Hobby Lobby, Corporations & Constitutional Rights

By Professor Christopher Schmidt

Yesterday’s decision in the Hobby Lobby case offers yet another chapter in the still-unfolding story of the extent to which corporations are “persons” for purposes of claiming constitutional rights. Judicial recognition that corporations might claim constitutional rights has a long history, dating back to the late nineteenth century. In recent years, the Supreme Court has sparked renewed attention to the issue, most notably with its 2010 decision in Citizens United in which a 5-4 majority held that certain campaign funding restrictions violated the First Amendment free speech rights of corporations.

In the Hobby Lobby case, one of the government’s arguments in defending the challenged contraception coverage of the Affordable Care Act was that the plaintiffs lacked the standing to even make this kind of religious freedom claim. Only Justices Ginsburg and Sotomayor bought that argument (Justices Breyer and Kagan did not join that section of Justice Ginsburg’s dissent in which she challenged “the notion that free exercise rights pertain to for-profit corporations”).

Justice Alito, in his Opinion of the Court, insisted that when Congress passed the Religious Freedom Restoration Act of 1993, it “employ[ed] a familiar legal fiction: It included corporations within RFRA’s definition of “persons.” He went on to explain that “the purpose of this fiction is to provide protection for human beings.”

A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people.

He then listed as an example the value of allowing corporations to make Fourth Amendment claims, which “protects the privacy interests of employees and others associated with the company.” Similarly, the Fifth Amendment’s protection against government takings of property without just compensation “protects all those who have a stake in the corporations’ financial well-being." (Notably missing from this list, of course, are the free speech rights of corporations that the Court used to justify its controversial Citizens United ruling. The only mention of that case in the Hobby Lobby opinions is Justice Ginsburg’s approving quotation of Justice Stevens’ Citizens United dissent, in which he wrote that corporations “have no consciences, no beliefs, no feelings, no thoughts, no desires.”) For Justice Alito, the same reasoning that justifies allowing corporations to make Fourth and Fifth Amendment claims justifies allowing them to make free-exercise claims. For in making such claims, a corporation can provide protection for “the religious liberty of the humans who own and control those companies.”