Corporations, Religious Conscience, Citizens United, and Contraception

Friday night, a federal court in Missouri dismissed a case brought by O’Brien Industrial Holdings, a for-profit company which had sued the Department of Health and Human Services, charging the rule requiring employer-sponsored health insurance plans to cover contraception violated its religious freedom. The dismissal of this case won’t be the end of the line; it has already been appealed, and there are 30 cases in total around the country. Whether the contraception benefit rule violates the Religious Freedom Restoration Act and/or the First Amendment (along with the question of whether such claims can be made by for-profit companies like O’Brien, as opposed to non-profit religious institutions not exempt from the rule) will in all likelihood ultimately be decided by the Supreme Court.

Judge Carol E. Jackson dismissed O’Brien’s claims under the Religious Freedom Restoration Act, and the Free Exercise, Establishment, and Free Speech Clausees of the First Amendment. On the RFRA claim—one that conservative opponents of the HHS rule have portrayed as more or less open and shut—the judge ruled that the coverage requirement does not “substantially burden” (the relevant legal standard) O’Brien’s religious practice:

Frank O’Brien is not prevented from keeping the Sabbath, from providing a religious upbringing for his children, or from participating in a religious ritual such as communion. Instead, plaintiffs remain free to exercise their religion, by not using contraceptives and by discouraging employees from using contraceptives. The burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by OIH’s plan, subsidize someone else’s participation in an activity that is condemned by plaintiffs’ religion. This Court rejects the proposition that requiring indirect financial support of a practice, from which plaintiff himself abstains according to his religious principles, constitutes a substantial burden on plaintiff’s religious exercise.

RFRA is a shield, not a sword. It protects individuals from substantial burdens on religious exercise that occur when the government coerces action one’s religion forbids, or forbids action one’s religion requires; it is not a means to force one’s religious practices upon others. RFRA does not protect against the slight burden on religious exercise that arises when one’s money circuitously flows to support the conduct of other free-exercise-wielding individuals who hold religious beliefs that differ from one’s own.

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Under plaintiffs’ interpretation of RFRA, a law substantially burdens one’s religion whenever it requires an outlay of funds that might eventually be used by a third party in a manner inconsistent with one’s religious values. This is at most a de minimus burden on religious practice. The challenged regulations are several degrees removed from imposing a substantial burden on OIH, and one further degree removed from imposing a substantial burden on OIH’s owner and manager, Frank O’Brien.

In July, a federal court in Colorado reached a different result, holding that the coverage requirement did substantially burden a private company’s religious exercise and rejected the government’s argument that a private company cannot make a religious freedom claim. But Judge Jackson, because she already had held that coverage requirement did not substantially burden O’Brien’s religious exercise, did not decide the question of whether a corporation, or in O’Brien’s case, a limited liability company, can make such a claim.

That other question, though, will continue to be raised by opponents of the coverage requirement. O’Brien had argued that, post-Citizens United, a corporation should be considered a “person” under RFRA, thus capable of having a “substantial burden” placed on its religious exercise by government regulation or action. 

These are the two crucial legal issues at stake in cases brought by for-profit companies: is an attenuated “burden”—as opposed to an actual burden on one’s ability to exercise one’s religion—enough to claim a “substantial” burden under RFRA? And is a corporation a “person” and thus able to make that claim? I’ve actually heard both arguments made in serious academic settings. Republicans would like to see such a right extended to corporations, at least in the health care context—they’ve tried to legislate, through the failed Blunt Amendment, an exemption for any employer from covering any medical or pharmaceutical care or device based on religious objections. But think of the implications—or perhaps you’d rather not—if the Supreme Court were to rule that a corporation can object to complying with laws on religious conscience grounds. It could actually make corporations more like people than people are.

Sarah Posner, author of God’s Profits: Faith, Fraud, and the Republican Crusade for Values Voters, covers politics and religion. Her work has appeared in The Washington Post, The Guardian, The Atlantic, The American ProspectThe NationSalon, and other publications. Follow her on TwitterRSS feed Email