Under the Patient Protection and Affordable Care Act, most employers must provide their employees with health insurance that covers all FDA-approved contraceptive methods and sterilization procedures (the “HHS mandate”). Across the country, individuals, religious schools, and corporations have sued to enjoin the mandate, arguing, among other things, that it violates the Free Exercise Clause of the First Amendment and the Religious Freedom Restoration Act (“RFRA”). These cases require the federal courts to sort out the complex relationship between the Free Exercise Clause and laws that are alleged to be neutral and generally applicable, such as the HHS mandate. But they also raise a novel threshold question: whether corporations can exercise religion under the First Amendment and RFRA. As several federal courts have noted, whether secular corporations can exercise religion is an open question. To date, this question has confounded the courts, resulting in a split between the Third, Sixth, Seventh, Tenth, and D.C. Circuits as well as the numerous district courts that have ruled on challenges to the HHS mandate. The Supreme Court recently granted certiorari in two of these cases, Hobby Lobby (Tenth Circuit) and Conestoga Wood Specialties (Third Circuit). This Article analyzes this novel and unresolved issue, arguing that the Supreme Court should follow its reasoning in Bellotti and Citizens United and hold that, just as corporations can engage in free speech, for-profit corporations can exercise religion under the Free Exercise Clause and RFRA.
Although never having addressed this specific issue, I argue that the Supreme Court has established rules for determining whether corporations can invoke particular constitutional rights and that, under these rules, corporations can invoke the protection of the Free Exercise Clause. The Third and Sixth Circuits, along with several district courts have reached the opposite conclusion, while several others have avoided the issue altogether. Relying primarily on a single footnote in Bellotti, the courts denying free exercise protection to for-profit corporations maintain that the free exercise of religion is a “purely personal” right that is limited to individuals and religious non-profit organizations. This Article contends, however, that a more detailed review of Bellotti, Citizens United, and the Court’s other decisions regarding the constitutional rights of corporations reveals that free exercise, like the freedom of speech, is not a “purely personal” right. Consequently, corporations—whether for-profit or non-profit—can claim its protection. Moreover, in the wake of Bellotti and Citizens United, neither the “profit motive” of a for-profit corporation nor the “religious nature” of religious organizations (e.g., churches) justifies limiting the Free Exercise Clause only to individuals and non-profit religious organizations. Although many (perhaps most) corporations may choose not to engage in religious activities, there is no constitutional basis for precluding a priori all for-profit businesses from raising free exercise claims.