David H. Gans, CONSTITUTION DAILY
David H. Gans from the Constitutional Accountability Center argues that a potential Supreme Court decision to give religious protections to for-profit corporations has ramifications beyond the fight over Obamacare.
The government shutdown may have ended, but the hardline conservative attack on the Affordable Care Act hasn’t. In the coming months, the Supreme Court will decide whether to hear challenges brought by secular, for-profit corporations and their owners to a key provision of the ACA that requires certain employers to provide female employees with health insurance that covers all FDA-approved contraceptives.
The ACA already exempts religious employers from the duty to provide contraceptive coverage, but these secular, for-profit corporations insist they are entitled to exemption as well. In its own challenge earlier this year, Hobby Lobby, an arts and crafts chain, succeeded in persuading the United States Court of Appeals for the Tenth Circuit to accept a truly remarkable proposition: that the corporate entity itself is a person exercising religion and is entitled, on grounds of religious conscience, to deny its female employees health insurance coverage for FDA-approved contraceptives. Two other federal circuits have rejected this analysis, and the Supreme Court has been asked to resolve the split between the federal courts of appeal. If, as is widely expected, the Court agrees to hear Hobby Lobby, the case will be vitally important on a broad range of issues: corporate personhood and the rights of business corporations, women’s health, employee rights, the role of religion in the workplace and more.
In the 225 years since the ratification of the Constitution, the Supreme Court has never held that secular, for-profit corporations are entitled to the Constitution’s protection of the free exercise religion. As we explain more fully in this legal brief and issue brief, it should not do so now.
From the Founding on, the Constitution’s protection of religious liberty has always been seen as a personal right, inextricably linked to the human capacity to express devotion to a God and act on the basis of reason and conscience. Business corporations, quite properly, have never shared in this fundamental aspect of our constitutional traditions for the obvious reason that a business corporation lacks the basic human capacities – reason, dignity, and conscience – at the core of the Free Exercise Clause. No decision of the Supreme Court, not even Citizens United, has ever invested business corporations with the basic rights of human dignity and conscience. To do so would be a mistake of huge proportions, deeply inconsistent with the text and history of the Constitution and the precedents of the Supreme Court.
Business owners, who have chosen to run their business through the corporate form in order to obtain special privileges, such as limited liability, cannot disclaim their corporate status and insist that they are simply individuals exercising their own private religious beliefs. As the Supreme Court has recognized, even in the case of a corporation owned by a single shareholder, “[i]ncorporation’s basic purpose is to create a distinct legal entity, with legal rights, obligations, powers, and privileges different from those of the natural individuals who created it, who own it, or whom it employs.” Thus, it is fundamental that corporate owners do not act as individuals when acting on behalf of the corporation.
Far from vindicating the Constitution’s promise of religious liberty, a ruling in Hobby Lobby’s favor would be a grave setback for the rights of Americans in our nation’s workplaces. It would allow business owners to impose their personal religious beliefs on their employees, many of whom have a different set of religious views and want and need access to the full range of contraceptives. It would create a dangerous precedent that could make it easier for employers to discriminate against employees for engaging in all manner of activities that may not conform to the religious code of the company’s owners, including using contraceptives or terminating a pregnancy, becoming pregnant out of wedlock, or marrying a person of the same sex. That cannot be justified in the name of the First Amendment.
David H. Gans is the Director of Constitutional Accountability Center’s Human Rights, Civil Rights and Citizenship Program.
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