Thus far, courts have avoided the issue of a corporation’s religious rights, Friedman says. In some cases, judges have ruled that plaintiffs have not demonstrated “substantial burden,” simply because it’s easier than weighing in on the First Amendment and RFRA rights of companies, he said.
If one or more of the cases against the employer contraceptive mandate is successfully appealed to the U.S. Supreme Court, justices will face a tricky set of intertwined issues: whether or not a corporation can practice religion; whether or not a corporation has the same religious freedom as its owners; and whether or not being required to cover contraceptives violates a corporation’s””or its owners’””religious freedom.
“It’s one of the most difficult legal questions I’ve seen, in terms of all the issues that are intertwined,” said Friedman, who runs the Religion Clause blog and wrote about the issue last month. “There really haven’t been any [courts] that have said corporations themselves have religious rights. They’ve either avoided the issue [by finding no substantial burden] or said the corporation can assert the owners’ rights.”
In the Citizens United campaign finance case, the Supremes ruled along the lines that corporations (and unions, a fact forgotten in all the hysteria) have First Amendment speech rights. It is plausible to suggest that if that is the case, corporations also have other First Amendment rights as well when it comes to the free exercise of religion.