Ron Lindsay has a post zeroing in on the question of whether corporations, especially for-profit corporations, can be considered persons and thus subject to the protections of the Religious Freedom Restoration Act.

The threshold issue then is whether a for-profit corporation can claim a religious identity.

RFRA extends its protections to “persons.” Unfortunately, “persons” is not defined under RFRA, so one must rely on common sense and an understanding of the role of religion in a secular state in interpreting the scope of the statute. Also unfortunately, a majority of the Supreme Court appears to lack both common sense and an appropriate understanding of the distinct roles of religion and government in a secular state.

Huh. Even if “persons” is not defined under RFRA, wouldn’t it make more sense to assume it means what it seems to mean rather than something it doesn’t seem to mean? You’re a person, I’m a person, General Motors is not a person.

I’ve never understood this, not with Citizens United and not with Santa Clara County v. Southern Pacific Railroad Company. But we seem to be stuck with it whether we understand it or not.

Under our constitutional scheme, religion enjoys protections from government interference— and correlatively, our government enjoys protections from religious influence (in theory)— because religion deals with otherworldly concerns, whereas government deals with secular matters. In other words, government stays out of religious matters and religion stays out of government matters because government and religion are focused on different concerns. Government can’t tell religious individuals or groups how to save souls, and religious individuals or groups shouldn’t be able to tell the government how to protect the health of women.

Of course, a religious person is free to engage in secular activities, including commercial activities. And corporations controlled by religious persons can also engage in commercial activities. However, when they do, they submit themselves to the rules and regulations of the secular state. When a corporation engages in for-profit commercial activities, it ceases to be a religious association, that is, an association focused on otherworldly matters.

But Hobby Lobby of course wants to have both – the for-profit commercial activities and the religious exemptions. Which is cheating.

In closing, one tangential observation: one couldn’t help noticing that during the argument, it was the three female justices, Ginsburg, Kagan, and Sotomayor, who asked tough questions of Hobby Lobby’s attorney. One wonders if the male justices would have been more engaged in this portion of the argument if Hobby Lobby had objected to health care coverage for Viagra instead of contraceptive care.

Ah but you see Baby Jesus would never try to interfere with a gentleman’s access to Viagra.


  1. DrVanNostrand says

    “One wonders if the male justices would have been more engaged in this portion of the argument if Hobby Lobby had objected to health care coverage for Viagra instead of contraceptive care.”

    I don’t wonder at all. I have absolutely no doubt that they would’ve been more engaged.

  2. says

    The key is the distinction between “natural persons” and “legal persons.” All natural persons are also legal persons, but legal persons (which include artificial constructs such as corporations, government agencies, et al.) are not necessarily natural persons. Given that this is stuff from Introduction to Law 101, I find it odd that both Congress and the Supreme Courts have such a hard time making this distinction. It strikes me as obvious that individual liberties, such as those enumerated in the Bill of Rights, can only be possessed by natural persons. Insofar as a strictly legal “person” can possess such rights, it is as a function of the rights of its members. As Lindsay rightly points out, “the exercise of religion sometimes requires individuals to associate in groups and to formalize this association,” and I’d say this goes for other individual rights as well (speech, petitioning the government for redress of grievances, what have you). But as Lindsay also alludes, this applies to organizations, such as nonprofit corporations, that are explicitly established for the purpose of exercising that right; for-profit corporations do not meet this requirement.

  3. Shatterface says

    There is a general tendency to extend the legal concept of ‘personhood’ in all directions: to corporate entities like religions, businesses and communities, to embryos, to the great apes, and very soon to artificial intelligences.

  4. ajb47 says

    Ed Brayton posted a link to an article with some insight into how and why corporations are “persons” the other day. And why Hobby Lobby should be forced to honor the mandate.

  5. K. says

    Wait…if a company has the same rights as a natural person, then winding up a company must be considered murder… 🙂

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