Wendy Mariner Argues Hobby Lobby Case Expands Corporate Personhood at Expense of Women.

In a stinging two-part analysis of the Supreme Court’s Hobby Lobby decision, SPH Health Law Professor Wendy Mariner takes issue with the court’s continuing “legal fiction” of extending the benefits of personhood to corporations.

Writing for the Health Law Professor Blog, Mariner contends that the court’s majority opinion, ruling that for-profit corporations can claim a religious exemption from federal laws that conflict with the personal religious beliefs of people who own the corporation, actually misreads the intent of Congress by expanding the Religious Freedom Restoration Act’s definition of persons to include corporations.

“First, the text of RFRA does not define “person” at all. All RFRA says is: “Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person – (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” (Italics mine.) The majority ignores the “legal fiction” that a corporation is separate from its owners and adopts its own fiction that corporations can “exercise” the religion of their owners,” Mariner wrote.

Future interpretations of the ruling may roll back other rights of employees in deference to religious freedom claims by owners.

In the second part of the analysis, Mariner challenges the court’s deliberately unscientific take on what actually constitutes a substantial burden, and who is able to make that determination.

Hobby Lobby claimed federal rules requiring it to offer insurance plans to its employees that included contraceptive coverage directly conflicted with the religious beliefs of the company’s owners.

“By allowing the corporations and their owners to determine what counts as a substantial burden on their ‘exercise of religion,’ the five Justices in the majority appear to have removed that question from judicial review,” Mariner wrote. This has serious implications for future claims that RFRA excuses corporations from complying with neutral and generally applicable federal laws.”

If the courts continue to allow corporations to avoid compliance with laws by claiming a substantial burden, Mariner wrote, “It will be difficult to enforce the law fairly and uniformly. Employees – especially women – will be deprived of government protection.”