, November 26, 2013
liberty is for people, not corporations
Obamacare has made its way back before the Supreme Court.
The high court
decided Tuesday to review two challenges by for-profit corporations
and their religious owners over comprehensive contraception coverage
required by the Affordable Care Act. And if the justices follow
more than 200 years of constitutional law and history on what
it means to enjoy the free exercise of religion in America, the
court should yet again hand a victory to the act.
It had little
choice but to agree to hear the cases this term.
legal reasoning, three federal circuit courts of appeals have
ruled that secular, for-profit business corporations and/or the
individuals who own them have a valid claim that the mandate to
provide no-cost, FDA-approved contraception in their employer-sponsored
health plan violates their asserted right to the free exercise
federal circuit courts of appeals have rejected these claims;
the Supreme Court frequently steps in to resolve such disagreements
among the federal courts of appeals.
Supreme Court reverses these radical decisions, the consequences
could reach far beyond the Affordable Care Act, making this particular
roadblock for Obamacare more problematic in the long term than
the well-publicized problems associated with the health exchange
the religious free-exercise claims, these three federal courts
have turned first principles of religious freedom, as well as
fundamental tenets of corporate law, on their head.
From the nation's
founding until today, the Constitution's protection of religious
liberty has been seen as a personal right, inextricably linked
to the human capacity to express devotion to a God and act on
the basis of reason and conscience.
quite properly, have never shared in this fundamental constitutional
tradition for the obvious reason that a business corporation lacks
the basic human capacities -- reason, dignity and conscience --
at the core of the right to free exercise of religion. Obviously
not "persons" in the usual sense of the word, these
corporations are also not religious organizations, which have
historically received some constitutional protection and are,
in fact, given exemptions from the contraception mandate.
do not hire employees on the basis of their religion and their
employees are not required to share the religious beliefs personally
held by the corporation's owners. In all of American history,
secular, for-profit corporations have never been understood to
"exercise" religion -- have you ever seen Exxon Mobil
in the pew next to you at church? -- and have never been protected
by the right to free exercise.
To be sure,
the devout individual business owners behind the corporations
in these challenges have their own personal rights to exercise
their religion, but those rights have nothing to do with Obamacare's
contraception coverage requirement. Why? Because federal law does
not require the individuals who own the company to personally
provide health care coverage or to satisfy any other legal obligation
of the corporation. The law places requirements only on the corporate
the corporations in these cases with their owners violates basic
principles of corporate law.
owners create a corporation as the means of carrying out their
business, they create a distinct legal entity with rights, obligations,
privileges and liabilities that are different from the individuals
who set up the corporation. This generally works to the benefit
of the individual owners, which is why people choose to incorporate
in the first place. And it means that certain rights specific
to individuals do not carry over to the corporate form.
the Supreme Court has held that an individual acting in his personal
capacity has the right to "plead the Fifth" and refuse
to turn over documents that could incriminate him, but that same
individual acting in his official capacity as a corporate owner
has no such right against self-incrimination. Like the right to
the free exercise of religion, the right against self-incrimination
has always been understood to be a personal right of freedom and
conscience that artificial corporate entities simply do not share.
owner simply does not have the right to move back and forth freely
between individual and corporate status to obtain all the advantages
and avoid any of the disadvantages of the respective forms.
have cheered the misfortunes Obamacare has suffered over the past
month or bemoaned them, the distortion of basic principles of
corporate law and free exercise jurisprudence by the three federal
courts that have endorsed the corporate challenges to the ACA's
contraception mandate should be troubling.
Court, as always, will have the final say.
If the justices
follow more than 200 years of constitutional law and history,
not to mention basic principles of corporate law, the court should
hand another victory to Obamacare.
I'm sure the
administration -- and more importantly, the women and their families
who risk losing important health benefits to which they are legally
entitled -- would welcome the win.
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