As a brief filed by corporate law scholars explains, “[t]he first principle of corporate law is that for-profit corporations are entities that possess legal interests and a legal identity of their own — one separate and distinct from their shareholders.”...Something's missing there. A corporation is a separate entity, and there is a long history of corporate law to refer to, but the question is the coverage of a statute, the Religious Freedom Restoration Act, which says "Government shall not substantially burden a person’s exercise of religion." No one can argue that "person" doesn't include corporations, since actual churches and other religious organizations are unquestionably covered. So if corporations are covered, what is the basis for reading some corporations out of the statute? (Keep in mind that Congress had the power to except the Affordable Care Act from RFRA and did not.)
To be sure, the current owners of these companies have their own personal free exercise rights, but... [the Affordable Care Act] places requirements only on the corporate entities. The individual corporate owners retain their own rights under the First Amendment and RFRA, but those rights simply aren’t available when the claimed burden is placed on the corporation itself....
It seems to me that the issue is whether a particular corporation can be said to have religion. A church has religion. No one argues against that. The argument is that the Court should adopt a bright-line rule interpreting RFRA that says no for-profit corporation can possibly have a religion, no matter what the facts are.
But the facts about Hobby Lobby are pretty strong. Here's the brief (PDF) for Hobby Lobby (the upcoming Supreme Court case).
“The Greens have organized their businesses with express religious principles in mind.” Pet.App.8a. Hobby Lobby’s official statement of purpose commits the company to “[h]onoring the Lord in all we do by operating the company in a manner consistent with Biblical principles.” JA134-35. The Greens operate Hobby Lobby and Mardel through a management trust they created, of which each Green is a trustee. Pet.App.8a; JA129-30, 134. The Greens each signed a Statement of Faith and a Trustee Commitment obligating them to conduct the businesses according to their religious beliefs, to “honor God with all that has been entrusted” to them, and to “use the Green family assets to create, support, and leverage the efforts of Christian ministries.” JA134.Yo, lawyers, that URL is coming up "We're sorry, the page you requested was not found." [ADDED: The cut-and-pasted URL inserts a space, which I didn't notice, but a commenter did. Deleting that space gets you to the right place, here.] If you want to know what Hobby Lobby holiday ads look like, here are a whole bunch of them. Here's one — from Easter 2003 — that I chose to click on because the title, "All the tools," seemed to have potential in making a joke about lawyers. The text is comical — darkly comical — on its own: "Son, I need you to Build a Bridge, here are all the tools you will need. See you soon — Love, Dad." The tools provided are a hammer and 3 nails, the tools that will be used against the body of Jesus Christ in this bridge-building enterprise.
“[T]he Greens allow their faith to guide business decisions for both companies.” Pet.App.8a. All Hobby Lobby stores close on Sundays, at a cost of millions per year, to allow employees a day of rest. Each Christmas and Easter, Hobby Lobby buys hundreds of full-page newspaper ads inviting people to “know Jesus as Lord and Savior.” E.g., Easter 2013, Advertisement, http://www.hobbylobby.com/assets/ images/holiday_messages/messages/2013e.jpg.
Back to the brief:
Store music features Christian songs. Employees have cost-free access to chaplains, spiritual counseling, and religiously-themed financial courses. And company profits provide millions of dollars every year to ministries. Pet.App.8a; JA134-39. Mardel primarily sells Christian materials and describes itself as “a faith-based company dedicated to renewing minds and transforming lives through the products we sell and the ministries we support.” Pet.App.8a; JA137-38.Now, does that corporation have religion? Remember, the issue is whether it has religion that is protected from substantial burdens by the Religious Freedom Restoration Act, which could be repealed or amended by Congress, and from which Congress could have excepted the ACA.
Respondents also refrain from business activities forbidden by their religious beliefs. For example, to avoid promoting alcohol, Hobby Lobby does not sell shot glasses. Hobby Lobby once declined a liquor store’s offer to take over one of its building leases, costing it hundreds of thousands of dollars a year. Similarly, Hobby Lobby does not allow its trucks to “back-haul” beer and so loses substantial profits by refusing offers from distributors. Pet.App.8a; JA136.
The question to be answered is what does a particular statute mean now, not what religion really is and whether corporations really have it. Congress could amend RFRA whenever it acquires the political will to do so, and it could explicitly define "persons" within the meaning of that statute to exclude for-profit corporations. So the issue is whether the Supreme Court should do that political work for Congress.
Since I don't think Congress could gather the political will to put that exclusion into RFRA, I don't think the Supreme Court should interpret Congress's statute to mean what Congress would not be able to say directly. And I think Congress knew — if Congress has any brain capable of containing any thoughts — that it could put an exclusion from RFRA into the ACA, and that makes it even more apparent that the government in the Hobby Lobby case should not be able extract the for-profit-corporation exception from the Court.