Corporate Accountability

Supreme Court to Decide Whether Corporations Can Pray

By Joshua Holland


The Supreme Court is set to hear a challenge to a provision in Obamacare which requires that insurers cover preventive health care without co-pays.


Three private companies — Hobby Lobby, Conestoga Wood, and Autocam – are arguing that the inclusion of contraceptive coverage in the basket of minimum benefits required by the law violates their owners’ First Amendment right to exercise their religion as they see fit.


The Constitutional Accountability Center (CAC), which filed an amicus brief in these cases, has an issue brief about the litigation. They note that actual religious organizations are already exempt from the law, meaning, “non-profit organizations whose ‘purpose’ is ‘the inculcation of religious values,’ and which ‘primarily employ[] persons who share the religious tenets of the organization,’ and ‘serve[] primarily persons who share the religious tenets of the organization.’” But…


Hobby Lobby, Conestoga Wood, and Autocam fail each and every aspect of this definition. Hobby Lobby is a chain of more than 500 arts and crafts stores employing approximately 13,000 full time employees across the country; Conestoga Wood manufactures wood products, and employs approximately 950 persons; Autocam is an auto manufacturer, which employs 1,500 employees in fourteen facilities worldwide. Each was organized to serve secular, not religious, purposes, and hire employees and serve customers of many different faiths.


The entire controversy is based on a false premise: that religious business owners will be forced to pay for other people’s birth control. A compromise was worked out that puts the burden on insurers, but these companies claim that this is a distinction without a difference because insurers will pass the “additional costs” of contraceptives onto them anyway through higher premiums. The reality is that, according to the best available evidence, offering free contraceptive coverage saves insurers money due to the very high costs of unintended pregnancies (whether carried to term or aborted).


In other words, there are no costs – it costs more not to offer the coverage. So a very small minority of religious adherents whose faith prohibits them from using contraception are actually trying to force the rest of us to pay for their beliefs with higher insurance premiums (more detail can be found here).


Now, that’s not the argument that the Supreme Court will consider in Sebelius v. Hobby Lobby Stores, Inc., Conestoga Wood Specialities Corp. v. Sebelius, and Autocam Corp. v. Sebelius. These cases will decide the more fundamental question of whether secular, for-profit corporations can claim a First Amendment right to practice religion. The courts have granted corporations broad constitutional rights under the theory that corporations are “artificial persons,” including the free speech rights central to the Citizens United ruling, but so far “corporate persons” haven’t been granted the freedom of worship.


The CAC’s brief begins by noting how far the court has bent over toward the business community…


One of the biggest stories of the Supreme Court’s 2012 Term was the success of Big Business. In a host of 5-4 rulings, the conservative Justices, time and again, moved the law to favor the claims of corporations over workers, consumers, mom and pop shops, and other individual Americans asserting their legal rights. The Supreme Court already has a number of business cases on the docket for its October 2013 Term. But even bigger cases are on the doorstep.


The brief notes that the religious owners of the corporations have no obligation to do anything that contradicts their personal beliefs. The law applies to the corporations, which the law views as separate “persons” — corporations are themselves entities, and they can’t actually kneel down and pray. According to the authors, ruling in these companies’ favor would run counter to established precedent…


A critical, threshold question in these cases is whether the guarantee of the free exercise of religion applies to secular, for-profit, business corporations such as these. In the more than two centuries since the ratification of the First Amendment, the Supreme Court has never held that secular, for-profit business corporations may assert rights under the Free Exercise Clause.




This Issue Brief demonstrates why courts should reject the claim that business corporations have the right to the free exercise of religion. The Constitution never mentions corporations, and the Supreme Court’s cases recognize a basic, common-sense difference between living, breathing individuals – who think, possess a conscience, and a claim to human dignity – and artificial entities, which are created by the law for a specific purpose, such as to make running a business more efficient and lucrative. Because of these fundamental differences, there are certain contexts – principally those related to human dignity and autonomy – in which corporations do not possess the same rights as individuals.


The Free Exercise Clause is perhaps the quintessential example of a purely personal constitutional guarantee that does not extend to business corporations. Business corporations cannot pray, express devotion to a god, and do not have a religious conscience. Just as important, people do not exercise religion through business corporations. No decision of the Supreme Court, not even Citizens United, has ever invested business corporations with the basic rights of human dignity and conscience. To do so would be a mistake of huge proportions, deeply inconsistent with the text and history of the Constitution and the precedents of the Supreme Court.


Here’s a key point: nobody has to form a corporation in order to do business. They do so because it brings real benefits under the law.


Business owners, who have chosen to run their business through the corporate form to obtain special privileges, such as limited liability, cannot disclaim their corporate status and insist that they are simply individuals exercising their own private religious beliefs…


And, they argue, giving new religious rights for soulless corporations would create a dangerous precedent…


The implications of a ruling in favor of Hobby Lobby, Conestoga Wood, and Autocam would be breathtaking and harmful… [It] would allow business owners to impose their personal religious beliefs on their employees, many of whom have a different set of religious views and want and need access to the full range of contraceptives. It would create a dangerous precedent, which would likely be invoked to justify firing employees (or not hiring people in the first place) for engaging in all manner of activities that do not conform to the religious code of the company’s owners, including using contraceptives, becoming pregnant out of wedlock, or marrying a person of the same sex.


Allowing corporate CEOs to foist their own religious beliefs on their employees would turn the First Amendment on its head, allowing secular, for-profit businesses to enforce a religious orthodoxy in the workplace. Individuals who take a job do not surrender their right to exercise the religion of their choice at their bosses’ door.


You can read the entire brief here.

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