Secular Corporations Cannot Exercise Religion, My Friend

Earlier this week, the 6th Circuit Court of Appeals rejected claims stating the requirement that corporations performing secular functions—in this case, the manufacturing company Autocam—cover contraception as part of their employee-insurance packages represented a violation of these corporations' rights. The 6th Circuit is the second circuit court to reject these claims, following the 3rd Circuit (conversely, the 10th Circuit held that there was a "likelihood" that the Hobby Lobby chain of craft scores was "substantially burdened" by the requirement.) Perhaps even more interesting is the reasoning the 6th Circuit panel used to reach its decision. According to the court's persuasive argument, it is not possible for a for-profit corporation with secular purposes to "exercise" religion in a way protected by the Constitution or federal statues.

To provide the relevant background, the most obvious source for a claim that the contraceptive coverage requirements violate religious freedom is the free exercise clause of the First Amendment. In the landmark 1990 decision Oregon v. Smith, however, the Supreme Court held that even if it burdened religious practices, a generally applicable policy does not violate the First Amendment unless it is specifically targeted at a religious group or practice. Under this standard, the argument that the contraceptive requirements violate the free exercise clause is a complete non-starter. The requirement was generally applied, and its goal was not to burden any particular religious group.

However, there is another potential avenue for a lawsuit. In the Religious Freedom Restoration Act of 1993, Congress attempted to re-establish the standard that Smith effectively replaced. The Supreme Court ruled in 1997 that the law could not supersede Smith as a matter of constitutional law. However, RFRA still binds the executive branch. Under RFRA, people alleging a rights violation have to show that the practice would "substantially burden a sincere religious exercise." If a prima facie showing can be made, then the burden shifts to the state to show that it is narrowly tailored to a compelling state interest.

In my judgement, the idea that the contraceptive requirement "substantially burdens" a religious liberty interest is utterly specious. The Sixth Circuit determined, however, that it was not even necessary to reach this question. In an opinion written by the George W. Bush appointee Julia Smith Gibbons (and joined by the Obama nominee Jane Branstetter Stranch and the George H. W. Bush nominee Joseph Martin Hood), the court held that a for-profit corporation with primarily secular purposes cannot "exercise" religion, making the question of whether the ACA's contraception requirements "substantially burden" religious practice moot.

Judge Gibbons's argument is straightforward and compelling. In passing the RFRA, Congress's explicit intention was to re-establish the Sherbert test that had prevailed before Smith. "While the Supreme Court has recognized the rights of sole proprietors under the Free Exercise Clause [before Smith]", Gibbons notes, "it has never recognized similar rights on behalf of corporations pursuing secular ends for profit." Congress cannot have been "restoring" a right for a corporation like Autocam to pursue suits on behalf of its religious rights because such rights have never existed.

Gibbons's opinion is convincing both on the legislative history and as a matter of logic. As Ian Millhiser of Think Progress puts it, "a religious conservative cannot have it both ways by accepting all the benefits of forming a corporation without also bearing the consequences of that decision." A mom-and-pop operation or an explicitly religious corporation might have free exercise rights under the First Amendment and/or RFRA, but a for-profit secular corporation cannot (even if some or all of its shareholders share certain religious convictions.)

Autocam attempts to get around this problem by pointing out that even for-proft corporations have free speech rights under the First Amendment. But the comparison is inapt. There is a substantial public interest in granting some free-speech rights to corporations, and rejecting them completely would very substantially burden free speech. (The government cannot suppress Breaking Bad or Game of Thrones because the shows are produced and distributed by corporations.) The contraceptive requirement, conversely, does not burden any individual—no shareholder is forced to used contraception, and any expense is borne by the corporation. Religious exercise is fundamentally personal in the way that free speech rights are not.

The arguments that the ACA violates religious rights, in other words, are weak on every level. Not only does the contraceptive requirement not significantly burden religious liberty, in the case of secular for-profit-corporations it does not impinge on any recognized constitutional or statutory right at all.

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