Constitution Daily

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The First Amendment, corporations and religious freedom

November 27, 2013 by Ronald J. Colombo


Ronald J. Colombo from Hofstra Law says the Supreme Court’s decision to take on two new Obamacare challenges will be an important test of its commitment to the First Amendment’s religious liberty protections.

St_etheldredas_church_stainedglassOn November 26th, the U.S. Supreme Court granted certiorari in two cases that could profoundly affect our nation’s understanding of religious liberty:  Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties v. Sebelius.

Hobby Lobby and Conestoga Wood are two of a number of cases that have been making their way through the judiciary concerning the “contraceptive mandate” – a regulation promulgated pursuant to the Affordable Care Act that requires employers to offer insurance to their employees covering abortiofacient drugs, sterilization services, and contraceptives.  Religious groups and employers have challenged the mandate, asserting that its enforcement against them violates their religious liberty.  In most of these cases, the government has defended the contraceptive mandate on the merits, asserting that it does not violate religious liberty as per the applicable constitutional and statutory standards.  In Hobby Lobby and Conestoga Wood, however, the government has argued that the claimants (namely, Hobby Lobby and Conestoga Wood) don’t even have standing to challenge the law.  The reason: Hobby Lobby and Conestoga Wood are for-profit business corporations, and the government believes that such entities are excluded from our nation’s religious liberty protections.

The fundamental human right to religious liberty is enshrined in the First Amendment to the U.S. Constitution, which declares that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….”  The latter half of this declaration, known as the “free exercise clause,” protects religious liberty in a variety of contexts.  It prevents the government from interfering with an individual or group’s religious beliefs, and it prevents the government from targeting religious conduct for circumscription.  It also provides religious individuals and groups with limited protection against laws of general applicability, and this is the manner in which the contraceptive mandate implicates the First Amendment.

In an increasingly secularized nation, this final notion strikes many as surprising if not unsettling.  But it harkens back to the very roots of our country.  From the Pilgrims at Plymouth Rock, to the Puritans of Massachusetts, to the Catholics of Maryland, America has traditionally been a beacon for those seeking the opportunity to live their lives in a manner consistent with their religious beliefs, free from government persecution and interference.  The freedom sought was far more than mere “freedom of worship" (as some have described it recently).  It was not a freedom restricted to the privacy of one’s church or temple, to Saturdays or Sundays alone.  Rather, it was the freedom to the free exercise of one’s religion in all aspects of life, seven days a week, so long as public order or safety wasn’t compromised.  This broad understanding of religious liberty was captured well by James Madison who famously wrote that the “duty [owed the Creator] is precedent both in order of time and degree of obligation, to the claims of Civil Society. . . . We maintain therefore that in matters of religion, no man's right is abridged by the institution of civil society, and that religion is wholly exempt from its cognizance."

How the First Amendment’s protections are best to be implemented has been a matter of some debate, especially with regard to laws of general applicability.  The Supreme Court’s most recent and definitive pronouncement came in the 1990 case Employment Division v. Smith, which subsequently provoked a Congressional response in the form of the Religious Freedom Restoration Act (RFRA).  As a result of these two developments, government regulation infringing upon the exercise of religion must be justified pursuant to either the “compelling government interest test” or the “rational basis test,” depending upon whether the regulation in question is federal or state (respectively).

The contraceptive mandate litigation has raised a new issue regarding religious liberty that the Supreme Court has not heretofore considered: whether the protections of the free exercise clause extend to for-profit business corporations.  A handful of appellate courts have considered the issue over the past year, and have come down on opposite sides of the issue.  The U.S. Supreme Court has granted certiorari to resolve this spit.

For all its novelty, the question of corporate free-exercise rights should not be a difficult one.  There is nothing in the text of the First Amendment that provides a basis for carving for-profit corporations out of its protections.  Indeed, the Amendment’s language is framed as a limitation on Congressional power – regardless of the status or nature of the claimant.  This fact was not lost upon the Supreme Court in its 2010 decision Citizens United v. FEC, which held that the First Amendment’s freedom of speech protections applied to corporations as equally as it applied to individuals.  Under our Constitution, Congress simply has no power to pass a law that would restrict the freedoms set forth in the First Amendment.

Additionally, it has long been established that the First Amendment applies to groups as well as to individuals.  Churches and charities have long been able to claim the protections of the free exercise clause.  Indeed, congregations, dioceses, parishes, and charities are themselves often organized as corporations, yet this has never precluded them from asserting free exercise claims.

Admittedly, when churches and charities incorporate, the form chosen is uniformly that of a “non-profit corporation” versus a “for-profit corporation.”  But can this distinction really serve as a basis for denying the protections of the free exercise clause to one set of organizations versus another?

Those who answer in the affirmative argue that only non-profit organizations are deserving of free exercise protections because only non-profits can authentically lay claim to beliefs and values.  They argue that the focus on profitability prohibits business corporations from making the same claim.  This position lacks both imagination and the ability to see that which is clearly before our very eyes.

There is no reason why a business corporation cannot balance principles with profits – indeed, many are already doing this.  A testament to this development is the proliferation of “B Corporations” and “Benefit Corporations,” which pledge to put non-economic values at the forefront of their decision making and operations, including religiously derived values.

Hobby Lobby is one such company.  This arts-and-crafts store is owned and operated by a family deeply devoted to its Christian faith.  The company’s statement of purpose commits it to "[h]onoring the Lord in all we do by operating the company in a manner consistent with Biblical principles."  Unlike so many companies today that put profits over people, Hobby Lobby pledges to "[s]erving [its] employees and their families by establishing a work environment and company policies that build character, strengthen individuals, and nurture families."

As such, Hobby Lobby would never offer anything to its employees that was knowingly harmful, injurious, or toxic.  Under well-known, traditional Christian teaching, that’s exactly what the contraceptive mandate requires it to do: to offer products and services that violate its core moral and ethical principles.

So the question becomes:  does the First Amendment provide the protections necessary for businesses such as Hobby Lobby to exist?  Or, to frame things differently:  are individuals free under the U.S. Constitution to follow the dictates of their consciences into the private sector, and to start businesses with practices that are religiously informed?  Businesses around which workers, customers, and investors with shared religious values and beliefs can coalesce?

As should become readily apparent, the recognition of “corporate free exercise rights” ultimately redounds to the protection of individuals.  For it is through religiously expressive corporations that many people wish to live out their faiths.  Can it really be the case that the Constitution effectively consigns these individuals to careers and options only in the world of non-profits?  Is the most significant modern means of harnessing private initiative, the business corporation, somehow carved out from the First Amendment’s religious liberty protections?

The United States in many ways remains the freest nation on earth.  Our nation is proud of its commitment to diversity and pluralism, and the protections it affords to those whose beliefs and practices may be unpopular or otherwise controversial.  In many ways, each new generation seems to enjoy greater liberties and rights than the generation before it.  Indeed, we recognize and cherish as rights and freedoms today many things that are nowhere mentioned in the Constitution.  Among these various freedoms, religious liberty has been called our nation’s “First Freedom.”  It was explicitly included in the Constitution by America’s founders to protect those whose religious practices and convictions failed to coincide with majoritarian currents.  It would be sad and ironic for the Supreme Court to curb and restrict this particular liberty at the same time it scrupulously protects and advances so many others.

Ronald J. Colombo is the Associate Dean of Academic Affairs and a Professor of Law at the Maurice A. Deane School of Law at Hofstra University. 

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