The controlling shareholders of Hobby Lobby and two other corporate plaintiffs in Sebelius v. Hobby Lobby Stores Inc., argue their religious beliefs should be attributable to the corporations they own.
If pass through religious beliefs are recognized, these corporations would not have to comply with contraceptive requirements under the 2010 Patient Protection and Affordable Care Act.
Because of the plaintiffs' corporate nature, a victory for them would create an ironic and unintended consequence for individuals: forced religious disclosures.
The reality is that corporations can only "believe," if at all, what their owners believe. While Hobby Lobby is a privately owned corporation, its victory would likely extend to all corporations, including those publicly-owned.
Sorry, but I don't buy it. A friend just sent me the reply brief from Conestoga Wood (the other claimaint in the pending contraception mandate cases). It correctly explains that:
The government proposes a parade of corporate horribles, contentious proxy battles, and impending religious claims by publicly traded entities such as IBM or GE. Resp. Br. 30. Such concerns are unrealistic. Large corporations are already faced with choices over whether to pursue social justice, civil rights, and environmental concerns, and with disputes over the interests of majority shareholders, proxy questions, and the like. Corporate law has extensive mechanisms in place for dealing with these scenarios.5 Religion as one motive among many does not change the landscape.
In fact, religion is already part of that landscape, since state law allows corporations to pursue it among all lawful purposes. There are no practical or theoretical grounds for specifically excluding religion as a permissible basis for corporate decision- making—indeed, it would be a clear violation of the First Amendment to even try. See Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 877 (1990) (noting that the government cannot ban “acts or abstentions only when they are engaged in for religious reasons”). Yet businesses infrequently choose to pursue religious ends.
As a practical matter, it is hard to demonstrate any interest shown by large, publicly-traded corporations in exercising religion. Market forces tend to push such firms far away from religious controversy. It is no accident that this case and related litigation involve corporations that are closely held. See Pet. App. 1l–4l. Religion is most able to be both exercised and factually demonstrated in a closely-held company with religious owners who possess a unity of ownership and control over corporate decisions and motives.
5 See Stephen M. Bainbridge, A Critique of the Corporate Law Professors’ Amicus Brief in Hobby Lobby and Conestoga Wood, 17–24, UCLA School of Law, Law-Econ Research Paper No. 14- 03 (Feb. 21, 2014) available at http://ssrn.com/abstract =2399638 (last visited Mar. 9, 2014).
Actually, the current version of my article has just been published by the Virginia Law Review Online, but the broader point remains true. This issue is a problem of close corporations. Hence, just as we did with the government's parade of horribles, we can safely refrain from worrying about those offered by Tucker.