Supremes may rule if corporations the kind of 'person' the law protects

The statement at issue:

"The First Amendment logic of Citizens United v. Federal Election Commission, where the Supreme Court has recognized a First Amendment right of for-profit corporations to express themselves for political purposes, applies [here].  We see no reason the Supreme Court would recognize constitutional protection for a corporation's political expression but not for its religious expression."

 – A comment made by the Tenth U.S. Circuit Court of Appeals, in a decision that the Supreme Court agreed on Tuesday to review on the constitutionality of the new federal health care law's mandate that employers provide health insurance coverage for pregnancy-related services for their female employees.  That case involves the Oklahoma-based arts and crafts chain, Hobby Lobby Stores.

"[The company and its owners] argue that Citizens United 'is applicable to the Free Exercise Clause because the authors of the First Amendment only separated the Free Exercise Clause and the Free Speech Clause by a semi-colon, thus showing the continuation of intent between the two.'   We are not persuaded that the use of a semi-colon means that each clause of the First Amendment must be interpreted jointly.  In fact, historically, each clause has been interpreted separately."

 – A comment by the Third U.S. Circuit Court of Appeals, in the second decision that the Supreme Court agreed on Tuesday to review regarding the health care law.  That case involves a Pennsylvania manufacturer of wood cabinets, Conestoga Wood Specialties Corp.

From time to time in American constitutional history, corporations have gained rights as they moved closer to the status of "personhood."  That movement has always been surrounded by controversy, but never more than three years ago, when the Supreme Court decided the now-famous Citizens United case, giving corporations a much broader First Amendment right to express themselves through the money they spend on campaigns for Congress and the Presidency.

The Court is now poised to decide whether corporations also have a First Amendment right to exercise the freedom of religion, which can be thought of as another form of expression – that is, voicing or acting out one's personal beliefs.  It may be too early to say so, but a decision by the Justices recognizing such a corporate right may make the controversy over the Citizens United ruling pale by comparison. Americans love to debate religious topics, and they surely would be ready to do so over business corporations being treated as devout civic entities.

It was something of a surprise, then, that the Supreme Court would voluntarily step into this new corporate rights controversy when, on Tuesday, it accepted two cases on the new Affordable Care Act's so-called "contraceptive mandate."  That is a provision in the 2010 Act that requires employers to provide health insurance coverage for some 20 different pregnancy-related services, including birth control and sterilization.

Across the nation, scores of profit-making business firms that are owned by religiously devout families or close relatives who object to various forms of birth control have been suing to block this ACA mandate. That still-spreading challenge has always been both about a constitutional claim that corporations themselves are protected from having to obey that mandate, and about a claim that they are similarly protected from it by a 1993 law, the Religious Freedom Restoration Act.

When those cases began reaching the Supreme Court, it seemed highly likely that the Justices would step in to decide the claim under the 1993 law, but unlikely that they would also take on the First Amendment free exercise claim. The lower courts that had been reviewing the mandate were in conflict over the 1993 law question, but they were not split on the constitutional issue. Usually, the absence of a split on a question means that the Supreme Court won't feel a need to get involved to sort it out.

In fact, the Obama Administration strongly urged the court not to take on the First Amendment question, saying that the challenging corporations and their owners could not get any benefit from that beyond what they might be able, if they won, to obtain under the Religious Freedom Restoration Act. And besides, government lawyers contended, there is no way the corporations could win on the First Amendment issue.

Silently refusing to take that advice, the court simply added to its review docket the Conestoga Wood case – an appeal by that company's owners, along with the Hobby Lobby appeal that the government had taken to the court.   The Conestoga Wood case directly raises the constitutional issue, and argues that the Supreme Court's decision in the free speech case, Citizens United, pointed the way toward a religious freedom right for corporations. It is, of course, relying on a much more elaborate constitutional argument than the textual claim that the two freedoms co-exist merely because they are separated by only a semi-colon in the First Amendment.

If the Supreme Court were to uphold the challengers' claim under the 1993 law, it probably would never reach the constitutional issue. But the Court might rule against them narrowly on the scope of the 1993 law, simply finding that Congress did not intend to include corporations as the kind of "person" that the law protects. Then the First Amendment issue could be back, front and center.

The cases are likely to be argued before the court in March, with a final decision before the court recesses for the summer.  By coincidence only, the court's decision on this case – another major case on the Affordable Care Act – could put that federal law even further into the midst of political debate in the 2014 election campaign.

Lyle Denniston is the National Constitution Center's adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court's work.