In January of this year, I wrote in a moment of frustration that my newsfeed was full of America Hates Christians Because: Hobby Lobby posts, and articulated my position that the Constitution doesn’t say you get to do whatever you want to and don’t have to do anything you don’t want to.

In comments on the blog and on other social media sites, we discussed the difference between a person – who eats and sleeps and feels and thinks and believes – and a company/corporation, which is a legal entity that isn’t necessarily able to eat or sleep or feel or think or believe in all contexts.  And I explained that people have religious beliefs and religious expressions, but that I wasn’t so sure that companies do and if they did, I wasn’t sure how they would be evaluated by the court system.  I believe it is important to tell whole stories, and this story has changed a bit over the last ten months, so I am here to give you a little more information. 

Since I published that post, the Tenth Circuit Court of Appeals held that for-profit corporations can be “persons” who exercise religion under the Religious Freedom Restoration Act, and that Free Exercise rights may extend to some for-profit organizations.  (See page 26 of the opinion.)  The Third Circuit Court of Appeals went the other way on a similar case brought by Conestoga Wood Specialties, a woodworking company owned by a Mennonite family, concluding that “for-profit, secular corporations cannot engage in religious exercise.”  (See the entire opinion here.)

Thus, we’re headed for the Supreme Court to answer the question.  After reading some legal scholarship on the issue, I’m a bit more convinced that this could work – that, at least academically, a for-profit corporation could assert a free exercise claim under the Religious Freedom Restoration Act.  In the context of corporate rights and freedoms, I agree that it seems weird to treat for-profit corporations differently from non-profit corporations (a.k.a. churches) in this regard.  I still feel uncomfortable with the idea that a corporation can have religious beliefs (Hobby Lobby the company certainly cannot walk down the aisle and be born again according to my understanding of Christianity!), but that does not prevent me from recognizing the argument as valid.

I think this discussion is incredibly interesting and I’m following it here-and-there to see what happens next.  If you’d like to follow it also, I recommend Volokh Conspiracy’s coverage as they usually cover both sides of the argument in an intelligent way, and SCOTUSblog for scheduling and the Court’s opinions.  Nothing is showing up for me on the Court’s calendar just yet.

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  • Leslie

    I might have missed something. So what about the substantial burden thing? Does that go out the window if Hobby Lobby is a now a religious person? Because if they had already been enrolling employees in health insurance that provided for the “abortificants,” doesn’t that prove that it was and is not a substantial burden?

    • http://pinkbriefcase.wordpress.com pink-briefcase

      Hi Leslie!

      You didn’t miss anything — substantial burden is still the test. Once they establish they have rights that could be violated, they still have to show a substantial burden that violates RFRA. I’m not convinced the single fact that they covered these medications previously would fully answer that question, but it may contribute to the analysis.