January 24, 2014

Corporate Religious Liberty Is ‘Without Merit,’ ACS Issue Brief Says

Caroline Mala Corbin, Conestoga Wood Specialties, Hobby Lobby, Religious Freedom Restoration Act, RFRA


Jeremy Leaming, ACS Vice President of Communications

(202) 393-6181 or jleaming@acslaw.org

WASHINGTON, D.C. – Ahead of oral arguments in two challenges to the Affordable Care Act’s contraception policy – to be heard together by the Supreme Court on March 25 – a constitutional law scholar argues in a new ACS Issue Brief that the plaintiffs’ claim of entitlement to a religious exemption from the mandate under the banner of corporate religious liberty is “entirely novel” and “without merit.”

Caroline Mala Corbin, professor of law at the University of Miami School of Law, writes in “Corporate Religious Liberty: Why Corporations Are Not Entitled to Religious Exemptions” that the Free Exercise Clause and the Religious Freedom Restoration Act (RFRA) “do not, and should not, extend to the for-profit corporate form.”

“Corporate religious liberty is theoretically unjustified, without precedent, and potentially harmful,” Corbin explains. In her Issue Brief, she takes a measured and precise look at each element of the claim and why the overall argument ultimately fails. The challenges to the ACA’s policy on contraception coverage were lodged by the for-profit corporations, Hobby Lobby Stores and Conestoga Wood Specialties.

At the center of the argument, Corbin says, is an understanding of what religious liberty claims are meant to protect – namely, the religious conscience of human beings, expressed individually or communally through voluntary associations. In doing so, religious liberty protects a person’s relationship with the divine and a person’s inherent dignity, neither of which can be said to extend to a for-profit corporation.

“Corporations, unlike natural people, do not have a relationship with God,” writes Corbin. “They do not feel shame or sorrow for failing to fulfill their religious duties. There is no point in excommunicating them because they have no soul. … They are not ends in themselves. On the contrary, corporations are a means to an end – artificial entities designed to facilitate economic growth.”

Furthermore, Corbin rejects any attempt to equate for-profit corporations with churches and other houses of worship. “Cashiers, clerks, and other employees simply are not members of Hobby Lobby Stores, Inc. the way they are members of their church or other voluntary association,” she writes. “People join associations because ‘they are persuaded by the principles of the association.’ People take jobs because they have to. They need the paycheck.” For this reason and others, she says, for-profit corporations do not share the “distinguishing features” of a church that would merit free exercise protection.

In her analysis, Corbin takes care to address Citizens United v. Federal Election Commission, the blockbuster case of 2010 used by the U.S. Court of Appeals for the Tenth Circuit to justify ruling in favor of Hobby Lobby. “Corporate free speech is protected because of audiences’ free speech right to receive political information rather than corporations’ free speech right to speak,” she writes. “Citizens United provides neither theoretical nor precedential support for corporate religious liberty.”

Nor will Hobby Lobby and Conestoga Wood Specialties find justification in other precedent. Corbin deftly points out that virtually all cases invoked by the plaintiffs involved non-profit corporations or individuals—neither of which lead to protections for for-profit corporations. In fact, in cases such as Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos and United States v. Lee the Court openly questioned such protections.

Indeed, a ruling in favor of the plaintiffs would be disastrous. Corbin suggests that celebrated worker protections like wage security and workplace safety laws could be the targets of fresh challenges. Already powerful corporations will exert even more power over their employees. And the religious rights of employees would be sacrificed in favor of those of their employers.

Ultimately, Corbin concludes, a ruling in favor of corporate religious liberty would do real harm to actual people. “Recognizing corporate religious liberty will make religious liberty more available to the elite,” she says, “and more scarce for everyone else.”

Read the full Issue Brief here. To speak with the author, contact Jeremy Leaming at jleaming@acslaw.org or (202) 393-6181.

The American Constitution Society for Law and Policy (ACS), founded in 2001 and one of the nation's leading progressive legal organizations, is a rapidly growing network of lawyers, law students, scholars, judges, policymakers and other concerned individuals dedicated to making the law a force to improve lives of all people. For more information about the organization or to locate one of the more than 200 lawyer and law student chapters in 48 states, please visit www.acslaw.org.