Yesterday’s decision in the Hobby Lobby case offers yet another chapter in the still-unfolding story of the extent to which corporations are “persons” for purposes of claiming constitutional rights. Judicial recognition that corporations might claim constitutional rights has a long history, dating back to the late nineteenth century. In recent years, the Supreme Court has sparked renewed attention to the issue, most notably with its 2010 decision in Citizens United in which a 5-4 majority held that certain campaign funding restrictions violated the First Amendment free speech rights of corporations.
In the Hobby Lobby case, one of the government’s arguments in defending the challenged contraception coverage of the Affordable Care Act was that the plaintiffs lacked the standing to even make this kind of religious freedom claim. Only Justices Ginsburg and Sotomayor bought that argument (Justices Breyer and Kagan did not join that section of Justice Ginsburg’s dissent in which she challenged “the notion that free exercise rights pertain to for-profit corporations”).