Fresh off the heels of the fifth installment in this series, the Seventh Circuit in Korte v. Sebelius has now weighed in on the ability of corporations to exercise religion and, as might have been expected, fractured and continued the divide among courts in the Third, Sixth, Tenth, and DC Circuits. This is, by far, the most extensive and thoughtful discussion of the issue, from both sides. I'll excerpt only fragments here (those most directly implicating Citizens United, and fragments that also heavily rely on Bellotti).
From the majority opinion:
For the sake of completeness, we note as well that nothing in the Court’s general jurisprudence of corporate constitutional rights suggests a nonprofit limitation on organizational free-exercise rights. Prior to Smith, and continuing to the present day, the Court has held that corporations may claim some but not all constitutional rights.
For example, long before Citizens United reinvigorated the political-speech rights of corporations, see Citizens United v. FEC (2010), the Court confirmed that corporations have free-speech rights, see, e.g., . . . First Nat’l Bank of Bos. v. Bellotti (1978); N.Y. Times Co. v. Sullivan (1964). Prior to Smith the Court held that the Fourth Amendment protected corporations from unreasonable searches and seizures. Corporations qualify as persons for at least some purposes under the Due Process and Equal Protection Clauseso f the Fourteenth Amendment. On the other hand, prior to Smith the Court excluded corporations from the Fifth Amendment privilege against self-incrimination, and the emerging right of privacy.
These cases do not yield a unifying theory of corporate constitutional rights, but Bellotti contains some language that might be read to suggest a general decisional approach: “Certain ‘purely personal’ guarantees, such as the privilege against compulsory self-incrimination, are unavailable to corporations and other organizations because the ‘historic function’ of the particular guarantee has been limited to the protection of individuals.” And this: “Whether or not a particular guarantee is ‘purely personal’ or is unavailable to corporations for some other reason depends upon the nature, history, and purpose of the particular constitutional provision.” Id. But the Court has never elaborated.
Ultimately, we don’t need to parse the cases on corporate constitutional rights too finely. We are confronted here with a question of statutory interpretation. Our task is to determine whether prior to Smith it was established that a closely held, for-profit corporation could not assert a free-exercise claim. It was not so established. We conclude that K & L Contractors and Grote Industries are “persons” within the meaning of RFRA.
And from the dissenting opinion:
Perhaps the best argument in favor of according free exercise rights to corporations is that the right to free speech already has been recognized as among those rights that corporations enjoy. Citizens United (coll. cases); Bellotti (coll. cases). But beyond the fact that the free exercise clause, like the free speech clause, resides in the First Amendment, I find little, if anything, in the speech cases that speaks to the nature of religion and why corporations, as a matter of history and logic, should be able to assert free exercise rights. Corporations, because they have property, financial, and political interests, of course have a free speech interest in protecting and promoting those interests and in pursuing their agendas, be their stated goals charitable, religious, political, or profit-making. Beyond those parochial interests, Bellotti (which struck down a law prohibiting a corporation from making expenditures to influence the outcome of any public referendum other than one which directly affected the property, business, or activities of the corporation), stressed the core First Amendment interest in a robust dialogue on issues of public concern, an interest which extends beyond a particular speaker’s wish to express his views to include the public’s right to hear his views and those of others. The Court added that “[t]he inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its sources, whether corporation, association, union, or individual.” Decisions recognizing the speech rights of corporations thus rest “not only on the role of the First Amendment in fostering individual self-expression but also on its role in affording the public access todiscussion, debate, and the dissemination of information and ideas.”
Religion, by contrast, is a personal undertaking. Certainly there is a collective societal interest in protecting religious liberty, and religion can and has influenced the public sphere in positive ways. But religious faith is, by its nature, an intensely individual experience, and for the reasons that follow, I believe it likely is one of those “purely personal” constitutional rights that the Supreme Court will not extend to corporations—certainly not to secular, for-profit corporations.
A corporation is a legal construct which does not have the sentience and conscience to entertain such ultimate questions. “In the words of Chief Justice Marshall, a corporation is ‘an artificial being, invisible, intangible, and existing only in contemplation of law.’” It is a creature of man, not of God. It “believes,” if it can be said to believe anything, only what the people who found, own, and/or manage the corporation believe. Citizens United (Stevens, J., concurring in part & dissenting in part) (“It might also be added that corporations have no consciences, no beliefs, no feelings, no thoughts, no desires.”).
Indeed, it strikes me as potentially demeaning to religious faith to say that a corporation should be said to possess the same right to free exercise of religion that a human being enjoys in this country. Inextricably bound as it is with a person’s sense of himself, his origins, the world, and what life is, religious belief (including the lack of such belief) is a defining trait of humankind; and this is one reason why we view it as a core component of individual freedom: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” Planned Parenthood of Se. Pennsylvania v. Casey (1992). To say, as the court does today, that the right to exercise one’s religious faith may be asserted on the same terms by a legal construct—an incorporated currency exchange, accounting firm, or automobile repair shop, for example—as by a human being, is, to my mind at least, irreconcilable with the very essence of religious faith and, for that matter, humankind.
There is much more discussed in the opinions, so read them at length.