There are write-in advice and answer columns in hundreds of newspapers, magazines, and blogs, addressing every conceivable topic. But how many of these openly address fabricated e-mails from "audience" members who are admittedly imaginary? Only one! "Valley Views on the Law," San Joaquin College of Law's monthly legal information radio show on FM 88.1. KFCF, in Fresno, does just that. In the "Dear Professors" segment, I answer the pressing and topical legal questions generated by my own perfervid imagination (along with one actual e-mail from an actual listener) every month, for the edification of the audience. You can also send me an e-mail to JPurvis@SJCL.edu. Here is a recent one preceding a discussion of the Hobby Lobby Decision. We will bring you the second letter next month.
DEAR PROFESSORS:
Letter #1: When I first heard of the Citizen's United decision by the Supreme Court, which was reported in the media as holding that corporations are persons who have the constitutional right to freedom of speech, I thought that was pretty crazy. Then I learned more about the issue--that if corporations did not have freedom of speech, all the major newspaper and other media outlets could be silenced by the government, since they are all corporations. A friend of mine pointed out that the Sierra Club, in which I am a member, is a nonprofit corporation, and might be unable to advocate for environmental preservation if it didn't have freedom of speech. It really turned me around on whether the Citizen's United decision was such a bad one.
Now I read that the Supreme Court has held that corporations have the constitutional right of freedom of religion. I was hoping that you Valley Views on the Law guys could help turn me around on this one, too, because I think that is the stupidest thing I have ever heard. I realize now that a corporation can "speak"--by broadcasting a news show, or printing a newspaper--but I don't understand how a corporation can believe in a god, go to church, pray, or do any of the things that constitute having religious beliefs. I know that calling a corporation a "person" is what used to be called a legal fiction--the law pretended that the corporation was an entity separate from its owners for various legal purposes. And maybe we should keep on pretending as to freedom of speech, so the government can't control the media. But why pretend that a corporation can have religious beliefs?
--John Calvin, Basel, Switzerland
Mr. Calvin, the recent case to which you allude is Burwell v. Hobby Lobby Stores, Inc., in which corporations sought a religious exemption from a federal statute requiring that employer provided health insurance plans cover certain contraceptive methods for women.
These cases were different than the Citizens United decision in a very important way. Citizens United involved the freedom of speech clause of the First Amendment to the Constitution of the United States. The Hobby Lobby case did not turn directly on any religious rights protected by the Constitution; it involved the Religious Freedom Restoration Act of 1993, a federal statute. The Supreme Court decision in Employment Division v. Smith, a 1990 case, which held that when a religious believer asserting her constitutional right to free exercise of religion sought an exemption from a generally applicable law that was neutral as to religion, the rational basis test applied. This meant in practice that the government was not required to provide any religion-based exemption. Congress subsequently created a statutory right to seek such an exemption. "REFRA," as the statute is referred to, provides that a government act that "substantially burdens" a religious exercise must be justified by a compelling government interest, and that interest must be accomplished in the least restrictive way. If that sounds familiar, it is the same as strict scrutiny, the constitutional standard of review that purportedly applied to such free exercise claims prior to the Employment Division v. Smith decision. Congress apparently believed that the Supreme Court had made a mistake in Smith, and corrected that mistake by creating an equivalent statutory protection for religion. If any of you con law fans out there are wondering which enumerated power authorizes Congress to protect someone's religious interests, it is the Commerce Power, the same one that the Rehnquist and Roberts Courts have tried so hard to restrain in the last 20 years.
All of this means that the Supreme Court was interpreting a federal statute instead of the Constitution. And thus, the intent of Congress controlled, rather than theories of constitutional interpretation that might have focused on the intent of the framers. Congress had made it clear in legislation enacted in 2000 that the “exercise of religion” protected by the statute included “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” Congress added that this statutory right “be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution." In Hobby Lobby, a five justice majority, all male, all members of the Roman Catholic Church, held that Congress meant the protected "persons" under REFRA to include all corporations, because protecting the rights of corporations protects the humans who own those corporations. Because the owners of Hobby Lobby and the other affected corporation held religious beliefs that life begins at conception, then some of the contraceptive services required to be covered under the Affordable Care Act would violate those beliefs. If the owners of the corporations chose to honor their religious beliefs by not allowing the corporations to provide the required health insurance coverage, they would be subject to large monetary fines or other costs. So, reasoned the majority, the Affordable Care Act requirement for coverage of contraceptives placed a substantial burden on the Hobby Lobby owners' exercise of their religion. Assuming for the sake of analysis that providing contraceptive coverage was a compelling interest, the majority held that the federal government could achieve that interest in a less restrictive way: by permitting the owners to not provide health insurance coverage for contraceptives, and having the federal government pay for the contraceptive coverage for the affected employees. Even more telling, in the view of the majority, the federal government already provided a religious exemption for nonprofit corporations that objected to the contraceptive coverage, requiring the insurance companies who provided the health insurance to pay for it. Thus, the government could extend this exemption to for-profit corporations while still achieving its interest in providing contraceptive coverage for affected corporate employees.
I want to emphasize that this is a very broad overview of the Hobby Lobby decision, and that I believe that decision has many flaws that could only be appreciated after a complete exegesis of all the opinions of the justices. But I can now provide what I hope is a comprehensible summarized answer to your question, Mr. Calvin. The Supreme Court did not hold that corporations can have protected religious beliefs, it held that Congress intended via REFRA to protect the religious rights of humans in part by also protecting the corporations owned by those humans. In some ways this is even more astonishing than your concern, because the principle that protecting a corporation's rights is justified to protect the rights of its human owners opens the entire panoply of constitutional and statutory rights held by humans to corporations owned by humans. Thus, a corporation might assert a privilege against self-incrimination, or a right of privacy, in response to government demands for corporate records. The implications of this immense expansion of corporate rights will play out in the lower federal courts in the years ahead.