In a few days, the Supreme Court will hear oral argument in Sebelius v. Hobby Lobby, a major test of Affordable Care Act’s contraception mandate. The plaintiffs are family business owners, whose religious beliefs forbid them from providing their employees with drugs that can destroy a fertilized human egg. But if they don’t supply the drugs in violation of their religious beliefs, they face crushing fines that could reach $500 million per year.
The government’s main argument in the Supreme Court is that the plaintiffs should lose because the plaintiffs are running a for-profit corporation—and corporations can’t exercise religion. As the government’s supporters like to say, "A corporation can’t pray."
This ignores the fact that most of this nation’s churches, synagogues, and mosques are corporations, and nobody doubts that they can pray. But it also raises a very important question: If the government can penalize a corporation because of its owners’ religious practices, can it also penalize a corporation because of its owners’ race? Put another way: If a corporation can’t pray, can a corporation be black?
Suppose an African-American business owner tries to open a store in the Deep South. The town refuses to grant a permit because, in the words of the town clerk, "We don’t want your kind here." Can the business sue for race discrimination? This is not merely hypothetical; minority-owned corporations have filed dozens of federal lawsuits alleging race discrimination.
If the government is right in Hobby Lobby, all of these corporations should lose. The government says it is a "bedrock principle that a corporation is legally distinct from its owners." Thus, there is "no basis on which to impute the [owners’] religious beliefs to the corporat[ion]," and no basis for a corporation to sue for religious discrimination.
That’s just what defendants accused of race discrimination have argued. They claim that a corporation is distinct from its owners, and there is no basis to impute the owners’ race to the corporation. On this view, there is no such thing as racial discrimination against a minority-owned business.
How do you think those defenses fared?
They’ve lost. Every single time.
The latest rejection came just yesterday [March 6], from the unanimous U.S. Court of the Appeals Fourth Circuit. As the court explained: "[A] minority-owned corporation may establish an ‘imputed racial identity’" based on the race of its owners. In support, it cited similar rulings from the First, Second, Seventh, Eighth, Ninth, Tenth, and D.C. Circuits. And the Supreme Court. The court marveled: "[I]t is hard to believe that the Supreme Court would deny standing to the corporation because it ‘has no racial identity.’" That would gut the civil rights laws.
The same is true in Hobby Lobby. If a corporation can have an "imputed racial identity" based on the race of its owners, it can have "imputed religious identity" based on the religion of its owners. Otherwise, the government would be free to penalize a corporation simply because the owner was a Christian. Or Muslim. Or Jew. (But that would never happen, right?)
Ultimately, the government’s argument fails because it defies reality. Of course, a corporation and its owners are distinct for certain legal purposes. But when the government punishes a corporation, it also harms the owners. And when it does so because of something deeply meaningful to the owners—their race, their sexual orientation, their religious practices—the harm is particularly egregious. That’s why we have civil rights laws.
So the real question in these cases is not whether a corporation can pray, or whether a corporation can be black. It is whether the government has harmed someone at the core of their identity, and done so without the kind of compelling reason that occasionally justifies such harms. In Hobby Lobby, the flesh-and-blood owners of a family business face crushing fines because of their religious practices, which the government can easily accommodate. When the Supreme Court protects them, it will be protecting the civil rights of minority business owners everywhere.
Luke Goodrich is deputy general counsel at the Becket Fund for Religious Liberty, which represents Hobby Lobby, and an adjunct professor at the University of Utah S.J. Quinney College of Law.
Copyright 2014 The Salt Lake Tribune. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.