In a sharply divided decision, the Supreme Court added religious rights to the ever-expanding list of rights possessed by for-profit corporations. In an opinion authored by Justice Alito, the conservative wing of the Court concluded in Burwell v. Hobby Lobby, that certain for-profit corporations cannot be required to provide contraception coverage under the Affordable Care Act (ACA) where doing so is against the religious beliefs of their owners. In a scathing dissent, Justice Ginsberg described the majority opinion as one of “startling breadth,” which would allow commercial enterprises to opt out of laws they deem incompatible with their religious beliefs.

So now in addition to having the right to free speech absent a mouth to speak, many corporations now have religious rights absent a soul.  

According to the majority opinion, the purpose of extending constitutional and statutory rights to corporations is to protect the rights of living, breathing people.  Protecting the free-exercise rights of corporations “thus protects the religious liberty of the humans who own and control them.” Yet, incorporation serves to create an entity that has legal rights and responsibilities separate from the individual owners. This separation allows individuals to escape personal responsibility for the entity’s actions and obligations—so long as the owners and the corporation are actually separate.  

In the Hobby Lobby case, however, the Court ascribed the religious beliefs of the owners to the corporation itself.  This, Justice Ginsberg rightly noted, might lead one to wonder, “why the separation [of owner and corporation] should hold only when it serves the interest of those who control the corporation.”

Going forward, the Court’s holding – and particularly its view of “corporate personhood” – will undoubtedly be used by corporations to challenge a whole range of generally applicable laws on religious and perhaps other grounds. Although the Court suggests that its holding is limited to closely-held corporations like family-owned Hobby Lobby, it’s not obvious why the same logic would not apply to publicly traded corporations, too.  Remarkably, the majority of justices dismissed this concern by noting that it “seems unlikely” that such corporations would assert similar claims. From our experience, as one of the first organizations to sue a multinational corporation in U.S. court for human rights abuses, it is not only likely, but it is just a matter of time.

In courts across the United States, corporations are already making unprecedented and increasingly bold arguments against legal accountability using the First Amendment’s protection of speech. EarthRights International has witnessed this trend in our work both in and out of the courtroom. Oil companies are currently arguing, for example, that they have a First Amendment right not to divulge their payments to foreign governments. Other companies are arguing laws requiring disclosure of pesticide use and genetically-modified crops violate their constitutional rights. And the Supreme Court has already ruled that corporations have unfettered rights to influence elections (in which only living, breathing human beings, of course, can vote), and that the Constitution limits what a state can do to make sure that corporations doing business in their state are subject to the jurisdiction of their courts for harms they cause. Hobby Lobby is yet another decision that makes it more difficult for Congress and the states to enforce laws, regulate corporate behavior, and protect actual human beings.

But perhaps, courts will find, as they should, that by invoking the owner’s religious beliefs to gain legal exemptions, a company and its owners have acted in a way that belies the fiction of corporate separateness, and thus are no longer entitled to the benefits of separate treatment.

All we know is that the Court has cracked the door. Future cases will determine whether or not it has been flung wide.

Photo CC by David

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