In her dissent in today’s contraception ruling, Supreme Court Justice Ruth Bader Ginsburg notes that “the exercise of religion is characteristic of natural persons, not artificial legal entities.” That used to be true.
For all the years of jokes about corporations being people, the United States has never actually seen corporations as being capable of exercising their own personal faith. Indeed, the 3rd Circuit Court of Appeals explained last year that courts have “long recognized the distinction between the owners of a corporation and the corporation itself.” Ruling that “a for-profit corporation can engage in religious exercise” would “eviscerate the fundamental principle that a corporation is a legally distinct entity from its owners.”
But in today’s Hobby Lobby ruling, the court’s conservative majority makes the opposite assumption. Justice Alito wrote:
“Protecting the free-exercise rights of closely held corporations thus protects the religious liberty of the humans who own and control them.”
This is made almost in passing, as if it weren’t especially important, but it’s worth pausing to appreciate what this sentence actually says. Alito believe corporations have the right to exercise religious beliefs – and that right demands protection. It’s as if the court majority takes it as a given that a corporation, and not the literal people in it, can attend worship services, pray, contemplate moral quandaries, read scriptural texts, and reach spiritual conclusions.
On literally the same page of the ruling, Alito added, “No conceivable definition of ‘person’ includes natural persons and non-profit corporations, but not for-profit corporations.”
Right, because what’s needed when defining “person” is more corporations, not fewer.
Alito added, “Any suggestion that for-profit corporations are incapable of exercising religion because their purpose is simply to make money flies in the face of modern corporate law.”
There are experts in this area who can speak to this with far greater authority than I can – such experts should certainly weigh in by way of the comments section – but as I understand it, corporate law has actually said the exact opposite.
In fact, the Constitutional Accountability Center’s Doug Kendall specifically noted in a press statement, “For the first time in our nation’s history, the Supreme Court has ruled that for-profit corporations have religious rights and have accorded them religious exemptions. Despite their attempts to qualify that ruling, it opens the floodgates to claims by corporations for religious exemptions.”
It’s worth noting, of course, that the court apparently wants to keep those floodgates closed. Alito is fairly explicit on this point, saying, “[O]ur decision in these cases is concerned solely with the contraceptive mandate” and does not apply to corporations that may raise religious objections to “vaccinations and blood transfusions.”
By what reasoning do the five conservatives conclude that a Corporate Person’s objections to contraception are more legitimate than a Corporate Person’s objections to blood transfusions? They never got around to explaining that. It’s simply true because Alito says it’s true. Maybe blood transfusions would also be in trouble if such a case reaches the high court in the future, maybe not.
As Ryan Grim summarized, “The Court has basically just given up any attempt at coherence. It’s just raw power.”
Which brings us back to Ginsburg: “[A]pproving some religious claims while deeming others unworthy of accommodation could be ‘perceived as favoring one religion over another,’ the very ‘risk the Establishment Clause was designed to preclude.’ The Court, I fear has ventured into a minefield.”