America's highest court is expected to take up a fight soon over the hotly contested requirement in Obamacare that businesses pay for insurance that covers 100% of workers' birth control. Craft chain Hobby Lobby and at least 30 other for-profit companies with religious owners have filed lawsuits claiming the mandate violates their religious beliefs.
It might seem odd that a business would get to exercise its religious beliefs. But this is America, and corporations often get to be people, too.
In its bombshell Citizens United case of 2010, the high court found the Federal Elections Commission violated companies' right to engage in "political speech" by limiting the money they could spend promoting political candidates. That decision caused a lot of outrage but fell in line with a legal doctrine known as "corporate personhood" that says businesses have some of the same rights people do.
For their part, Hobby Lobby and the other businesses fighting the contraception mandate say it violates the Religious Freedom Restoration Act. That act puts the kibosh on laws that put a big burden on people's religious beliefs — or the beliefs of businesses, depending on how the Supreme Court rules.
The Supreme Court is expected to take up the new Obamacare fight because two appeals courts ruled in opposite ways on the birth control mandate issue. Philadelphia's federal appeals court ruled in July that "for-profit, secular corporations cannot engage in religious exercise." That court found there was a "total absence of caselaw" suggesting corporations had the right to religious freedom.
In that case, a Mennonite family named the Hahns who owned a company called Conestoga Wood Specialties Corp. was fighting the contraception requirement. Here's what the court said:
We accept that the Hahns sincerely believe that the termination of a fertilized embryo constitutes an "intrinsic evil and a sin against God to which they are held accountable" ... and that it would be a sin to pay for or contribute to the use of contraceptives which may have such a result. We simply conclude that the law has long recognized the distinction between the owners of a corporation and the corporation itself.
Hobby Lobby had better luck in the Denver federal appeals court, which ruled in June religious expression "can be communicated by individuals and for-profit corporations alike."
"Would an incorporated kosher butcher really have no claim to challenge a regulation mandating non-kosher butchering practices?" that court asked.
The U.S. Supreme Court is likely to agree with the Denver court. Justice Anthony Kennedy, the court's swing voter, wrote the 2010 Citizens United opinion saying corporations have a right to engage in political speech. The court is also thought to be very pro-business in general.
The liberal minority, however, is likely to balk at one more extension of a "human right" to businesses. Now-retired Justice John Paul Stevens wrote an impassioned dissent belittling the idea of Constitutional rights for companies.
Corporations "have no consciences, no beliefs, no feelings, no thoughts, no desires," Stevens wrote. "Corporations help structure and facilitate the activities of human beings, to be sure, and their 'personhood' often serves as a useful legal fiction. But they are not themselves members of 'We the People' by whom and for whom our Constitution was established."
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