As with her medical expert, Posner turns to just one side’s expertise on the legal issues in the HHS mandate controversy. Here is her one really substantive paragraph on the issues in the Hobby Lobby case:
Corporate plaintiffs, including Hobby Lobby, have argued that the Supreme Court’s 2010 decision in Citizens United v. FEC, which recognized free-speech rights for corporations, bolstered their claim that corporations have rights under the Free Exercise Clause. But Marty Lederman, a professor at Georgetown University Law School and an expert on religious-freedom issues, said that the free-speech ruling does not translate to the free exercise context. “It’s not at all obvious that a for-profit corporation can be injured in that way—a corporation doesn’t have a conscience, or religious obligations,” Lederman said.
Now Marty Lederman is a perfectly respectable expert to whom to turn on these questions, but he ought to be embarrassed to be Posner’s source here (and perhaps he is, if she only used the “best” parts of what he said from her perspective). First of all, the Tenth Circuit explicitly declined to reach any constitutional question in Hobby Lobby’s case, resting its ruling in the company’s favor (in a still quite preliminary stage of the litigation) entirely on the statutory norms of the Religious Freedom Restoration Act. That act protects the rights of “persons” to religious freedom, but does not specifically either include or exclude corporations from the category of “persons.” In a compellingly reasoned opinion on this point, however, the majority noted comparisons to other statutes and concluded that “Congress knows how to craft a corporate religious exemption [i.e., leaving some or all corporations unprotected by the statute], but chose not to do so in RFRA.” Hence whatever might be said about how translatable the Citizens United holding is from the free speech context to the religious freedom context–moving from one constitutional clause to the other–the statutory inclusion of corporations as persons in RFRA is not easily disputed.
But let us have a look at the constitutional claim Prof. Lederman makes here. He doubts that “a for-profit corporation can be injured” with respect to the free exercise of religion, because “a corporation doesn’t have a conscience, or religious obligations.” Why, first of all, does he suppose there is some difference, relevant for constitutional reasoning, between a for-profit corporation and a nonprofit one? Churches themselves are typically incorporated. Can such corporations “have a conscience, or religious obligations”? If they can, why can’t a for-profit corporation? (And isn’t it part of the standard kit bag of the left to complain of corporations that behave as though they have no conscience, and to praise the ones they think have one–as though the very thing were possible that Lederman calls into question? Or is it possible for ExxonMobil to have a conscience about the climate, but not for Hobby Lobby to have one about abortion?)
Let’s grant for a moment that no corporation–or even simply no for-profit corporation–can “have a conscience, or religious obligations.” If that is true, it is difficult to see how they can have opinions, which by parity of reasoning would belong only to natural persons or individuals. But the fact that corporations are capable of having opinions–and the right to express them–is at the heart of Citizens United. It may be that Prof. Lederman would like to toss the Citizens United precedent on the ash heap. But if it is relevant precedent for the question of who has First Amendment rights, then its logic rather supports Hobby Lobby than the reverse.
Prof. Lederman probably knows the arguments against his own view, ably presented by Prof. Mark Rienzi of Catholic University law school (also co-counsel on this case) in a recent law review article. He may even have answers to those arguments. But Sarah Posner has no interest, it seems, in presenting that other point of view.