Scholarly Commons @ IIT Chicago-Kent College of Law

Article Title

Distinguishing the Corporal From the Divine: Legal Fictions Create Bodies Not Souls

Authors

Daisy Ayllon, IIT Chicago-Kent College of Law

Abstract

Can a for-profit, secular corporation exercise religion? If so, does the Affordable Care Act's requirement that employer-provided health insurance plans offer women of reproductive age contraceptives violate free exercise rights?

Plaintiffs challenging the "contraceptive mandate," as it is commonly known, argue that it violates their rights under the Religious Freedom Restoration Act (RFRA) because it imposes a substantial burden on their religious exercise without meeting strict scrutiny. Although these challenges do present courts with a novel issue (whether a secular, for-profit corporation is a "person" capable of "exercising religion"), the answer to the broader question should be clear: requiring corporate-provided health insurance plans to include coverage for contraceptives does not ipso facto violate the free exercise rights of corporate shareholders.

The Seventh Circuit's opportunity to weigh in on this debate came in the consolidated cases of Korte v. Sebelious and Grote v. Sebelious. The decision—a sixty-four-page majority opinion and a ninety-page dissent—has been the most expansive against the contraceptive mandate among the federal circuit courts thus far. While other circuits have allowed either the companies or the owners to challenge the contraceptive mandate, the Seventh Circuit was the first court to rule in favor of and to allow challenges by the companies and their respective owners.

This Comment argues that the Seventh Circuit's decision was incorrect in at least two major respects: first, because their claims derive solely from the alleged injury to the corporations, the plaintiffs-shareholders do not have standing to assert a free exercise claim; and second, the majority wrongfully concluded that for-profit, secular corporations are "persons" that can exercise religion. Never before has the Supreme Court allowed secular, for-profit corporations to claim religious freedom. For good reason. Free exercise of religion is "purely personal" guarantee, which, like the privilege against self-incrimination, should not be extended to corporations.

Recommended Citation

Daisy Ayllon, Distinguishing the Corporal From the Divine: Legal Fictions Create Bodies Not Souls, 9 Seventh Circuit Rev. 21 (2013).
Available at: https://scholarship.kentlaw.iit.edu/seventhcircuitreview/vol9/iss1/3