of the veil” of corporate liability. If Hobby Lobby’s owners are responsible for their company’s religious beliefs, why not for its negligence, for example? Or its debts?

Indeed, the ludicrous notion of a crafts store kneeling to say its novenas undermines the premise of Citizens United itself. Corporations aren’t moral agents. The notion of “corporate personhood” is a legal fiction.

It’s wishful thinking that the court will overturn Citizens United on the way to rejecting Hobby Lobby’s claim to conscience. It need not, and probably will not, do so. Then again, Hobby Lobby’s claim also seemed like wishful thinking when it was first proposed.

Lawyers, like corporations, can dream.


PHOTOS: The exterior of the U.S. Supreme Court is seen in Washington March 5, 2014. REUTERS/Gary Cameron 

Demonstrators stage a protest near the U.S. Supreme Court building, on the anniversary of the Citizens United decision, in Washington, January 20, 2012. REUTERS/Jonathan Ernst 







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