The Supreme Court Is About to Consider Letting Businesses Turn You Away Over Religion

By Dan Schneider

Members of the Green Family, founders and owners of Hobby Lobby, have taken to YouTube to make their case to the public, perhaps not realizing that the Supreme Court is not the court of public opinion.

On Tuesday the Supreme Court will hear oral arguments in Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius. Both cases will turn on the question of whether arts and craft stores and Mennonite cabinetmakers are required to provide contraceptives and things like Plan B under the Affordable Care Act if they have a sincere religious objection to doing so.

No matter how the justices ultimately rule, the cases are set to have an explosive impact not only on the relationship between bosses and their employees, but also between business owners and their customers. Although little discussed in the lead-up to oral arguments, there is a complex issue at stake in Hobby Lobby and Conestoga Wood that extends beyond the birth control debate: whether or not corporations as legal persons are allowed to impose their religious beliefs on anyone who interacts with them, an issue that recently bubbled up when states like Kansas and Arizona attempted to pass laws allowing businesses to discriminate against same-sex couples.

To understand how all of these knotty issues are tied together, it’s important to consider the concept of corporate personhood.  No one is claiming that a corporation is literally a person—that would be absurd. A corporation is a person only in the legal sense, a designation that they’ve had in some form since the 1800s.

Yet the concept of a corporate person has only become a political issue in the past decade, and the broader public has only begun to take notice in the last few years following the Supreme Court’s controversial ruling in Citizens United v. Federal Election Committee. The concept of giving legal entities freedom of speech rights has been especially maddening to those who loathe the presence of ultra-moneyed players in the American political theater. Campaigns to amend the Constitution to restrict these rights have gained some support on the left, but the Supreme Court’s ruling on the issue remains unchallenged.

Many are similarly skeptical of the idea that a business entity could flout state and federal laws because its god(s) said that it had to. This includes people like writer and civil libertarian Wendy Kaminer, who wrote in The Atlantic in 2012 that “if the rights of diverse employees in a secular enterprise are subject to the beliefs of their employers… they'll determine, in part, laws governing the rest of us.” (It’s worth noting that Wendy has been an ardent supporter of the Citizens United decision.)

In the past, the Supreme Court has generally ruled against business owners who have tried to claim some religious exemption from a law, according to George Washington University law professor Ira Lupu. He cites examples like Braunfeld v. Brown (1961), which rejected Jewish merchants' attempt to overturn a law preventing them from selling liquor on Sundays.

This lack of precedent was likely at the top of Judge Robert Cowen’s mind when he ruled against Conestoga Wood's challenge in the Third Circuit Court of Appeals in July 2013. Extending such a First Amendment right to a for-profit business would, the conservative judge wrote, “eviscerate the fundamental principle that a corporation is a legally distinct entity from its owners.” Then again, the Tenth Circuit was comfortable finding the opposite to be true when it wrote a month earlier that “corporations can be ‘persons’ exercising religion.”

Planned Parenthood has also jumped onboard the YouTube-campaigning train with this video. What they lack in all-American wholesomeness, they make up for in stick figure drawing. 

So which interpretation is right? According to Ira, it’s not that simple.

“There’s no real case law either way. No case that says, ‘Oh, this is a business in the corporate form, so it doesn’t have religious freedom rights,’ and none that says the opposite,” Ira said. In other words, we’ve entered into a new area of First Amendment law.

The precedent needed to extend religious practice rights to businesses may be coming around the corner, depending on the outcome of Tuesday’s arguments. For some, it already feels like there is a precedent. 

Take Katie Roberts, for instance. Katie has lived in Amarillo, Texas since she was born and now works in the city as a physical therapist’s assistant to help support both herself and her fiance, Amanda Parrack.

On Valentine’s Day Katie walked into a local gym, the Amarillo Town Club, with questions about getting a couple's membership for herself and her future wife. She was curtly told that the gym only allowed couples married in state to hold a couple’s membership—an impossibility for Katie due to Texas's ban on same-sex marriage. After leaving without even being offered a single’s membership, Katie had a strong feeling that she’d been swindled.

“I knew what he said wasn’t true. There are plenty of people there who have been married that were married out of state,” Katie said.

Inspired by the support of other gay families who were denied membership at the club, Katie decided to start an online petition to change its official policy. She’s since gathered about 5,000 signatures towards her cause, many from her fellow Texans, and has been working to inform locals about how the gym is imposing its religious beliefs on others.

“I see this as discrimination,” she said, “and I want my town to be aware.”

It was right around that time that news broke of proposed legislation in Kansas that would allow wedding-related businesses to refuse service to gay couples.  The law quickly died after being exposed to harsh national scrutiny, but an even harsher “religious freedom” law was passed by the Arizona legislature and landed on Governor Jan Brewer’s desk. 

As executive director of the Arizona chapter of the American Civil Liberties Union (ACLU), Alessandra Soler spent part of February fighting the Arizona law. She said laws like the one Brewer ultimately vetoed are transparent attempts to institute Jim Crow-style legislation against the LGBT community.

“It’s obviously being used to target the gay community, because people have strong religious and moral beliefs about same-sex couples here,” Alessandra said.

To Alessandra, the idea that “businesses can use their religion to discriminate against people” is legally and historically “unprecedented,” and she may be right. It would explain why groups—including pro-business organizations like the Chamber of Commerce—have objected so strongly to them.

It’s still an open question whether laws like those that failed in Kansas and Arizona will ever stand up in court, which is what makes the coming decisions in Hobby Lobby and Conestoga Wood so vital. Should the Supreme Court rule against the government, Ira said, the political and cultural momentum needed to pass more restrictive state-level religious freedom laws may grow. But the legal implications won’t be clear until the actual rulings come down.

“Whether it would really make a difference, I have my doubts. But if a person in the RFRA is said to include a corporate person, then every state would be more likely to say that businesses are persons, as well,” he said, adding that the court could even go halfway and say that business owners don’t have standing to bring such claims, but that their shareholders do.

Hobby Lobby certainly believes it has standing in this case. In its brief filed with the Supreme Court on February 10—and in many of the amicus briefs filed in support of the company—the lawyers for the Green family argue in no uncertain terms that a for-profit company is not only a person, but deserves the same protections currently afforded to non-profit companies and religious corporations like a church.

“It cannot possibly be right to ask whether for-profit corporations ‘have’ free exercise rights, in contrast to other entities organized in different forms,” the brief states. “The question is simply whether the law burdens religious exercise.”

Even today the idea that a business ought to serve as a moral extension of its owner remains a relatively popular idea. This notion resonates not only with the religious right, but among some libertarian-minded proponents of limited government, a handful of First Amendment purists, and even Amarillo’s Katie Roberts.

“I feel that it’s every private business’s right to stand where they choose on the subject,” Katie said. “You don’t want me there, I don’t want to be there.”

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