Corporate Religious Freedom Means Freedom to Discriminate

Reports from the Supreme Court, where the Hobby Lobby case was argued on Tuesday, suggest that a majority of the judges appear sympathetic to the idea that corporations are not just people, but people with religious liberty. “The court seemed ready to accept that at least some for-profit corporations may advance claims based on religious freedom,” Adam Liptak wrote in The New York Times. Granted, it’s easy to read too much into the judges’ questions, and no one knows how the case will ultimately be decided. Still, it seems possible that logic of the Citizens United case – that corporate “persons” have the same first amendment rights to political speech as individuals – is about to be expanded, with frightening implications that go far beyond birth control.

After all, if corporations enjoy the free exercise of religion, all sorts of civil rights protections will be endangered. Nationwide, businesses have claimed that religious liberty grants them the right to discriminate against gay customers. Some religious sects object to placing women in positions of authority over men – if corporations have religious liberty, would such beliefs allow them to deny women promotions? Would companies owned by devotees of one faith be permitted to discriminate against job seekers of of another? According to a brief filed by Solicitor General Donald Verrilli, who is arguing the Hobby Lobby case for the administration, that’s a live possibility. “Respondents’ approach would even allow a for-profit corporation to discriminate in employment, such as by refusing to hire a devout member of a religion other than that of the corporation’s owner,” he wrote.

A new paper by University of Michigan Law School professor Sam Bagenstos on the creeping threat to Title II of the 1964 Civil Rights Act explains some of the danger here. Bagenstos highlights the Supreme Court’s 2001 decision in Boy Scouts of America v. Dale, which exempted the Boy Scouts from a state law banning anti-gay discrimination in public accommodations. The court, wrote Bagenstos, “held that application of that law to bar the Scouts from excluding an openly gay Assistant Scoutmaster from membership violated their First Amendment rights of expressive association.” Commentators, he wrote, minimized that decision as applying only to non-profit “expressive associations,” not for-profit businesses. But Bagenstos argues that that distinction has always been unstable, and that the plaintiffs’ theory in the Hobby Lobby case would collapse it.

“[O]ne potential implication of the challenges to the contraception mandate is the further erosion of the already flimsy commercial/expressive distinction,” he writes. “A crucial premise of the challenges is that secular, for-profit corporations can be a vehicle for the religious exercise of their shareholders and that regulation of those corporations can violate rights to free exercise of religion.”