“Corporations, of course, cannot suffer. They are not sentient. They have no soul,” said Caroline Mala Corbin, a professor at the University of Miami School of Law. “Religious protection only makes sense when it applies to actual people.”
“Followers of kosher rules run catering companies,” attorneys for Conestoga Wood Specialties wrote. “Families that observe the Sabbath operate fast food restaurants and craft stores. And those who value sacred texts publish and distribute books. Whatever the legal status of their organizations, owners and operators do not check their beliefs at the door each Monday morning.”
Ironically, the Religious Freedom Restoration Act that conservatives might use to strike down the contraception mandate was a congressional reaction to a 1990 opinion by strictly conservative Justice Antonin Scalia. Scalia’s 1990 opinion reasoned that religious objectors are not exempt from a “neutral law of general applicability.”
Adding even more judicial spice, the conservative-dominated court that will decide this question is the same court that likened corporations to people in erasing limits on corporate campaign spending.
“Political speech does not lose First Amendment protection simply because its source is a corporation,” Justice Anthony Kennedy, often a swing vote, wrote in the court’s 2010 Citizens United case.
The potential consequences, moreover, reach beyond the 80-plus federal lawsuits that have been filed by colleges, charities and others challenging the contraception mandate.
The court’s eventual ruling, expected by the end of June, also could signal states about the future of legislation allowing businesses to deny services on religious grounds. A bill recently passed by the Arizona Legislature, but vetoed by Republican Gov. Jan Brewer, for instance, would have permitted businesses to cite religious beliefs in denying service to gay couples.
“The cases are unprecedented,” said Supreme Court practitioner Tom Goldstein, founder of the popular ScotusBlog website. “The justices are going to have very different takes on who should win and who should lose.”