Internet Scofflaw

Reuters reports:

White House will consider whether president can act on his own to mitigate effect of Supreme Court contraception ruling

The Supreme Court has ruled 5-4 in favor of Hobby Lobby (and two other companies), ordering that HHS cannot force their owners to violate their religious beliefs and pay for abortifacients. The opinion is here.

The key argument made by the administration in defense of its policy is that the Religious Freedom Restoration Act doesn’t apply to companies (even closely held companies), because corporations aren’t real people and can’t exercise religion. This is the same argument that they use to attack the free-speech rights of companies.

The Supreme Court majority, in the Citizens United case, rebutted this, pointing out that corporations are simply groups of people who choose to organize their efforts using a certain legal mechanism. It’s those people whose rights were implicated in Citizens United, and in Hobby Lobby. The Supreme Court reiterates their argument here:

As we will show, Congress provided protection for people like the Hahns and Greens by employing a familiar legal fiction: It included corporations within RFRA’s definition of “persons.” But it is important to keep in mind 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. For example, extending Fourth Amendment protection to corporations protects the privacy interests of employees and others associated with the company. Protecting corporations from government seizure of their property without just compensation protects all those who have a stake in the corporations’ financial well-being. And protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies.

In holding that Conestoga, as a “secular, for-profit corporation,” lacks RFRA protection, the Third Circuit wrote as follows:

“General business corporations do not, separate and apart from the actions or belief systems of their individual owners or employees, exercise religion. They do not pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors.” 724 F. 3d, at 385 (emphasis added).

All of this is true—but quite beside the point. Corporations, “separate and apart from” the human beings who own, run, and are employed by them, cannot do anything at all.

The left railed against Citizens United for “making corporations into people,” and will doubtless do so here as well. But a moment’s consideration shows that exactly the opposite is true. Treating corporations as people is a “legal fiction” that serves to protect the rights of actual human beings. In contrast, the left believes that corporations really are actual entities (they would probably avoid using the word “people”), but ones without any rights:

HHS argues that the companies cannot sue because they are for-profit corporations, and that the owners cannot sue because the regulations apply only to the companies. . .

ASIDE: The dissent, apparently recognizing that terminating all civil rights for corporations might be bad, claim to limit the application of their principle to for-profit companies. The justify their entirely new carve-out by some sophistry (for-profit corporations, they claim, have no purpose whatsoever other than to turn a profit), but it’s hard to believe they are really in earnest. Their new rule against for-profit corporations wouldn’t last long once a for-profit corporation they like (say, the New York Times) was in the dock.

But, to make it crystal clear where they stand, the dissent also explains that, even if the rights of real human beings were implicated, the government would be free to trample those rights:

Accommodations to religious beliefs or observances, the Court has clarified, must not significantly impinge on the interests of third parties.

The exemption sought by Hobby Lobby and Conestoga would override significant interests of the corporations’ employees and covered dependents. It would deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage that the ACA would otherwise secure.

This argument, which the dissent adopts from HHS, claims that accommodating Hobby Lobby’s owners’ religion would impinge on the interests of third parties. That’s true, in a sense. Yes, it would impinge on third-party interests that they HHS’s own policy created! If this were to stand, it would provide a blueprint for neutering any religious freedom claim: simply create a third-party interest against the religious practice, and then observe that accommodating religious would make it go away again.

This did not escape the notice of the majority, who observed:

In a related argument, HHS appears to maintain that a plaintiff cannot prevail on a RFRA claim that seeks an exemption from a legal obligation requiring the plaintiff to confer benefits on third parties. Nothing in the text of RFRA or its basic purposes supports giving the Government an entirely free hand to impose burdens on religious exercise so long as those burdens confer a benefit on other individuals.

To summarize, the left’s position now is that (1) corporations are people exactly enough to stand clear of their owner’s right, but not enough to have rights of their own, and (2) the government can burden religion, so long as in so doing it creates some third-party who benefits from the burden.

UPDATE: An interesting analysis from Mark Rienzi. It includes this observation:

It was well-established that corporations could exercise religion, and that profit-making ventures could also exercise religion. And as the Court pointed out today, the various opinions in Gallagher v. Crown Kosher Markets made it hard to conclude that putting the two together eliminated the ability to engage in religious exercise in the sense of the First Amendment and RFRA. But Hobby Lobby now establishes the point beyond any doubt.

Put that way, it sounds pretty obvious. Unless your school of jurisprudence is entirely ends-directed.

UPDATE: A lot of people on the left are attacking Hobby Lobby (the company), rather than Hobby Lobby (the legal opinion). I think those people are missing the point; what’s important here is the law as it pertains to religious freedom, not Hobby Lobby’s particular choices. But, for what it’s worth, this article addresses every attack against Hobby Lobby I’ve seen, as well as reiterate some of the key legal points.