Publication Date

July 3, 2014


Legal, Public History

What is a person? Is a corporation a person? And if a corporation is a person, is it afforded religious liberty under the United States Constitution?

These are the questions the Supreme Court had to answer in Burwell v. Hobby Lobby. On the last two questions, Samuel Alito, who wrote the majority opinion, and four other justices (Roberts, Scalia, Thomas, and Kennedy) answered with a definitive yes.

After reading Alito's opinion, it is clear that he is not particularly interested in bringing history (unless you can call the Religious Freedom Restoration Act of 1993 "history") to bear on this case. As Princeton University law professor Robert P. George has written: “As a good judicial craftsman, Justice Alito adheres firmly to the canon of legal interpretation that counsels against reaching an issue that need not be resolved in order to dispose of the case at hand.” Why would Alito mess with the complexity of the past when he can dispose of the case easily by arguing that the Religious Freedom Restoration Act of 1993 (RFRA), a law that prohibits the government from imposing burdens on someone’s ability to practice religion, applies to for-profit corporations?

In the end, Alito did his job and he did it successfully. He interpreted the RFRA broadly (as he claimed it was intended to be interpreted) to include corporations. He appealed to the Dictionary Act (which includes corporations in its definition of "person"). And he argued that corporations have the capacity to exercise religion. Hobby Lobby does not have to provide contraception to its female employees if its owners believe that such forms of contraception are equivalent to abortion.

In her dissenting opinion, Ruth Bader Ginsburg was much more willing to make a historical argument. "Until this litigation," she writes, "no decision of this Court recognized a for-profit corporation's qualification for a religious exemption from a generally applicable law, whether under the Free Exercise Clause or RFRA." She cites Chief Justice John Marshall, who argued in Dartmouth v.Woodward(1819) that a corporation is "an artificial being, invisible, intangible, and existing only in contemplation of law."

Ginsburg's historical argument is a strong one. Indeed, religious liberty or the Free Exercise Clause has never been directly applied to a for-profit corporation. But this does not mean there is no precedent for considering a for-profit corporation a "person." As the prominent American historians at Backstory have recently reminded us, the post-Civil War Supreme Court affirmed on multiple occasions that corporations (mostly railroads) are covered under the Fourteenth Amendment. Corporate personhood has a long history.

But can a corporation have religious liberty? I obviously don't know how Roger Williams, Isaac Backus, James Madison, or Thomas Jefferson—the great early American defenders of religious liberty—would have responded to Burwell v. Hobby Lobby, but there is little doubt that they would have considered such a proposal to be very strange. For these men, religious liberty was a very personal thing. Religious liberty was meant to protect deeply held spiritual convictions that found their home in the "soul" or "conscience." Religious liberty was an inherently Protestant concept. It stemmed from the belief that people could read the Bible for themselves and draw their own religious conclusions. It has always been a religious idea applied to individual human beings. Can a for-profit cooperation have a soul? Can it truly practice liberty of conscience?

We might also ask, as political scientist Patrick Deneen has done so brilliantly, whether a big box store such as Hobby Lobby, located in a massive shopping center constructed on a slab of asphalt at the edge of town, can be considered a person. And if it is a person, can it exercise religious liberty? What happens to a traditional and historical understanding of a person—a human being embedded in political, religious, and local communities exercising virtues such as friendship, love, duty, and citizenship—when it is defined in the context of a soulless corporate world with the primary purpose of maximizing profits?

It is ironic that so many Christians are cheering this new definition of personhood.  

is professor of history and chair of the history department at Messiah College in Mechanicsburg, Pennsylvania.

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