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On The Front Lines

Warning Against Double Standard in Recognizing ‘Rights’ for Corporations, Rutherford Institute Calls on High Court to Protect Religious Freedom

WASHINGTON, D.C. — Warning against creating a constitutional double standard for corporations when it comes to First Amendment protections, The Rutherford Institute is urging the U.S. Supreme Court to recognize that corporations have a right to religious expression, in addition to the already established right to political expression recognized by the Court in its 2010 ruling in Citizens United.

In filing an amicus curiae brief in the consolidated cases Kathleen Sebelius v. Hobby Lobby and Conestoga Wood Specialties Corp. v. Sebelius, Institute attorneys are challenging the government’s assertion that for-profit companies are not entities protected under the First Amendment’s “free exercise” clause, which protects people from being persecuted for their religious convictions. Specifically, the case revolves around the Affordable Care Act’s birth control mandate, which requires for-profit companies to provide insurance coverage for employees that choose to use their plans to acquire birth control, a medical practice which some company owners find morally objectionable, while providing exceptions for non-profit entities and religious institutions.

“For good or bad, we’re long past the point of debating whether corporations are entitled to rights. The question now is how to ensure that the law is applied judiciously, equally, and in such a way that the rights of all—individuals and corporations alike—are protected,” said John W. Whitehead, president of The Rutherford Institute and author of A Government of Wolves: The Emerging American Police State. “Political hype to the contrary, this particular case is not about whether one supports Obamacare or abortion, but whether we are going to preserve and abide by the First Amendment in its entirety—recognizing that its religious freedom clause carries as much weight as the right to free speech, assembly, press or redress—or whether we shall disembowel the whole thing by allowing it to be taken piecemeal as best suits the political climate of the day.”

Under the Affordable Care Act, a.k.a. Obamacare, business owners required to provide health insurance to employees are also required to cover birth control, although exceptions were made for non-profit corporations and religious institutions. Two for-profit corporations, Hobby Lobby and Conestoga Wood Specialties, both owned by families with moral religious objections to the contraceptive mandate, mounted separate challenges to the law. The U.S. Court of Appeals for the 10th Circuit subsequently sided with Hobby Lobby, citing “the First Amendment logic of Citizens United,” while the 3rd Circuit Court of Appeals ruled that Conestoga’s rights were not violated.

In asking the Supreme Court to affirm the 10th Circuit’s ruling and reverse the 3rd circuit, Rutherford Institute attorneys argue that defining the parameters in which corporate entities may operate is a matter to be settled by the States and those who govern those entities, noting that “states both enable and require corporations to make moral decisions and to engage in practices that result from those decisions.” Countering the narrative by federal officials that non-profit status is what determines the threshold of moral action, Rutherford attorneys point out that “the measure of moral action is motivation” and that the United States Supreme Court has “regularly recognized that religious and secular conduct can co-exist in the same person.” Affiliate attorneys D. Alicia Hickok, Jason P. Gosselin, and Todd N. Hutchison with Drinker, Biddle & Reath assisted in drafting the amicus brief.


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