Three years ago the U.S. Supreme Court ruled that corporations have the same rights as individuals to engage in political speech. As Justice Anthony Kennedy wrote in the Citizens United decision, the “corporate identity” of a speaker did not justify a reduced level of free speech protection. Can that same concept about corporate identity be applied to religious liberties? Do corporations have religious liberty rights too?
Some legal scholars are claiming they do not:
The raft of ACA cases raises the specter of doctrinal inconsistency within First Amendment jurisprudence between freedom of expression and freedom of religion,” says First Amendment expert Clay Calvert of the University of Florida. “If Citizens United means that secular, for-profit corporations possess the right to freely express political viewpoints by spending money, then at first glance it seems to follow that such corporations also possess the right to freely exercise religious beliefs by refraining from spending money.”
Yet, Calvert adds, “there is nothing historically that would require merging or blending the free speech and free exercise clauses on the question of whether corporations are treated like human beings. Just because two clauses fall within the same amendment does not mean principles that apply to one must apply to the other,” Calvert says. “Voluntarily spending money on political advertising is fundamentally different than being compelled to spend money to pay for insurance that could be used to purchase contraception.”
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“Secular, for-profit corporations cannot exercise religion,” says Leslie C. Griffin, who teaches constitutional law at the University of Nevada, Las Vegas. “Running a business is not the exercise of religion. Providing insurance coverage is not the exercise of religion. It is a mistake to think of every moral belief as the exercise of religion.”
Using the RFRA “to advantage ‘religious,’ secular, for-profit companies violates the establishment clause by giving religious businesses a leg up in commercial competition,” Griffin says. “It is not protecting religious liberty in any way.”
Marci Hamilton, a professor at the Benjamin N. Cardozo School of Law, agrees. “Whatever their beliefs, the federal law did not impose a substantial burden,” says Hamilton, who has argued an RFRA case before the Supreme Court. “If anything, it is an indirect burden several times removed. These businesses are not going to prevail and they shouldn’t.”
