Written by Don Byrd
In the next couple of days, I will profile the series of issues I expect to be key religious liberty topics during 2013. One of the biggest and most controversial questions courts will deal with grows out of the contraception mandate lawsuits. Can closely held corporations exercise religion, as an alter ego of its owners? If so, what are the ramifications for workplace regulations generally? In a helpful post today, Lyle Deniston lays out the issue.
The key dispute in this context thus appears to turn on whether the faith preferences of the owners of a profit-making corporation can be transferred to the business entity so that it is not an independent entity but rather, for constitutional purposes, an alter ego. The Kortes argue that, since the couple owns 88 percent of the construction company, they do treat it as an alter ego to express their faith. And it appears that, at least for the time being, that claim has prevailed in the courts in their case.
However, other judges on other federal courts have disagreed, and have concluded flatly that a secular corporation cannot exercise religion, and have warned that the contrary conclusion could raise the prospect of scuttling many laws that protect employees’ workplace rights.
With conflicting answers to this question coming from courts almost daily, the question of corporate personhood with regard to religious exercise seems sure to keep moving up the judicial ladder. Thus far the Supreme Court has declined to intervene. As cases get resolved in lower courts, however, and the impact of the new law becomes clearer, that may change.
