Are secular, for-profit corporations free to violate the rights of their employees by claiming that the law violates their corporate religious conscience? That's the big question at the heart of the two blockbuster challenges to a key provision of Obamacare that will be heard by the Supreme Court next week. In its 225-year history, the Supreme Court has never held that secular, for-profit corporations are entitled to the free exercise of religion. It should not start now.
Hobby Lobby and Conestoga Wood claim in their lawsuits that the Affordable Care Act's requirement that employers' health insurance plans cover preventive care for women, including the full range of FDA-approved contraceptives, violates their right to the free exercise of religion. Houses of worship and other religiously affiliated employers already are entitled to a religious accommodation. Some secular businesses, such as Hobby Lobby, claim that they too exercise religion and should be exempted from the obligation to pay for contraceptive coverage for their employees.
Corporations have a number of constitutional rights, mostly connected to property rights and commerce, but the free exercise of religion has never been one of them. The Constitution's protection of religious liberty always has been seen as a personal right, inextricably linked to the human capacity to express devotion to a god and to act on the basis of reason and conscience. In this respect, the free exercise right shares much in common with the 5th Amendment's privilege against self-incrimination, which too safeguards dignity and conscience and does not protect corporations.
Corporations lack the basic human capacities — reason, dignity and conscience — at the core of the free exercise right. Corporations cannot pray, do not express devotion to God and do not have a religious conscience. The fundamental values at the heart of the free exercise right simply make no sense as applied to corporations.
Corporations are created so business owners can take advantage of the special privileges of the corporate status, such as limited liability. What Hobby Lobby and Conestoga Wood are seeking is to have their cake and eat it too: to be treated as a corporation to receive special privileges, but then be treated as an individual for the purposes of the fundamental protections our Constitution guarantees to secure freedom of conscience and human dignity for all Americans. Corporations should not be permitted to game the system in this way.
Extending free exercise rights to corporations would undercut the rights of actual living, breathing Americans. At stake in this lawsuit is whether corporate chief executives are entitled to impose their religious beliefs on their employees and deny important federal rights to those employees. Hobby Lobby and Conestoga Wood hire workers of all religious faiths and persuasions, but refuse to respect that many of their employees may have a different set of religious views and want and need access to the full range of contraceptives.
Far from vindicating the Constitution's promise of religious liberty, a ruling that corporations have the same right to the free exercise of religion as individuals would be a grave setback for the rights of Americans in our nation's workplaces. It would also create a dangerous precedent with dramatic implications far beyond the Affordable Care Act.
A business run by Christian Scientists might refuse to pay for healthcare at all, other businesses run by devout individuals might refuse to pay for the costs of stem cell therapy, or refuse to extend family leave to same-sex married couples, or even fire employees for engaging in activities, such as terminating a pregnancy, that do not conform to the religious code of the company's owners.
The justices should reject the notion that a corporation is a person that exercises religion.
David H. Gans is director of the Human Rights, Civil Rights and Citizenship Program at the Constitutional Accountability Center. He is a coauthor of the center's amicus brief in Sebelius vs. Hobby Lobby Stores and Conestoga Wood Specialties Corp. vs. Sebelius.