As Marc O. DeGirolami notes here: "In an extensive
decision, a divided panel of the U.S. Court of Appeals for the Seventh Circuit
has enjoined the enforcement of the HHS contraception mandate against several
for-profit corporations as well as the individual owners of those corporations.” I have not had a chance to read the entire
decision (which you can find here), but I did do a quick search for “corporation” and pass on the
following excerpts I found interesting.
The plaintiffs are two Catholic families and their closely
held corporations—one a construction company in Illinois and the other a
manufacturing firm in Indiana. The businesses are secular and for profit, but
they operate in conformity with the faith commitments of the families that own
and manage them…. These cases—two among many currently pending in courts around
the country—raise important questions about whether business owners and their
closely held corporations may assert a religious objection to the contraception
mandate and whether forcing them to provide this coverage substantially burdens
their religious-exercise rights. We hold that the plaintiffs—the business
owners and their companies—may challenge the mandate. We further hold that
compelling them to cover these services substantially burdens their religious
exercise rights…. Nothing in RFRA [the Religious Freedom Restoration Act]
suggests that the Dictionary Act’s definition of “person” is a “poor fit” with
the statutory scheme. To use the Supreme Court’s colloquialism, including
corporations in the universe of “persons” with rights under RFRA is not like
“forcing a square peg into a round hole.” [Rowland, 506 US 194, 200 (1993).] A
corporation is just a special form of organizational association. No one doubts
that organizational associations can engage in religious practice…. It’s common
ground that nonprofit religious corporations exercise religion in the sense
that their activities are religiously motivated. So unless there is something
disabling about mixing profit-seeking and religious practice, it follows that a
faith-based, for-profit corporation can claim free-exercise protection to the
extent that an aspect of its conduct is religiously motivated.
The quote I focus on above is: “A corporation is just a
special form of organizational association.”
I have argued previously that when courts render decisions like the
Seventh Circuit did here, they seem to be giving mere lip service to the word “special”
in that sentence. For more on that, you
can go here.
UPDATE: Josh Blackman notes how many religion-clause scholars are cited in the opinion here. Here is my Twitter follow-up:
@ProfPadfield @MarcODeGirolami Not in this case 🙁
— Josh Blackman (@JoshMBlackman) November 9, 2013