If, in fact, “corporations are people, my friend” (shout-out to Mitt Romney for that one), what kind of people are they? Can they have a religion? And, if so, who gets to decide?
That’s a question we’ll get to, but first some background. In a way, Romney is right — corporations are people, just not in the way he describes later in that exchange. In the eyes of the law, corporations are legal, or artificial, persons. This allows them to enter into contracts, own land and incur debt, among other things. This has recently been (controversially) expanded to include broad free-speech rights during elections. There is now a case in front of the Supreme Court that asks the court to extend the freedom of religion to corporations. Or more specifically, it asks the court to allow a corporation (Hobby Lobby Inc., an arts-and-crafts store) to refrain from covering certain contraceptive methods in its employee health plan based on the religious objections of the corporation’s owners. Hobby Lobby is owned by David and Barbra Green and their children. It is irrefutably operated with Christian principles in mind. For example, they aren’t open on Sundays and don’t sell shot glasses because they don’t want to encourage the consumption of alcohol.
They base their argument on the Religious Freedom Restoration Act and the Free Exercise Clause of the First Amendment. Everyone should be familiar with the Free Exercise Clause, which, together with the Establishment clause, reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The relevant parts of the RFRA state that “government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.” It then says, “Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person — (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest” (42 USC § 2000bb–1).
So in the application of this law, there are two stages of the burden of proof. First, Hobby Lobby has to show that it is under a substantial burden imposed by the government on a sincerely held religious belief. That, on its face, requires Hobby Lobby Inc. to be capable of religious expression. Then, if the corporation passes that hurdle, the government can still prevail if it can successfully argue that access to contraception furthers a compelling government interest and that the insurance mandate is the least intrusive means of achieving that goal.
Corporations, by their nature, cannot be religious. They cannot pray, believe or worship. Indeed, as the District Court for the Western District of Oklahoma, the court with original jurisdiction in this case, has ruled, “Religious exercise is, by its nature, one of those purely personal matters … which is not the province of a general business corporation” (Hobby Lobby Stores Inc. v Sebelius, 2012). Hobby Lobby surely cannot attend church along with the Greens and certainly cannot go to heaven or hell. In fact, it need not, and depending on your definition, cannot die. The whole point of a corporation is that it is a separate legal entity from its owners. Owners and managers of a corporation can operate it with principles derived from their religious beliefs, but they cannot imprint their beliefs onto an entity that is incapable of believing.
It doesn’t seem necessary to dive into the other elements of the burden of proof, as no one has questioned the sincerity of the beliefs of the Greens, and the test of strict scrutiny and compelling interest is more technical than would be appropriate to cover here. I would point you to the 10th Circuit Court of Appeals opinion and the amicus brief submitted to the Supreme Court from California et al for a compelling interest discussion.
This case, it will be argued, is part of a scheme to turn corporations into people in the eyes of the law. But that’s not the case. They have long been accepted as “people,” just with different status, rights and responsibilities. In this case, it’s not a matter of stopping the trend toward corporate personhood. It’s about not attributing characteristics to corporations that they patently do not possess.
Tom Petri is a junior majoring in management information systems, finance and legal studies. He can be contacted at firstname.lastname@example.org.