Sebelius v. Hobby Lobby Stores, Part II: Justiciability of Corporate Claims

A description of the Ordinary Court project may be read here. Part I of the opinion may be read here.

Likko, C.J. delivered the opinion of the Ordinary Court as to this Part II.

A matter of some political debate in recent years has been the question of whether corporations are “people.” The notion of corporate personhood is, of course, a legal fiction, which establishes that a corporation (or some other sort of business entity) holds an identity separate from that of its owners and from those natural persons who control and direct its affairs. Samantar v. Yousuf, 560 U.S. 305, 315.

For most purposes, corporate personhood vests in the entity the same rights and abilities that a natural person enjoys to do three things: to own property, to enter into contracts, and to appear as a litigant in judicial or quasi-judicial proceedings. The legal fiction of corporate personhood does not vest in the entity other rights and abilities enjoyed by natural persons, such as the right to vote in elections or the right to be married to another person. Unlike natural persons, they do not have a right against self-incrimination. Bellis v. U.S., 417 U.S. 85, 89-90 (1988).

Thus, there are certain activities for which corporate personhood is not the same thing as personhood. Corporations are are also not logically capable of engaging in certain activities which natural people are typically capable of, such as sexual procreation or the experience of emotions.

The threshold issue upon which the District Court based its decision, and upon which the Tenth Circuit reversed, is whether one of the attributes of corporate personhood includes the right to exercise religion. Hobby Lobby goes to some pains in its brief to trace a legal history of corporate religious activity, and there is no doubt that a corporation can indeed engage in a diverse range of activities which do promote religion. The Government does not contend to the contrary, nor is there any contention before the Court other than that Hobby Lobby’s various cited charitable and business activities are motivated by a sincere desire to promote and advance the religion of Christianity.

The question before the Court, however, is whether a corporation itself possesses (or at least can possess) a religious belief to exercise. It does not. “Religious belief” is not an attribute of personhood associated with the legal fiction of corporate personhood either by law or common understanding. No one and nothing but an actual human being is capable of possessing religious belief; a corporation is no more capable of holding a religious belief than is an inanimate object such as a couch.[1]

Based upon this, I would hold that the District Court’s original ruling with respect to Hobby Lobby was correct: Hobby Lobby is existentially incapable of having a religious belief, notwithstanding its claim that it does. It is therefore irrelevant whether Hobby Lobby is a “person” for purposes of the RFRA. Even if, arguendo, Hobby Lobby is a “person” for purposes of that law, it is not a person who is able to articulate sincerely-held religious beliefs. It therefore cannot state a claim under RFRA, or the Administrative Procedure Act bootstrapped upon the RFRA, or directly under the Free Exercise Clause under even the most generous reading, to have stated a claim upon which relief can be granted. Having failed to have stated a claim upon which relief can be granted, its claims are not further justiciable. Warth v. Seldin, 422 U.S. 490, 498-499 (1975).

Likko, C.J., was joined in this part II of the opinion of the Ordinary Court by Thompson, J., Togut, J., and Dave, J..

Through my inadvertent clerical error, an early draft of Justice Kowal’s dissent was included below. His revised and more complete opinion may, and should, be read here.

Kowal, J., dissenting:

The United States Government suggests that by adopting the corporate form, the Greens waived their rights of conscience. The Government betrays a deep misunderstanding of its subject. Conscience insists on rights, which our Constitution affords. Those rights are not guaranteed for any low purpose as to do merely as we please. Conscience connects us with the divine as each finds it. And through that connection, it imposes duties. What is commonly called the “right” of conscience, then, is merely the space to discharge those duties. Because those duties are undeniable, the corresponding rights are unalienable. As James Madison said in his Memorial and Remonstrance Against Religious Assessments, the right of conscience “is unalienable…because what is here a right towards men, is a duty towards the Creator.”

Monument to John Leland. Credit to Smith Creek Baptist Church.

The facile approach to this case that focuses narrowly on whether a corporation can exercise religion misses the entire point of the Free Exercise clause and the right to conscience. Of course it is the Greens, not Hobby Lobby, who believe they must one day give account before St. Peter. The corporate entity is merely the space in which the Greens discharge their duties of conscience, investing themselves in creating a successful, wholesome, and faith-guided economic enterprise, providing good jobs to thousands of employees. The corporation, a fiction that exists only in the law, has no duty of conscience. That duty resides in the hearts and minds of the Greens. The Greens must have the right, whether individually or through the corporate fiction if legal technicality insists, to enforce that right and preserve the space to obey their conscience.

The Greens’ unanimous and scrupulous discharge of their duties of conscience resolves any concern over gaining exemption via charade from generally applicable laws or, in this case, largely provisionary administrative regulations. Their company’s official statement of purpose testifies to their duties of conscience, as do their Statement of Faith and Trustee Commitment. The Greens’ conscience reaches to inventory, merchandising, and shipping practices, such as their decision not to sell shot glasses or backhaul alcoholic beverages. Their conscience also compels them to give their employees a day of rest by closing their more than 500 stores on Sundays, costing millions per year. What parade of horribles arises from allowing the Greens the freedom to exercise their conscience? Counterfactuals based on a happy state of affairs in which the Greens are typical corporate owner-operators can only support the Greens. Our society benefits from protecting the constitutional right to conscience.

The Government would deny the Greens’ right to discharge any of these duties since they elected to conduct their business in the form of a for-profit corporation. Despite the unequivocal acknowledgement by the Father of our Constitution that the right to conscience is unalienable, the Government now takes the position the Greens lost the right in exchange for “limited liability” of the corporate form. Never mind that Blackstone listed “advancement of religion” first on the list of purposes corporations may pursue. Or that the Pilgrims who formed the for-profit Massachusetts Bay Company declared in their Company Charter the spread of the “Christian Fayth” among their venture’s express purposes. Or that the Catholic Church operates numerous hospitals under the corporate form.

Conscience has rights because it has duties. The law is powerless to limit the liability conscience imposes on the Greens. Its proper place is to “make no law…prohibiting the free exercise [of religion],” so that the Greens, and all of us, may work out their own salvation in fear and trembling.

Burt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.