The Pervasive Danger of "Corporate Speech"

Not long since Citizens United v. Federal Election Commission (2010), in which the Supreme Court both struck down Austin v. Michigan Chamber of Commerce (1990) and McConnell v. FEC (2003) and substantially rewrote the majority opinion in Buckley v. Valeo (1976) to equate corporations with individuals and money with speech, the Court has been presented with another opportunity to confer First Amendment rights to corporations. Presented with a new opportunity to expand its definition of “corporate speech,” the Court may inject corporations into new realms of the political discourse in which they are afforded constitutional rights.
On November 26, the Court agreed to hear two cases challenging the constitutionality of the contraception mandate stipulated by the Affordable Care Act, Sebelius v. Hobby Lobby and Conestoga Wood v. Sebelius. The contraception mandate requires employers to provide health insurance that includes access to contraceptives and preventative procedures for female employees. The exemption included in the mandate for Catholic corporations does not apply to either of the challenging parties. (Hobby Lobby Stores, Inc. and Mardel are a chain of Christian bookstores, owned and operated by a family of evangelical Christians; the Conestoga Wood Specialties Co. is run by a Mennonite family.) In both cases, the challenging parties to the Affordable Care Act assert that the contraception mandate conflicts with the 1993 federal law, the Religious Freedom Restoration Act.
The Religious Freedom Restoration Act, introduced by Representatives Howard McKeon (R-Calif.) and Dean Gallo (R-N.J.), sought to reinforce the “free exercise of religion” clause of the First Amendment by stating, “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”
The Act was passed in response to two Supreme Court rulings in Lyng v. Northwest Indian Cemetery Protective Association (1988) and Employment Division v. Smith (1990). Both cases involved conflict between the general enforcement of federal statutes and the practices of certain Native American tribes. In the former case, the Tolowa, Yurok, and Karok tribes attempted to prevent the confiscation of their territory for road construction by the U.S. Forest Service by asserting a First Amendment religious claim to the land. In the latter, the state of Oregon denied unemployment benefits to two Native American employees who had been fired after having tested positive for a certain drug, mescaline, that shares the same chemical compound as a type of cactus (like opium does with poppy seeds) commonly used in Native American religious practices. In both cases, the Court ruled that Congress, in ratifying a statute that was nationally and equally enforced, did not target certain religious groups. Moreover, religion in itself was neither sufficient for strict scrutiny of the federal statutes in question nor did it place an additional burden on Congress to present a compelling interest for infringing upon religious practices.
These two cases were a retreat from the Court ruling in Sherbert v. Verner (1962), which established the Sherbert Test, a rubric in judicial review to determine whether or not state or federal statutes imposed an unnecessary burden on the free exercise of religion. In Sherbert, Adeil Sherbert, a member of the Seventh-day Adventist Church, was fired for refusing to work on Saturday, the Adventist day of rest. The South Carolina Employment Commission denied to Ms. Sherbert unemployment benefits. The Court ruled that the state’s eligibility requirements for unemployment compensation restricted the right of the plaintiff, Adeil Sherbert, to engage in the free exercise of religion.
In 1993, in the aftermath of the Court decisions in Lyng v. Northwest Indian Cemetery Protective Association and Employment Division v. Smith, the House and Senate voted overwhelmingly to reinstate, so to speak, the Sherbert Test in political and legal practice. The Religious Freedom Restoration Act, which reasserted the Sherbert Test in its own provisions, was passed unanimously by the House and by a vote of 97 to 3 in the Senate.
Now, having chosen to hear these two cases, the Supreme Court has decided to answer the question of whether or not individuals and corporations have equal standing under the “free exercise of religion” clause of the First Amendment.
As a means of reinforcing its ruling in Citizens United, the Court, may have gleaned and articulated this constitutional question precisely for the purpose of asserting this unprecedented interpretation of corporate speech across the spectrum of legal and political activity. The ruling in Citizens United, as stipulated by the majority opinion itself, has no direct legal precedent; in fact, it overturns two rulings strongly in favor of campaign finance regulations. Not only perhaps to compensate for this fact, but also to make it more difficult to reverse Citizens United, the Court seeks to expand its definition of corporate speech through whatever opportunity that it can. If Sebelius v. Hobby Lobby and Conestoga Wood v. Sebelius are decided with the same line of reasoning as Citizens United, corporations may be able to subvert federal statutes under the guise of expressing a religious choice.
As more constitutional liberties expressly granted to individuals are also attributed to corporations, as corporations are made to resemble human beings in the eyes of the law, and as corporations are granted the same legal standing as individual citizens, the effects of Citizens United may pervade all aspects of political and civil life. While Citizens United may, at one point, be reversed either through judicial review or a constitutional amendment, the full force of its effects will remain long after it has gone.