Make Way for Corporations at the Pews

Corporations and the Freedom to Express Religious Beliefs 

Anybody enjoy In-N-Out Burger? If you look at the bottom of an In-N-Out wrapper or drink cup, you’ll find a reference to a Biblical verse, with the name of a book and a chapter number.

Does In-N-Out have the constitutional right to put such references on the bottom of their cups? That’s somewhat of a trick question, since constitutional law only applies to government action, not private action. The real question is whether government can pass a law restricting In-N-Out’s ability to do so. There are actually two possible answers. First, the owners of the company, the Snyder Family, have the right to express religion. The second, and more relevant answer, is that In-N-Out itself has the right to freely express religion.

The distinction between owner and corporation is an important one. If In-N-Out has the right to freely express religious beliefs, then for-profit corporations have the right to express religious beliefs. Why is this important? For starters, it is the quickest way out of Obamacare’s contraceptive mandate. I’m not saying In-N-Out plans to deny its employees birth control, but other companies owned or controlled by religious Presidents or CEOs are currently pressing this exact issue in the courts.

Should Corporations Have Religious Rights?

The circuit courts are divided on the idea that corporations have religious rights, which means one of the cases is a shoe-in for Supreme Court review. The 10th Circuit endorsed corporate rights to religion, but limited the idea to “closely held family businesses” like Hobby Lobby Stores Inc. The limitation was a result of the difficulty in determining whether a corporation actually believed the religious views it was expressing. The circuit court panel could see no distinction between incorporated businesses and unincorporated businesses owned by individuals, at least with regards to free speech. From this jumping point, corporations, at least ones like Hobby Lobby, could also express religious beliefs.

The 10th Circuit might be confident it can confine the monster it has created to family held businesses, but the distinction between family held corporations and publicly owned corporations is a thin one. Family members have disagreements all the time. Disagreements between family are often more bitter than disagreements with people outside the family. It is just as difficult to determine whether each family member owning the corporation holds the same sincerely held religious belief as it is to determine whether each stockholder has the same sincerely held religious beliefs.

If corporations have religious rights, Obamacare will be the first, but not the last religious exemption granted. Tax breaks meant for churches might be used by corporations. Employment discrimination laws could be more easily bypassed. Most importantly, this opens the door to corporations obtaining other fundamental rights, such as the right to vote. Let’s just hope the courts don’t recognize a corporate Second Amendment right to bear arms.