At times, it can seem like the best way to get good treatment from the government is to be a corporation. Since corporations are people and have free speech thanks to the Citizens United decision, do they have any other rights normally afforded to human citizens? Depending on what the Supreme Court decides in coming months, corporations may have the right to decide their employees’ birth control choices.
On November 26, the Supreme Court agreed to hear two cases concerning the part of the Affordable Care Act that requires for-profit employers to cover contraceptives in their health care plans. The cases were brought by Hobby Lobby, a Christian-owned craft supply chain store, and Conestoga Wood Specialties, a furniture store owned by a Mennonite family. The majority shareholders of these companies argue that they view certain kinds of contraception as akin to an abortion, which they find morally objectionable to their religious beliefs. The companies sued the government, saying the Affordable Care Act violates the Constitution: the Constitution’s Free Exercise Clause bans the government from interfering with a person’s right to freely practice his or her own religious beliefs.
If the Supreme Court rules in the corporations’ favor, it would be nearly unprecedented. It would give bosses control over the healthcare decisions of their employees—an especially troubling thought when you notice that 94 percent of the CEOs of Fortune 100 companies are white (and 92 percent are men).
Providing corporations a right to free speech is troubling enough; unlike regular citizens, a corporation can be made up of hundreds of people all of whom might have different political ideas, so only the beliefs of a few will be reflected in the donations that a corporation signs its name to. For example, a Target shareholder may not wish to give money to a political candidate known for his homophobic views, but unless this shareholder has a controlling interest in Target or holds an influential board position, her desires will go unheeded as money in which she has a stake is used in a way she finds reprehensible. Her right to speech as part of the corporation is essentially worthless.
Letting corporations make healthcare decisions for all of its employees based on the religious beliefs of its bigwigs would be an even greater concentration of rights into the hands of a few. If we allow a for-profit corporation to “exercise” religious beliefs, we will be enshrining certain people’s religious beliefs as more important than others’. A ruling in favor of Hobby Lobby and Conestoga would indicate that the beliefs of the few people in charge of the two corporations are more important than the beliefs of their many employees, because it will place in the hands of the owners the right to impose their religious beliefs upon their employees.
The Planned Parenthood Action Fund made this graphic about the bosses who will be in charge of birth control benefits if the Supreme Court decision goes their way:
U.S. Solicitor General Donald Verilli put it best in his court documents when he argued that providing a right to free exercise to corporations would transform the right from a shield, meant to protect individuals, “into a sword used to deny employees of for-profit commercial enterprises the benefits and protections of generally applicable laws.”
And a decision in favor of corporate free exercise would have far-reaching consequences. If the Employment Non-Discrimination Act (ENDA) passes, will the notoriously homophobic Chick-Fil-A be able to request an exemption because ENDA infringes its free exercise right? Could a corporation come forward and argue that its owners are religiously opposed to Title IX? Or, to turn the tables a bit, could a for-profit corporation owned by Buddhists or Quakers request that their corporate taxes not be allocated to fund the military, as Buddhism and Quakerism mandate pacifism?
Assuming the Supreme Court rules in the corporations’ favor, I await the hand-wringing that will come from right-wingers when the first Muslim-run corporation tries to get an exemption for its religious beliefs. Far from being a great victory for “religious freedom,” a ruling for the corporations would further enshrine Christianity as the state religion and give power to those who would rely on religion to dictate how women should live their lives.
Andrew Daar is an attorney and comedy writer in Chicago. He also writes pop cultural analysis for the websites This Was Television and Sexy Feminist.