Do Corporations Have Religious Freedom?

         To what effect does a corporation have the right to religious freedom? How far can the rights of a corporation extend if it means limitations on individuals’ religious liberties? The answers to these questions are as divisive as religious freedom itself. The Constitution and The Bill of Rights were written to provide American citizens with a concrete establishment and preservation of specific rights. One of which was the first amendment. It states that, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”; this has been interpreted in a variety of ways throughout United States’ history. For the purpose of this article I will divide the amendment into two perspectives. The first perspective comes from the left. The political left interprets, “congress shall make no law respecting an establishment of religion” as, the United States shall not favor one particular religion over another. People are free “from” religion in this sense. The right tends to focus on, “or prohibition of the free exercise thereof”, meaning that the government cannot restrict an individual’s choice to practice their religion, or their right “to” religion. Both interpretations are reasonable and merit considerable debate in considering the rights of each individual. What makes this increasingly difficult and unjust is when we extend this liberty, this god given right, to the American business corporation.

This begins with the perception that corporations are people. The United States’ history on this subject can be summed up by a number of Supreme Court cases thought the years. Beginning in 1819 with Trustees of Dartmouth College v. Woodward. In this case, The Supreme Court of the United States ruled that the Contract Clause of the US Constitution also applies to private corporations.

Article I, section 10, clause 1. It states:

“No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.”

Dartmouth College v. Woodward dealt with the legislature of The State of New Hampshire’s attempt to alter the charter of Dartmouth College in 1816. The State was attempting to reinstate Dartmouth’s recently removed president. If New Hampshire had succeeded, the state would have acquired the authority to appoint governing positions within the college. The challenge here, constitutionally, was that Dartmouth and its charter was established before the State of New Hampshire was, under the authority of Great Britain. Also, Dartmouth was founded as a private institution, if the court ruled in favor of Woodward, the private college would have become public. This established a distinction between private and public charters and marked the beginning of the American business corporation. This also marked the first time in United States’ history that corporations could be granted the same constitutional rights as natural persons.

Issues of corporate person hood rose once again in 1886 with Santa Clara County v. Southern Pacific Railroad Company. In this case, the Supreme Court ruled again that corporations can be granted the same constitutional rights a natural persons. In this case, it was decided that the 14^th amendment regarding the equal protection clause applied to Southern Pacific and hence corporations from that moment forward. The case dealt with taxation of railroad properties. Specifically, legislatures like Santa Clara were attempting to deny railroad companies the right to deduct their debts from the taxed value of the land under company ownership. This was something that individuals before had the right to do. In constitutional context, the railroad company believed that this exemption violated their 14^th amendment rights under equal protection.

Corporate person hood became all but certain in Citizens United v. Federal Election Commission in 2010 when the Supreme Court granted corporations the right to free speech when they struck down the FECs attempts to block corporate funds for political ads. In this case, Citizens United, a conservative non-profit political advocacy group, asserted that present "McCain-Feingold law” or campaign reform law restricted the organization’s First Amendment rights. The non-profit was attempting to air, Hillary: The Movie, a film critical of Hillary Clinton meant to attack the candidate during the 2008 Democratic Party primaries. However the FEC blocked the broadcast with the authority of the Bipartisan Campaign Reform Act of 2002.

                The decision struck down the Bipartisan Campaign Reform Act’s provisions restricting corporations and unions from spending funds to air advertisements mentioning a candidate’s name before political elections. Ultimately, the Supreme Court ruled that it is unconstitutional to limit corporations and unions from spending funds on “independent communications”. The ruling opened the floodgates to corporate political expenditures because the ruling gave no limitations on corporate expenditure although current campaign finance law still retains restrictions on an individual’s campaign contributions. After this ruling the next presidential election cycle topped 6 billion spend by political candidates, 700 million more than in the 2008 presidential election according to the Center for Responsive Politics.

This concern was best expressed by one of candidates, Barrack Obama. He said, "I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities." (Obama, 2010)

Most recently, in the case of Burwell v. Hobby Lobby Stores, Inc., the Supreme Court has now ruled that some corporations are to be granted first amendment rights. Under this ruling, “closely held” for profit corporations are to be exempt from provisions of the Affordable Care Act that required these companies to provide certain forms of birth control to their employees. The Green Family of Hobby lobby believed that the law was forcing them to break their closely held beliefs against “morning after pills” or plan B. Even though they are a for-profit company, the family believed that this was a direct violation of their first amendment rights of the free exercise clause. The Affordable care act, which depended on restrictions made by the US Department of Health and Human Services had already included provisions protecting non-profit church organizations from providing forms of contraception but it did not allow for private, for profit companies of 50 employees or more to do the same. The case centered on the Green Hahn families’ religious belief that life begins at conception. As well as their objection to emergency contraception such as, Plan B and IUDs such as, ParaGard. The majority opinion of the Supreme Court ultimately ruled in favor of “closely held companies” like Hobby Lobby, citing the Religious Freedom Restoration Act of 1993 and not the free exercise clause of the First Amendment.

The majority opinion argued that shareholders' and employees' religious rights were in need of protecting. While the discerning opinion stated;

"In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs. ... Compelling governmental interests in uniform compliance with the law, and disadvantages that religion-based opt-outs impose on others, hold no sway, the Court decides, at least when there is a 'less restrictive alternative.' And such an alternative, the Court suggests, there always will be whenever, in lieu of tolling an enterprise claiming a religion-based exemption, the government, i.e., the general public, can pick up the tab. (Ginsberg, 2014)

Today, corporations now have constitutional protections under, the 14^th amendment though equal protection, and 1st amendment which includes both free speech and religious freedom. This is dangerous because corporations as a legal entity, were formed to separate the activities of the individual and the activities of the corporations. If a company is involved in illegal or risky activity, that accountability for those actions do not come down onto a single person but rather on the company as a whole. That is the incentive to incorporate. To what extent can a company with thousands of employees practice religious beliefs though a corporation? Under this logic could the first amendment be used to defend an employer who does not believe in gay marriage and has a problem against employing homosexual individuals?

Under court rulings such as Burwell v. Hobby Lobby, the company’s religious liberties hold greater legal precedence than the health and well being of the individual because so much of the US healthcare insurance system depends on insurance provided by the employer. This ruling shows that in the United States, when the employer’s and the employees’ fundamental beliefs and wellbeing are at odds, the employer’s beliefs and well being prevail. The consequences for this could possibly lead to life and death if such beliefs in corporate person hood win over the rights of natural persons. Although the corporation may in many ways contain a mixture of real people with their own constitutionally protected liberties, the company itself is not living and breathing and the well being of that company is not subject to heath complications. Under the logic of the Supreme Court, corporate religious liberties, when they prove to be most profitable, trump the reproductive health of its female employees. Allowing companies to cherry pick coverage when it is most convent under federal law does not allow fair standing for natural persons who seek the most affordable and accessible option.

Workers should not need to enter into employment with companies like Hobby Lobby with a clear understanding of its founders closely held beliefs, because the private business model needs to remain secular. When the workforce discriminates and acts on personal beliefs we have an unequal environment. Allowing companies to withhold benefits because of personal preface is dangerous for equality. Just because women have different medical needs that conflict with an employer’s religious beliefs, does not mean that the employers liberties are more important. The United States has a longstanding belief that when an individual’s exercise of personal liberties conflict with another’s that other person’s beliefs should not be infringed upon. In the case of Burwell v. Hobby Lobby and other cases concerning corporate personhood that’s exactly what happens, but on a very large scale.