The Roberts Court has done it again.
Determined to make the terrible implications of the Corporations United and McCutcheon decisions look tame by comparison, the Supreme Court ruled this morning that because it believes corporations to be people, an artificial for-profit entity like Hobby Lobby is entitled to religious liberty, and so it does not have to follow laws that its owner or owners find objectionable.
Hobby Lobby’s right wing owners sued the Obama administration after the passage of the Patient Protection Act, wanting the courts’ blessing to allow them to deny access to contraceptives to their female employees, even though the contraceptives were being provided through the women’s insurance plans.
Today, the Roberts Court granted its blessing, in another 5–4 decision, with Roberts, Kennedy, Scalia, Alito, and Thomas (all men!) forming the majority.
Ginsburg, Sotomayor, Kagan, and Breyer dissented; Ginsburg authored the blistering dissent, which effectively assailed the majority’s logic:
In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs. Compelling governmental interests in uniform compliance with the law, and disadvantages that religion-based opt — outs impose on others, hold no sway, the Court decides, at least when there is a “less restrictive alternative.” And such an alternative, the Court suggests, there always will be whenever, in lieu of tolling an enterprise claiming a religion-based exemption, the government, i.e., the general public, can pick up the tab.
The Court does not pretend that the First Amendment’s Free Exercise Clause demands religion-based accommodations so extreme, for our decisions leave no doubt on that score. Instead, the Court holds that Congress, in the Religious Freedom Restoration Act of 1993 (RFRA) dictated the extraordinary religion-based exemptions today’s decision endorses. In the Court’s view, RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners’ religious faith — in these cases, thousands of women employed by Hobby Lobby and Conestoga or dependents of persons those corporations employ.
Later on in her dissent, Ginsburg observed that the Court was making entirely new law by granting the plaintiff’s wishes, and setting a very bad precedent to boot.
Until this litigation, no decision of this Court recognized a for-profit corporation’s qualification for a religious exemption from a generally applicable law, whether under the Free Exercise Clause [of the U.S. Constitution] or RFRA. The absence of such precedent is just what one would expect, for the exercise of religion is characteristic of natural persons, not artificial legal entities.
As Chief Justice Marshall observed nearly two centuries ago, a corporation is “an artificial being, invisible, intangible, and existing only in contemplation of law.” Trustees of Dartmouth College v. Woodward , 4 Wheat. 518, 636 (1819).
Corporations, Justice Stevens more recently reminded, “have no consciences, no beliefs, no feelings, no thoughts, no desires.” Citizens United v. Federal Election Comm’n , 558 U. S. 310, 466 (2010) (opinion concurring in part and dissenting in part).
In a rejoinder to Justice Alito, the author of the majority opinion, Ginsburg pointed out that a religious community and a for-profit corporation are very different:
The Court notes that for-profit corporations may support charitable causes and use their funds for religious ends, and therefore questions the distinction between such corporations and religious nonprofit organizations… Again, the Court forgets that religious organizations exist to serve a community of believers. For-profit corporations do not fit that bill. Moreover, history is not on the Court’s side. Recognition of the discrete characters of “ecclesiastical and lay” corporations dates back to Blackstone, see 1 W. Blackstone, Commentaries on the Laws of England 458 (1765), and was reiterated by this Court centuries before the enactment of the Internal Revenue Code.
The decision also constitutes a slippery slope, Ginsburg said, implying that, if given the opportunity, Roberts, Kennedy, Alito, Thomas, and Scalia would allow publicly-traded corporations to use religion as a pretext for not having to follow U.S. law:
The Court’s determination that RFRA extends to for-profit corporations is bound to have untoward effects. Although the Court attempts to cabin its language to closely held corporations, its logic extends to corporations of any size, public or private. Little doubt that RFRA claims will proliferate, for the Court’s expansive notion of corporate personhood—combined with its other errors in construing RFRA—invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith.
In a footnote, Ginsburg elaborates:
The Court does not even begin to explain how one might go about ascertaining the religious scruples of a corporation where shares are sold to the public. No need to speculate on that, the Court says, for “it seems unlikely” that large corporations “will often assert RFRA claims.” Perhaps so, but as Hobby Lobby’s case demonstrates, such claims are indeed pursued by large corporations, employing thousands of persons of different faiths, whose ownership is not diffuse.
“Closely held” is not synonymous with “small.” Hobby Lobby is hardly the only enterprise of sizable scale that is family owned or closely held. For example, the family-owned candy giant Mars, Inc., takes in $33 billion in revenues and has some 72,000 employees, and closely held Cargill, Inc., takes in more than $136 billion in revenues and employs some 140,000 persons.
Today’s decision by the Supreme Court is as senseless as Plessy v. Ferguson and Dred Scott v. Sandford. The former decision took fifty years to be overturned by the Warren Court in Brown v. Board of Education.
We cannot afford to wait fifty years for Corporations United, McCutcheon, Hobby Lobby, and previous decisions equating corporations to people and money to speech to be overturned. We need a constitutional amendment explicitly stipulating that natural persons are the only kind of person there is.
Corporations have not, are not, and never will be analogous to persons. They are, as Justice Marshall said in the decision excerpted above by Justice Ginsburg, artificial entities. They do not live, breathe, eat, sleep, get sick, laugh, cry, or die. A corporation is more like a government than a living, breathing person.
And, in fact, corporations increasingly are behaving like governments… privately-owned governments that are the equivalent of oligarchies.
Consider the implications of today’s decision. Hobby Lobby’s owners can deny access to contraceptives to their female employees, merely because they do not believe in pregnancy prevention. As far as they are concerned, they should be able to determine what kind of healthcare their employees get, because they’re the owners of the company. The employees have no say. Their only choice is to quit. That’s corporate servitude at its finest: Take it or leave it employment.
U.S. Representative Suzan DelBene, who represents NPI’s home congressional district, issued a statement condemning the ruling and vowing to do what she could to prevent reproductive rights from being further curtailed.
I’m very disappointed by the Court’s decision to allow closely held corporations to deny access to basic healthcare, such as contraception, to their employees. With this ruling, the Court has allowed employers to impose their religious beliefs on their workers. A woman’s boss should never be the one to make healthcare decisions for her – these decisions should be between her and her doctor.
Birth control is a critical component of women’s healthcare. Ninety-nine percent of women use birth control at some point in their lives, and more than 600,000 women in Washington state have benefited from the requirement that insurance companies provide preventative healthcare free of charge.
The Supreme Court’s decision could also have serious consequences far beyond contraception. While the Court’s decision suggests that today’s ruling applies only to contraceptive coverage, I am troubled by the opportunity it creates for employers to potentially object to further medical services on religious grounds. In the coming weeks, I’ll be working with my colleagues in Congress to address this ruling and to ensure women’s access to birth control is protected.
We need to do more than just mitigate today’s decision. If we don’t stop the Roberts Court from destroying our freedoms, they will keep going until America has turned into a modern-day feudal society, run by corporations and for corporations instead of people. We can’t let that happen.
We need to reclaim our democracy from the Roberts Court with a constitutional amendment wiping out all of the bad case law that they’ve established. Until we do this, progress on a wide range of other issues is going to be elusive. Look what the Court has just done to a key provision of the Patient Protection Act.