If businesses can legally talk, they can pray too

Guest Column:
Noah Feldman
Do corporations have a right to religious liberty? The contraceptive mandate of the Affordable Care Act has made this abstract-sounding question into the hottest constitutional issue of the day -- hotter, even, than the right to privacy from government snooping. The U.S. Supreme Court has gotten into the game by agreeing to hear a case on the issue and, in the meantime, temporarily staying the law under a range of circumstances. The stage is now set for a battle that will end in the court’s second major Obamacare decision later this year. More

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OP-ED / LETTERS TO THE EDITOR

If businesses can legally talk, they can pray too

Guest Column:
Noah Feldman
Posted 1/13/14

Do corporations have a right to religious liberty? The contraceptive mandate of the Affordable Care Act has made this abstract-sounding question into the hottest constitutional issue of the day -- hotter, even, than the right to privacy from government snooping. The U.S. Supreme Court has gotten into the game by agreeing to hear a case on the issue and, in the meantime, temporarily staying the law under a range of circumstances. The stage is now set for a battle that will end in the court’s second major Obamacare decision later this year.

The legal issue is a bit complicated. The Affordable Care Act requires employers above a certain size to provide insurance that covers contraception. The law exempts religious organizations such as the Roman Catholic Church. It includes private employers such as Hobby Lobby, the retail arts and crafts chain whose challenge to the law the Supreme Court has already agreed to hear. In between are entities affiliated with religious organizations but not controlled by them, such as Catholic hospitals and universities. They don’t formally have to provide contraceptive coverage themselves: Instead, they tell their insurance company that they object on religious grounds, and the insurer then provides coverage “separately” but at no cost to the woman. It is this provision that Justice Sonia Sotomayor has blocked from going into effect pending its review by the appellate courts.

The two issues – private corporate employers and religiously affiliated organizations – pose slightly different questions. Start with corporations, which logically shouldn’t enjoy religious liberty rights any more than they enjoy free-speech rights. The Framers would have laughed at the Citizens United decision that gave corporations carte blanche to make campaign donations, because to them corporate bodies were artificial creatures designed to perform certain specified tasks, not emanations of the shareholders’ selfhood. James Madison and the other fathers of the First Amendment would have found it similarly absurd to say that corporations have a right to religious freedom.

The problem is that, since Citizens United, corporations do have free speech rights. Once they do, it follows that their rights should extend to the rest of the First Amendment.

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