A few weeks ago, the Supreme Court held, in a case called Hobby Lobby after one of the parties, that the Religious Freedom Restoration Act (RFRA, pronouced "Riff-ra") prohibits the Department of Health and Human Services (HHS) from requiring three closely-held corporations to purchase health insurance for their employees that covered methods of contraception that violated the sincerely-held religious beliefs of their owners. HHS already allowed religious corporations to opt out of providing contraceptive coverage against the principles of the relevant religion, and the court found that HHS could easily allow for-profit businesses owned by religions persons to similarly opt out. Corporations, the court said, are "persons" protected by RFRA. Here is the first money quote from the opinion:
As we will show, Congress provided protection for people like the Hahns and Greens by employing a familiar legal fiction: It included corporations within RFRA's definition of "persons." But it is important to keep in mind that the purpose of this fiction is to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people. For example, extending Fourth Amendment protection to corporations protects the privacy interests of employees and others associated with the company. Protecting corporations from government seizure of their property without just compensation protects all those who have a stake in the corporations' financial well-being. And protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies.
In holding that Conestoga, as a "secular, for-profit corporation," lacks RFRA protection, the Third Circuit wrote as follows:
"General business corporations do not, separate and apart from the actions or belief systems of their individual owners or employees, exercise religion. They do not pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors." 724 F. 3d, at 385 (emphasis added).
All of this is true - but quite beside the point. Corporations, "separate and apart from" the human beings who own, run, and are employed by them, cannot do anything at all.
The court is saying that Hobby Lobby and the other two businesses do not have religious freedom rights of their own; their right to religious freedom is merely derivative of the rights of their shareholders, officers, and employees.
Now for the second money quote from the court's opinion:
Finally, HHS contends that Congress could not have wanted RFRA to apply to for-profit corporations because it is difficult as a practical matter to ascertain the sincere "beliefs" of a corporation. HHS goes so far as to raise the specter of "divisive, polarizing proxy battles over the religious identity of large, publicly traded corporations such as IBM or General Electric."
These cases, however, do not involve publicly traded corporations, and it seems unlikely that the sort of corporate giants to which HHS refers will often assert RFRA claims. HHS has not pointed to any example of a publicly traded corporation asserting RFRA rights, and numerous practical restraints would likely prevent that from occurring. For example, the idea that unrelated shareholders - including institutional investors with their own set of stakeholders - would agree to run a corporation under the same religious beliefs seems improbable.
Now recall to mind the Citizens United case from 2010. In that case the Supreme Court held that the First Amendment, and specifically the provision that protects the right to speak freely, prohibits the government from limiting the amount of money that corporations and labor unions can spend on independent political advertising. (The ruling did not strike down limits on corporate and union contributions to campaigns and candidates.) Put another way, in 2010 the Supreme Court held that corporations and unions, both large and small, could form and express opinions about political candidates that the First Amendment's free speech provision would protect. Now, in 2014, the Supreme Court has held that only closely-held corporations with a handful of shareholders can form opinions about religion. That is, according to the Supreme Court any corporation can form an opinion about Jeff Merkley or Monica Wehby that the First Amendment protects, but only a closely-held corporation can form a protected opinion about the strictures of Leviticus. The court's retreated, in a small way, from its statement in Citizens United that the First Amendment grants the right to corporations and unions to spend what they like to support or oppose candidates independently of the views of their shareholders and members. I don't think the majority meant to say that, but say it they did.