Or more precisely, can a CEO impose his or her religious convictions on every employee and, by extension, every customer of that corporation?
When Hebrew National produces kosher hot-dogs, is that an exercise of religion? When Hobby Lobby denies birth control or abortion coverage on the health insurance offered to employees is that protected religious speech?
Dahlia Lithwick writes in Slate:
The Supreme Court has long held the free exercise clause of the First Amendment to prohibit governmental regulation of religious beliefs, but a long line of cases holds that not every regulation that inflects upon your religious beliefs is unconstitutional. The Religious Freedom Restoration Act bars the federal government from imposing a "substantial burden" on anyone’s "exercise of religion" unless it is "the least restrictive means of furthering [a] compelling governmental interest." The Obama administration and the judges who have refused to grant injunctions contend that the burden here is insignificant, amounting to a few dollars borne indirectly by the employer to facilitate independent, private decisions made by their female employees. They also argue that they are promoting a compelling government interest in providing preventive health care to Americans. The employers and the judges who have enjoined the birth-control provision claim that they are being forced to choose between violating protected religious beliefs and facing crippling fines and that free or inexpensive birth control is available at community health centers and public clinics.
Basically, the constitutional question will come down to whether a for-profit, secular corporation can hold religious beliefs and convictions, or whether—as David Gans explains here —“the Court’s cases recognize a basic, common-sense difference between living, breathing, individuals—who think, possess a conscience, and a claim to human dignity—and artificial entities, which are created by the law for a specific purpose, such as to make running a business more efficient and lucrative.” Will Baude takes the opposite view, explaining that the 3rd Circuit’s reasoning—that “ ‘corporations have no consciences, no beliefs, no feelings, no thoughts, no desires’ ... would all prove too much, because they are technically true of any organizational association, including ... a church!” Baude likens the claim that corporations can never have religious freedom rights to the claim that corporations—including the New York Times—can never have free-speech rights.
Part of the problem, at least in the case of Hobby Lobby and Conestoga, is that neither corporation was designed to do business as religious entities. It has been clear since the nation’s founding that corporations enjoy rights in connection to the purposes for which they were created—which is why the administration already exempts religious employers whose purpose is to inculcate religious values and chiefly employ and serve people who share their religious tenets. This is about companies that don’t meet those criteria. As the dissenters at the 10th Circuit observed, the fact that some “spiritual corporations” have some religious purposes doesn’t make every corporation a religious entity. And as professor Elizabeth Sepper of Washington University puts it in a new law-review article on the subject: “Corporations, as conglomerate entities, exist indefinitely and independently of their shareholders. They carry out acts and affect individual lives, and have an identity that is larger than their constituent parts. Walmart is Walmart, even when Sam Walton resigns.”