March 25, 2014

In advance of today's Hobby Lobby arguments before the Supreme Court, Joy Reid gave everyone a history lesson about the origins of the concept of corporate personhood.

In these cases now before the court, at least one of the justices is going to have to figure out how to get around his own rulings if he wants to find in favor of these corporate persons.

Talking Points Memo:

In 1990, Scalia wrote the majority opinion in Employment Division v. Smith, concluding that the First Amendment "does not require" the government to grant "religious exemptions" from generally applicable laws or civic obligations. The case was brought by two men in Oregon who sued the state for denying them unemployment benefits after they were fired from their jobs for ingesting peyote, which they said they did because of their Native American religious beliefs.

"[T]he right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability," Scalia wrote in the 6-3 majority decision, going on to aggressively argue that such exemptions could be a slippery slope to lawlessness and that "[a]ny society adopting such a system would be courting anarchy."

"The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind," he wrote, "ranging from compulsory military service, to the payment of taxes, to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races."

That opinion could haunt the jurist if he seeks to invalidate the birth control rule.

Well now. How will he get around that opinion?

Slate adds more historical context:

Despite a certain gauzy mythology of corporate rights that has grown up around the 1886 case Santa Clara v. Southern Pacific Railroad, the court carefully parsed the different clauses of the 14th Amendment, granting corporations equal-protection and due-process rights when necessary to protect the property interests of the human persons who constituted their shareholders but denying corporations the privileges and immunities of citizens or due-process protections for life and liberty.

All of that may be true, but it's also true thatCitizens United expanded corporate personhood, granting corporations a right to free speech. This court is the US Chamber of Commerce's court, so it's easy to believe they'll find a pathway to granting Hobby Lobby their wish.

Will Scalia twist himself into a pretzel to deny women the right to have contraceptives covered under the ACA while granting corporations, rather than their owners, religious liberty as an entity unto themselves?

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