Is Arizona SB 1062 Constitutional?

One of the main issues raised by the potential passage of Arizona SB 1062 into law is whether corporations have right to freely exercise their religious beliefs.  It is an interesting concept because corporations are inanimate objects and currently it is unclear whether the First Amendment affords corporations a right to religious freedom.

Historically, the Bill of Rights have applied to people and not corporations.  It is because the traditional thought has been that individuals and corporations function differently.  Corporations cannot freely assemble under the First Amendment.  Corporations have to deal with cruel and unusual punishment in the Eighth Amendment.  Conversely, people can do things that corporations cannot.  As Shakespeare recognized, people are unique:

If you prick us, do we not bleed? If you tickle us, do we not laugh? If you poison us, do we not die? And if you wrong us, shall we not revenge?

— William Shakespeare, The Merchant of Venice, act 1, sc. 3.

However, the recent trend is for courts to recognize liberties for corporations that have been traditionally reserved only for people.  The best example of this is where the Supreme Court held the government cannot suppress political speech on the basis of the speaker’s corporate identity Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 365 (2010).  It appears that the court may be poised to extend religious liberties to corporations next.

Much of the language of Arizona Religious Freedom SB 1062 is very similar to the federal Religious Freedom Restoration Act (RFRA) 42 U.S.C. § 2000bb.  RFRA generally prohibits the government from substantially burdening a person’s exercise of religion.  The language of the federal legislation RFRA refers to a person.  However, as noted in Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1129 (10th Cir. 2013) cert. granted, 134 S. Ct. 678 (U.S. 2013), if the word person is not defined in the statute then the definition is used from 1 U.S.C. § 1.

[T]he word[ ] ‘person’ … include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.

Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1129 (10th Cir. 2013) cert. granted, 134 S. Ct. 678 (U.S. 2013) (quoting 1 U.S.C. § 1).

Do not ask me why Congress created this default definition of the word person.  The definition includes pretty much any type of person, group, business, association or corporation conceivable.  It does not make much sense to me, but that is the way it is.  Either way, the statute 1 U.S.C. § 1, is also an indication of the broadening of the word person.

The United States Supreme Court via Hobby Lobby Stores, Inc. v. Sebelius, 134 S. Ct. 678 (U.S. 2013) (cert. granted) may directly hold that corporations have rights to religious freedoms.  Hobby Lobby is a closely held corporation.  The Green family runs the arts and crafts store with religious principles: it is not open on Sundays; has a practice of allowing employees time for family and worship; and has a sizable amount of religious themed items for sale.   The Hobby Lobby/Greens sued the federal government because the Affordable Health Care Act (Obama Care) mandated that corporations must provide certain types of preventive health services, including contraceptives.  Hobby Lobby then sued claiming RFRA gave them the right to opt out of the Affordable Health Care Act because corporations have religious freedoms.

On appeal the court refused to look at the issue whether corporations have a right to religious freedom from the Free Exercise clause in the First Amendment.  Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1121 n.2 (10th Cir. 2013) cert. granted, 134 S. Ct. 678 (U.S. 2013).  The United States Supreme Court will have a chance to rule on this issue.

It is speculative what United States Supreme Court will address in the Hobby Lobby case, but if the Court does rule on whether corporations have a right to religious freedoms then it will provide legal cover for legislation like Arizona’s SB 1062.  Even though the bill and the court case have different catalysts, they are both touching upon the same issue: do corporations have a right to religious freedom?

Corporations do not bleed when pricked.  Corporations do not laugh when tickled.  Corporations do not die when poisoned (they cannot literally be poisoned). Corporations may seek revenge.  However, the point is that even after all the time has passed since Shakespeare lived, there is still a distinct difference between people and corporations.

However the line is starting to be blurred between people and corporations in the courts.

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s