Skepticism About the Third Circuit’s Rejection of Organizational Free Exercise Claims

The Third Circuit today split with the en banc Tenth Circuit (and less directly, some other courts) in rejecting a Free Exercise and RFRA challenge to the contraceptive coverage mandate. The majority decided that a closely-held, secular, for-profit corporation cannot assert Free Exercise or RFRA rights at all, and also that its members cannot assert any claims that their own free exercise has been burdened by the treatment of the corporation.

But the majority’s reasoning is pretty strange. First, the majority says (quoting another court):

General business corporations do not, separate and apart from the actions or belief systems of their individual owners or employees, exercise religion. They do not pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors.

The majority also endorses other arguments “questioning whether a corporation can ‘believe’ at all,” and adding that “corporations have no consciences, no beliefs, no feelings, no thoughts, no desires.” But those arguments would all prove too much, because they are technically true of any organizational association, including … a church!

Recognizing this, the majority then pivots:

Appellants, as well as the dissent, cite to cases in which courts have ruled in favor of free exercise claims advanced by religious organizations. See, e.g., Gonzalez v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418 (2006); Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993). None of the cases relied on by the dissent involve secular, for-profit corporations. We will not draw the conclusion that, just because courts have recognized the free exercise rights of churches and other religious entities, it necessarily follows that for-profit, secular corporations can exercise religion. As the Supreme Court recently noted, the “text of the First Amendment . . . gives special solicitude to the rights of religious organizations.” Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 706 (2012). That churches—as means by which individuals practice religion—have long enjoyed the protections of the Free Exercise Clause is not determinative of the question of whether for-profit, secular corporations should be granted these same protections.

But what the majority says here about churches cuts against everything it has just said about corporations not having “beliefs” or “religiously-motivated actions separate and apart” from their members– churches don’t do those things either, in a technical sense. So while one can certainly say that religious organizations are special, the (necessary) recognition that religious corporations have Free Exercise rights destroys the reasoning that the court had previously given for saying corporations don’t have rights. (The opinion later returns to the theme, suggesting that accepting the benefits of separate legal personhood and limited liability means giving up one’s free exercise rights, but again . . . churches.)

Alternatively, if one wants to use these terms in a slightly more figurative manner, and say that churches — qua organizations, not just qua members — really do “believe” things or have “separate” “religiously-motivated actions,” then the same thing could well be true of other organizations. Unless one simply says by fiat that they can’t.

There are plenty of references to Citizens United in the majority opinion, and I do think there is an apt analogy there. As Michael McConnell has recently written, the simplest way to understand why Citizens United is right is this: Everybody agrees that the New York Times has free speech rights (remember New York Times v. Sullivan and New York Times v. United States). But the New York Times is a corporation. And while you can make ad hoc assertions about why the New York Times is a special kind of corporation, none of the arguments really hold up to historical or logical scrutiny.

It seems to me the same thing is true here. It may well be that it is rare for a non-church to have an organizational free exercise claim; and it is even conceivable to me that it would be fair to be a little more careful when scrutinizing such claims for sincerity. But the argument that non-church organizations can’t make free exercise claims, either on their own or through their members, strikes me as underdeveloped — at the very best.