Hobby Lobby and the legacy of Citizens United

Assume that a corporate board objects to a public policy — the Affordable Care Act (“ACA”) for example — and wants to use corporate treasury funds to oppose it. The company could hire lobbyists to lobby members of Congress to vote it down (as the health insurance industry did when it funneled over $100 million to the Chamber of Commerce to oppose the ACA). The corporation also could tap its general treasury in the next election cycle to support or defeat candidates based on their position on the ACA. The Supreme Court paved the way for this kind of corporate influence when it decided in Citizens United that corporations have a First Amendment right to spend money on political campaigns, so long as it’s “independent” from candidates (and even if it’s secret).

An alliance of the religious right and corporate America suggested a third option Tuesday in the Supreme Court. They argued that a corporation could declare that a law or regulation violates its First Amendment right to religious “freedom,” entitling it to a constitutionally-protected exemption from the law on that ground alone. Alternatively, a corporation could argue that it’s a “person” under the Religious Freedom Restoration Act and thus exempt from the ACA or any other law that substantially burdens its free exercise of religion.

Whether a for-profit corporation can claim personhood for these purposes is at issue in Sebelius v. Hobby Lobby and Conestoga Wood v. Sebelius. These corporations argue that the ACA’s requirement of comprehensive contraception coverage for employee health plans (or the payment of a tax in lieu of coverage) violates their First Amendment “right” to free exercise of religion.

No one on either side of the case doubts the sincerely held religious beliefs of these corporations’ shareholders and owners. The issue is whether a for-profit, secular corporation can challenge a law on religious grounds. Query the last time you saw a corporation pray, or smoke peyote, or celebrate a solstice, or undergo a baptism, or participate in a Quaker Meeting for Worship.

If you hear echoes of Citizens United in the corporations’ argument, your ears are not playing tricks on you. Hobby Lobby and Conestoga Wood rely on Citizens United for their argument. Wielding the First Amendment as a sword rather than a shield, they call on the court to declare that corporations not only can choose which politicians to support or oppose on Election Day but also can decide are invalid infringements on their “religious freedom.”

The Tenth Circuit Court of Appeals ruled that “the First Amendment logic of Citizens United” applies to Hobby Lobby Stores, Inc., and that it saw “no reason the Supreme Court would recognize constitutional protection for a corporation’s political expression but not its religious expression.” Fortunately, the Third Circuit rejected that analysis in Conestoga Wood, writing that “for-profit secular corporations cannot engage in religious exercise.”

It’s now up to the Supreme Court to resolve the disagreement between circuit courts. In his dissent in Citizens United, Justice Stevens explained that “corporations have no consciences, no beliefs, no feelings, no thoughts, no desires.” He could have added “no religion” (unless the pursuit of profit counts).

Here are some smart articles about what’s at stake and the connection of Hobby Lobby and Conestoga Wood to Citizens United:

– Prof. Jamie Raskin, People for the American Way Senior Fellow, The Gospel of Citizens United: In Hobby Lobby, Corporations Pray for the Right to Deny Workers Contraception;

– Dahlia Lithwick, Slate, Corporations Are People: The Biblical Sequel; All Corporations Go to Heaven; and Un-People

– Naomi Lamoreaux and William Novak, Getting the History Right: Tracking the Real History of Corporate Rights in American Constitutional Thought.

– Adam Winkler, Slate, Yes, Corporations Are People — And That’s Why Hobby Lobby Should Lose at the Supreme Court

– Sharona Coutts, RH Reality Check, Free Market Groups: The Invisible Hand in the Hobby Lobby Case

– Jay Michaelson, The Daily Beast, Do Corporation Believe in God? The “‘Hobby Lobby’ Case Has the Answer

– Jeffrey Rosen, The New Republic, The End of Anti-Discrimination

– Gabriel Arana, The American Prospect, The Citizens United of the Culture Wars