Religious liberty is for people, not corporations
updated 7:03 PM EST, Tue November 26, 2013
Hobby Lobby takes on Obamacare
STORY HIGHLIGHTS
- Elizabeth Wydra: Supreme Court to review contraception challenge to Obamacare
- Owners of corporations say providing that coverage violates religious freedom, she says
- She says business owner can't shift between individual, corporate status for advantage
- Wydra: If justices follow more than 200 years of law, they'll hand victory to Obamacare
Editor's note: Elizabeth B. Wydra is chief counsel for the Constitutional Accountability Center,
a public-interest law firm, think tank and action center. She regularly
participates in Supreme Court litigation. Follow her on Twitter @ElizabethWydra.
(CNN) -- Once again, Obamacare has made its way back before the Supreme Court.
The high court decided Tuesday
to review two challenges by for-profit corporations and their religious
owners over comprehensive contraception coverage required by the
Affordable Care Act. And if the justices follow more than 200 years of
constitutional law and history on what it means to enjoy the free
exercise of religion in America, the court should yet again hand a
victory to the act.
It had little choice but to agree to hear the cases this term.
Using unprecedented legal reasoning, three federal circuit courts of appeals
have ruled that secular, for-profit business corporations and/or the
individuals who own them have a valid claim that the mandate to provide
no-cost, FDA-approved contraception in their employer-sponsored health
plan violates their asserted right to the free exercise of religion.
Two other federal circuit
courts of appeals have rejected these claims; the Supreme Court
frequently steps in to resolve such disagreements among the federal
courts of appeals.
Unless the Supreme Court
reverses these radical decisions, the consequences could reach far
beyond the Affordable Care Act, making this particular roadblock for
Obamacare more problematic in the long term than the well-publicized
problems associated with the health exchange website's rollout.
Elizabeth B. Wydra
By accepting the
religious free-exercise claims, these three federal courts have turned
first principles of religious freedom, as well as fundamental tenets of
corporate law, on their head.
From the nation's
founding until today, the Constitution's protection of religious liberty
has been seen as a personal right, inextricably linked to the human
capacity to express devotion to a God and act on the basis of reason and
conscience.
Business corporations,
quite properly, have never shared in this fundamental constitutional
tradition for the obvious reason that a business corporation lacks the
basic human capacities -- reason, dignity and conscience -- at the core
of the right to free exercise of religion. Obviously not "persons" in
the usual sense of the word, these corporations are also not religious
organizations, which have historically received some constitutional
protection and are, in fact, given exemptions from the contraception
mandate.
These businesses do not
hire employees on the basis of their religion and their employees are
not required to share the religious beliefs personally held by the
corporation's owners. In all of American history, secular, for-profit
corporations have never been understood to "exercise" religion -- have
you ever seen Exxon Mobil in the pew next to you at church? -- and have
never been protected by the right to free exercise.
Supreme Court to hear birth control case
To be sure, the devout
individual business owners behind the corporations in these challenges
have their own personal rights to exercise their religion, but those
rights have nothing to do with Obamacare's contraception coverage
requirement. Why? Because federal law does not require the individuals
who own the company to personally provide health care coverage or to
satisfy any other legal obligation of the corporation. The law places
requirements only on the corporate entity.
To conflate the corporations in these cases with their owners violates basic principles of corporate law.
When business owners
create a corporation as the means of carrying out their business, they
create a distinct legal entity with rights, obligations, privileges and
liabilities that are different from the individuals who set up the
corporation. This generally works to the benefit of the individual
owners, which is why people choose to incorporate in the first place.
And it means that certain rights specific to individuals do not carry
over to the corporate form.
For example, the Supreme
Court has held that an individual acting in his personal capacity has
the right to "plead the Fifth" and refuse to turn over documents that
could incriminate him, but that same individual acting in his official
capacity as a corporate owner has no such right against
self-incrimination. Like the right to the free exercise of religion, the
right against self-incrimination has always been understood to be a
personal right of freedom and conscience that artificial corporate
entities simply do not share.
A business owner simply
does not have the right to move back and forth freely between individual
and corporate status to obtain all the advantages and avoid any of the
disadvantages of the respective forms.
Whether you have cheered
the misfortunes Obamacare has suffered over the past month or bemoaned
them, the distortion of basic principles of corporate law and free
exercise jurisprudence by the three federal courts that have endorsed
the corporate challenges to the ACA's contraception mandate should be
troubling.
The Supreme Court, as always, will have the final say.
If the justices follow
more than 200 years of constitutional law and history, not to mention
basic principles of corporate law, the court should hand another victory
to Obamacare.
I'm sure the
administration -- and more importantly, the women and their families who
risk losing important health benefits to which they are legally
entitled -- would welcome the win.
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