“Can Corporations Pray?” Continued: The Gaping Hole in the Attack on the Affordable Care Act

Secular for-profit corporations cannot pray or exercise a religious conscience, but courts continue to fall into the trap of endowing business corporations with human characteristics of dignity and conscience, aspects of humanity that fundamentally are exercised only by individuals.  In the coming weeks, the Supreme Court will decide whether to review a remarkable ruling by the Tenth Circuit in Sebelius v. Hobby Lobby Stores, Inc. that Hobby Lobby, and corporations like it, are persons exercising religion under the Religious Freedom Restoration Act (RFRA) and may refuse to provide to their employees contraceptive health care coverage to which they are legally entitled under the Affordable Care Act.  In the meantime, new decisions have deepened the already existing split in the Circuits on this issue. 

On November 8, in a 2-1 ruling in Korte v. Sebelius, the Seventh Circuit held that Korte & Luitjohan Contractors, Inc., a construction company, and Grote Industries, Inc., a vehicle safety manufacturer, were entitled under RFRA  – at least on a preliminary basis – to a religious exemption from the ACA’s contraceptive coverage requirement.  As Lyle Denniston observed on SCOTUSblog, the Seventh Circuit’s ruling is the broadest so far, concluding that the corporations themselves were persons exercising religion under RFRA and that the contraceptive coverage requirement infringed on the rights of religious exercise of both the corporations and its owners.

Korte has been hailed by Josh Blackman and others as the “most extensive and thoughtful discussion” of corporate free exercise rights, but it is striking, as dissenting Judge Ilana Rovner observed, just “how wanting” the decision, like Hobby Lobby, is “in articulating a substantive affirmative explanation for why any type of corporation, let alone a secular for-profit corporation, should be accorded religious rights.”  Indeed, the majority opinion in Korte, written by conservative jurist Diana Sykes, never explained exactly how a secular for-profit corporation exercises religion.  Rather than grappling with this fundamental question, Judge Sykes argued that a corporation “is just a special form of organizational association,” and since religious sects can form corporations, secular, for-profit corporations also must exercise religion.  As she reasoned, “unless there is something disabling about mixing profit-seeking and religious practice, it follows that a faith-based, for-profit corporation can claim free-exercise protection to the extent that an aspect of its conduct is religiously motivated.”  The difficulty, of course, is that these cases involve secular, for-profit corporations – formed to make money and succeed in business, and that employ and serve persons of all religious faiths — whose religious exercise must be demonstrated, not simply assumed.  

Judge Sykes never even tried to demonstrate how a secular, for-profit corporation can exercise religion, and, in fact, she could not have done so if she had tried. From the Founding on, the Constitution’s protection of religious liberty has always been seen as a personal right, inextricably linked to the human capacity to express devotion to a God and act on the basis of reason and conscience.   Business corporations, quite properly, have never shared in this fundamental aspect of our constitutional traditions for the obvious reason that a business corporation lacks the basic human capacities – reason, dignity, and conscience – at the core of the Free Exercise Clause.  

To cover up these failings, Judge Sykes framed the issues as whether “profitmaking alone” should disqualify the claims of Korte & Luitjohan Contractors and Grote Industries.  This is a gross oversimplification.   It is not merely the profit motive, but the basic fact that business corporations cannot pray and are set up and run for secular ends – not as voluntary associations of individuals who join together for the purpose of religious worship – that explains why secular, for-profit corporations have never been accorded religious rights.   The simple fact of the matter – ignored entirely by the Korte majority – is that business corporations do not exercise religion, people do. 

In a brilliant dissent, Judge Ilana Rovner took the majority to task for these errors, showing that the majority had improperly extended “a highly personal right to a secular corporation, a man-made legal fiction that has no conscience enabling belief or worship.”  In a lengthy dissent that surveyed the text and history of the First Amendment and the Framers’ understanding that “religion was to be a matter of personal conscience,” Judge Rovner explained that religion “is inextricably intertwined with characteristics that are uniquely human: conscience, belief, faith, and devotion.”  Indeed, as she explained, “religious belief . . . is a defining trait of human kind; and that is why we view it as a core component of individual freedom.” 

Indeed, by investing business corporations with religious rights and conferring on them the ability to deny to their employees “a highly important form of insurance coverage that Congress intended them to have,” Judge Rovner explained that the majority’s ruling “was reminiscent of the Lochner era, when an employer could claim that the extension of protections to its workers constituted an undue infringement on the freedom of contract and the right to operate a private, lawful business as the owner wished.”   Far from vindicating religious freedom, the majority’s ruling turned it on its head, allowing corporate owners to impose their religious views on their employees.  As Judge Rovner observed, “[a]n employee’s choice may be inconsistent with the owner’s religious beliefs, but it is not the owner’s choice; and it does not substantially burden the exercise of their religious freedoms.”

Korte, as well or perhaps even better than prior rulings, tees up what is at skate in the fight over the ACA’s contraceptive coverage mandate.  As these challenges inch ever closer to Supreme Court review, the fundamental question is whether the Court, if and when it hears one of these cases, will follow the Framers, who understood religious freedom as a purely personal individual right, or turn principles of religious liberty on their head by granting religious rights to secular, for-profit corporations that do not pray, cannot express pious devotion to a God, and do not possess a religious conscience.