Corporate Religion

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.  – U.S. Const. am. 1.

The First Amendment protects many of the ideological rights of American citizens. Within its clauses it assures a citizen’s right to practice religion, speak and publish freely, assemble peacefully, and petition the government without Congressional interference. However, when do the constitutional freedoms apply to corporations? The amendment forbids Congress from passing any laws which, assumedly, would apply to all persons, incorporated or not, but where can corporations claim protections based in the amendment?

That question was asked in 2014 when the Supreme Court reviewed Burwell v. Hobby Lobby, Inc. Hobby Lobby claimed that the Affordable Care Act, enforced by Secretary of Health and Human Services Burwell, infringed on its religious freedom. Now that the case has been decided, it is important to review it in its entirety to understand the impacts and implications of corporate personhood, the extent of the protections of the Constitution, and how religion and the law interact on a more personal level.

Corporate Personhood: A Short History

The application of laws to corporations has drawn attention in recent years, especially with the decision of Citizens United v. Federal Election Commission in 2010. However, the Supreme Court has been reviewing cases and treating corporations as persons since 1819.


Dartmouth College v Woodward (1819)

“The Contract Clause applies to private as well as public corporations.”

An act of the legislature of New Hampshire affected a charter granted to Dartmouth College, as a corporation, by King George III in 1769, and the charter was not dissolved by the Revolutionary War. In the subsequent arguments, Woodward argued that the fact that the corporation was established for education made it a public corporation, “ liable to the control of the legislature.” However, the court disagreed and referred to Article I, Section 10 of the Constitution which states, “no state shall, without the consent of Congress, … pass any… law impairing the obligation of contracts.” 

Santa Clara County v Southern Pacific Railroad Company (1886)

In an assessment of the property of the Southern Pacific Railroad Company (SPRC) to determine taxes, the State Board of Equalization of California improperly included fences that were not legally assessable. Santa Clara County then sued the SPRC for unpaid taxes, the constitutionality of which were the basis of this lawsuit.  As relating the personhood of corporations, the most important comment was delivered before the oral arguments by Chief Justice Waite:

“The Court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution which forbids a state to deny to any person within its jurisdiction the equal protection of the laws applies to these corporations. We are all of opinion that it does.”

Citizens United v Federal Election Commission (2010)

“Limiting independent expenditures on political campaigns by groups such as corporations, labor unions, or other collective entities violates the First Amendment, in part because corporations should be considered as people and their money counts as speech.”

Citizens United, a conservative nonprofit, brought a complaint to the Federal Election Commission (FEC) regarding advertisements for Michael Moore’s film Fahrenheit 9/11. Citizens United claimed that the advertisements were political advertising and therefore subject to the McCain-Feingold Act. The advertisements would then be violating the act, which forbids “corporations from funding broadcast advertisements mentioning a candidate 30 days before a primary election or 60 days before a general election.” The FEC dismissed the complaint as they stated the “rules did not apply to the bona fide production of films for commercial purposes.” Citizens United responded by restructuring and beginning to create documentaries. In 2008, the DC District Court denied Citizens United’s motions to stop the FEC from enforcing the McCain-Feingold Act because it found that the film in its entirety was essentially a negative commercial.

Citizens United appealed the case to the Supreme Court which consequently overruled Austin v. Michigan Chamber of Commerce – a case that had held “that political speech may be banned based on the speaker’s corporate identity.”

Key Players in Corporate Religious Freedom

Many laws, acts, and amendments go into the Court’s decisions. These played a significant part leading up to the Burwell v. Hobby Lobby, Inc. decision.


Affordable Care Act

The Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act, more commonly known as the Affordable Care Act or ObamaCare, significantly reforms federal health policy. Among its many provisions, the original text of the act called for “group health plans to provide preventive care for women without cost-sharing.” Quite a few religions prohibit the use of certain forms of contraceptives, so quite a few family-owned businesses, citing the families’ religions, targeted this requirement as violating their free exercise of religion. 


Religious Freedom Restoration Act of 1993

As a result of Employment Division v. Smith, which upheld a denial of unemployment benefits based on state law trumping religious freedom, Congress passed the Religious Freedom Restoration Act (RFRA). The RFRA requires that “government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability,” that is, even if the law in question is applied to all citizens under the jurisdiction equally and not necessarily imposed to burden religion. Though the Act was partially struck down in City of Boerne v. Flores – Congress does not have the authority to apply the RFRA to state or local laws – it still applies to federal laws, including the Affordable Care Act.


Employment Division v. Smith (1990)

A law is constitutional under the Free Exercise Clause if it is facially neutral and generally applied.

Two men, Alfred Smith and Galen Black, were fired for their use of peyote as part of a religious ritual in the Native American Church. They were denied unemployment benefits due to work-related misconduct which the State Court of Appeals determined violated the Free Exercise Clause of the First Amendment. The Oregon Supreme Court affirmed the lower court’s decision as well as declaring the State’s controlled substance law unconstitutional, as it did not give exemptions for religion. However, the US Supreme court reversed the decision because the law was not intended to prohibit specifically the free exercise of religion. Justice Scalia delivered the opinion of the Court, writing “although it is constitutionally permissible to exempt sacramental peyote use from the operation of drug laws, it is not constitutionally required.”

First Amendment of the United States Constitution

Though the First Amendment ensures the right to free exercise of religion and protects against the establishment of the same, Hobby Lobby is an interpretation of the federal RFRA and does not address a corporation’s First Amendment protections. As of now, the only First Amendment right explicitly granted to corporations is the right to free speech, as established in Citizens United v. Federal Election Commission.

Nonetheless, 1 U.S. Code § 1 states that “in determining the meaning of any Act of Congress, unless the context indicates otherwise— …the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals,” somewhat suggesting that, unless otherwise implied, Congressional acts and Constitutional amendments apply to corporations the same way they apply to natural persons.


Implications of Hobby Lobby and the Future of Religion

Religion and the law in the United States very rarely work well together. Religious objections are commonly cited as means to circumvent opposable laws, and the Free Exercise Clause of the First Amendment protects them. That isn’t to say that religion is only used in a government-avoiding manner, for “religion is the central element in the life of civilization.” Following a controversial application of the First Amendment by the Supreme Court in 1990 (Employment Division v Smith), Congress enacted the Religious Freedom Restoration Act (RFRA) in 1993. The RFRA prohibits the government from imposing a substantial burden on a person’s religious exercise unless it can show a compelling interest achieved by the least restrictive means. The most recent challenge regarding this federal law came in 2014 in the form of Burwell v Hobby Lobby. Hobby Lobby, a family-owned arts and crafts store chain, claimed that it had a religious objection to the Affordable Care Act’s contraceptives mandate. The case therefore questioned “whether RFRA allows a for-profit corporation to deny its employees the health coverage of contraceptives to which the employees are otherwise entitled by federal law, based on the religious objections of the corporation’s owners.”

The largest question in the case then became whether a for-profit corporation could hold religious beliefs. The Supreme Court had already established that corporations can be considered persons under the law and, as a result of Citizens United v Federal Election Commission in 2010, explicitly extended the right to free speech to them as well. However, the Court did not apply the Free Exercise Clause to Hobby Lobby because the question regarded the RFRA, leaving some room to possibly overturn the decision in the future.

The decision has also left room to conceivably apply RFRA to more loosely-held closely-held corporations, especially when viewing the judgement through a Citizens United lens. Essentially, the fact that non-profits can be protected by the First Amendment – as proved by Citizens United by the Free Speech Clause and religious nonprofits by the Free Exercise Clause – implies that the corporation as a form has the ability to be protected by the First Amendment. The problem for more widely-held corporations then becomes defining their religious beliefs. The beliefs of the shareholders, as the basis of the corporation, must be considered before a corporation can claim religious exemptions for financial, and potentially legal, reasons. For example, if Wal-Mart decided to declare exemptions to the same mandate as Hobby Lobby because the board decided the company was converting to Roman Catholicism, shareholders may react negatively because they might not be Roman Catholics.

Hobby Lobby and Citizens United could effectively change the role of religion in the law, or exemptions from the law, forever. The United States has always been relatively ambivalent regarding religion and will likely continue to be so. Depending on the composition of the Supreme Court, which voted upon party lines (party lines referring to the presidents who appointed each of the justices, since the justices are not formally aligned with any political parties themselves) in both of these corporate protections cases, laws such as the RFRA and amendments such as the First and Fourteenth may be applied more widely – giving every legal personality an ability to religiously object – or more tightly  reversing the ability of associations of people to be identified as individuals and given constitutional protections accordingly.