You may recall that during a visit to the Iowa State Fair in August 2011, the then-candidate for the 2012 Republican nomination famously declared, “Corporations are people, my friend.” Romney was responding to catcalls from the audience that taxes on corporations should be raised to fund entitlement programs. He took his lumps on that one, as it was one more in what would be a slew of seemingly out-of-touch musings by the wealthy former governor of Massachusetts.
But, in hearing arguments today in cases challenging a provision of the Affordable Care Act (ACA), the Supreme Court will decide whether Mitt Romney was right after all when it comes to freedom of religious expression.
A Post editorial today breaks down the legal arguments. In short, two companies — Hobby Lobby and Conestoga Wood — want to get out of the ACA mandate that, as the editorial notes, “companies providing health-care insurance to their employees include coverage for a range of contraception services.” Doing so would violate the religious beliefs of the owners, they argue.
The smart folks at SCOTUS blog zero in on the “corporations are people” aspect of these cases.
At the level of their greatest potential, the two cases raise the profound cultural question of whether a private, profit-making business organized as a corporation can “exercise” religion and, if it can, how far that is protected from government interference. The question can arise — and does, in these cases — under either the First Amendment’s Free Exercise Clause or under a federal law, the Religious Freedom Restoration Act, passed by Congress in 1993.
In a manner of speaking, these issues pose the question — a topic of energetic debate in current American political and social discourse — of whether corporations are “people.” The First Amendment protects the rights “of the people,” and the 1993 law protects the religious rights of “persons.” Do profit-making companies qualify as either?
If the Supreme Court answers “yes,” corporations are people entitled to freedom of religion, then the slide on the slippery slope will have begun. As Adam Serwer and Irin Carmon report on MSNBC.com, “[T]he door will potentially be open to much broader claims of religious exemption from neutral laws, including anti-discrimination statutes and in transactions between private citizens.”
That’s why you see the gay rights rainbow flag, for instance, in pictures in front of the Supreme Court today. A win for Hobby Lobby and Conestoga Wood could mean more of those religious freedom laws — more like bigotry masquerading as religious freedom — that Gov. Jan Brewer (R-Ariz.) wisely vetoed earlier this month.
And the consequences of this might explain why high-powered business groups are missing in this debate. “A win for Hobby Lobby would give businesses license to discriminate against employees and consumers and would undermine important legal protections for business owners and shareholders,” the Constitutional Accountability Center (CAC) wrote in a fact sheet on the case provided to me. “Businesses and corporations are designed to be legally separate from their owners as a way to limit liability and enable businesses to take the risks necessary to succeed. A ruling that binds owners’ beliefs to their businesses could destroy this distinction and cause all kinds of legal troubles for business owners down the road.”
Initial reactions after the arguments that I’ve seen were decidedly pessimistic.
Serwer tweeted, “Judging by @irin’s tweets SCOTUS may decide corporations can pray and bosses can dictate employee hcr choices so not a great day for the ACA.” Buzzfeed’s legal writer Chris Geidner tweeted, “Uphill battle for govt on if for-prof corps can bring RFRA claim; uphill battle for HL on substantial burden. Kennedy key.” And the Reuters news agency tweeted, “Majority of #SCOTUS justices appear likely to rule firms have right to religious claims, but ruling on merits unclear #breaking.”
As we learned during the 2012 challenge to the ACA, first impressions of Supreme Court arguments don’t always pan out the way everyone thinks they will. The law went on to be ruled constitutional. So I’m not going to freak out. But if the justices hand down a decision that declares “corporations are people, my friend” and have a right to impose their religious beliefs on employees (or customers), watch out. As CAC Civil Rights Director David Gans said in a statement, “Employees should not have to check their personal liberty and human dignity at the workplace door.”
Follow Jonathan on Twitter: @Capehartj