In Mary Shelley’s horror story, Dr. Frankenstein created a monster out of discarded body parts and then lost control of it. The monster confronts the doctor and yells, “Accursed creator! Why did you form a monster so hideous that even you turned from me in disgust?”
The Supreme Court is the modern day Dr. Frankenstein. They have not re-animated necrotic flesh, but rather they have breathed legal life into the corporate form and then slowly lost control. In the Hobby Lobby case, the Supreme Court has given corporations a new power: the power of religious belief and the attendant protections of the Religious Freedom Restoration Act of 1993 (RFRA).
The Roberts Court has expanded the rights of corporations in two expansive directions: (1) First Amendment political rights and (2) now thanks to Hobby Lobby, statutory religious rights. The Court is providing a one-two punch to empower corporations to be legal monsters.
The Roberts Court’s first big move to embolden corporations was in Citizens United where they allowed corporations the ability to spend as much money as they want on political ads. This could be a big source of dark money in our elections. Unfortunately few firms have spent money on political ads using their DBA (doing business as) names. But in the 2012 election there was at least $300 million in dark money $35 million of which ran through the Chamber of Commerce—a business trade association. Thus, the potential for big corporate political spending hangs over America’s heads like the Sword of Damocles.
The second big move came on Monday in the Hobby Lobby case. In this case, closely held corporations with religious families at the helm objected to a variety of birth control methods that are mandated to be covered by the Affordable Care Act. The federal law basically says that the company can either cover the mandatory package of reproductive health products or else they must pay a fine. These companies raised religious objections to certain types of birth control essentially confusing them with abortion. Thus for many Court watchers, this case has been about women’s reproductive freedom.
But for corporate governance experts, Hobby Lobby has always been a case about corporate personhood. In Citizens United, corporations were given the magical ability to have political views. The anthropomorphization of corporations continues with Hobby Lobby and now they suddenly have religious views too.
So what does it matter that closely held corporations have religious views? It matters because it could be a way of gutting the rule of law. To be fair, the Court has been all over the map about when a religious objection can excuse a human being from a generally applicable law. So, the Amish have gotten their kids excused from mandatory laws requiring public education. Jehovah Witnesses have been excused from pledging allegiance to the flag. On the other hand, religious exemptions have not been permitted as excuses to skip paying social security or to evade anti-drug laws.
Hobby Lobby is a bombshell because it not only allows the corporate entity to have a religious belief, it also allows that religious belief to carve an exemption in a generally applicable law—the Affordable Care Act. This might seem small—that employees at one arts and crafts chain and a Mennonite cabinet company won’t have certain birth control covered—but its not hard to see how suddenly, every company that thinks it can save a buck will be cutting corners on health care on dubious “religious” grounds.
The Supreme Court probably thinks it is doing corporations and their owners a favor, but they have no idea how this story will end. The whole episode brings to mind another quote from Mary Shelley’s Frankenstein. As she warned, “by slight ligaments are we bound to prosperity and ruin.”
Torres-Spelliscy is an assistant professor of law at Stetson University College of Law and a Brennan Center Fellow. She is the author of Safeguarding Markets from Pernicious Pay to Play: A Model Explaining Why the SEC Regulates Money in Politics.