Ilya Shapiro

What Rights Do Corporations Have

This chapter examines the idea of corporate personhood and the rights that flow from it. Gans argues that the Constitution never mentions corporations and doesn’t give corporations the same rights as individuals. He asserts that the Founders understood that there were fundamental differences between individuals and corporations, which received special privileges that individuals didn’t. While corporations have some rights, he argues that the Constitution cannot be applied wholesale to them. Shapiro agrees that corporations—or other groups of people, regardless of legal form—don’t have the same rights as humans. He gives several examples of corporate rights, however, and concludes that they’re a subset of the rights of natural persons. The disagreement here is over the scope of those rights and how to apply them.

Corporate Personhood and Religious Liberty

This chapter examines the claim at the heart of Hobby Lobby: do corporations have a right to exercise religion? Gans says no, because this is a personal right tied to conscience, conviction, and human dignity. No court has ever protected the right of businesses to practice religion. On the contrary, courts have refused to grant secular corporations religious exemptions, particularly from laws protecting employees’ rights. Shapiro disagrees because the people behind the company can have their religious liberty violated through actions affecting the corporation. Neither legal form nor profit motive affects the scope of individual rights; the proper inquiry under the law is whether religious exercise is burdened, whether the government can justify that burden, and whether there’s another way to achieve its justified goal.

The Ruling: What Does It All Mean?

This chapter collects the authors’ reactions to and analysis of the Supreme Court’s ruling in favor of Hobby Lobby. Shapiro thinks that the decision has been overblown, that it’s a clear and correct application of statutory text. It’s a win for religious liberty, but it’s not a seminal Supreme Court moment. Moreover, Hobby Lobby’s employees can still buy any contraceptives they want, while the government has many ways of providing them without cost. Gans disagrees, pointing out that for the first time, the Court recognized a corporate right to religious exercise—at the cost of women for whom it’ll be harder to obtain certain contraceptives. In Gans’s view, the ruling turns liberty on its head, allowing corporate owners to impose their beliefs on their employees.

The Broader Implications of Hobby Lobby: Is There a Slippery Slope?

This chapter assesses the oral arguments in Hobby Lobby and extrapolates the consequences of an eventual ruling. The authors agreed that standing—whether plaintiffs could properly raise their religious liberty claim (as corporations or individuals)—didn’t interest the Supreme Court very much. Instead, the debate centered on the merits of the corporation’s claim, the consequences of ruling for plaintiffs, how broad that ruling would be, and whether it would open the door to new religious-exemption claims. Gans argued that it would be unprecedented to recognize an exemption that extinguished the rights of employees, while Shapiro thought that RFRA made the case simpler because the government could accomplish its goal through other means. Both identified Justice Kennedy as a key player.

Introduction by Jeffrey Rosen

Jeffrey Rosen, president of the National Constitution Center, explains the role of the NCC in our nation’s constitutional discourse. He then introduces the Gans-Shapiro debate over corporate rights, religious liberty, and Hobby Lobby and how it originated as a series of NCC podcasts and forums.