Bancroft and the space bar: word counts in appellate briefs

The space bar seems so unimportant. Despite hogging half a row of keys to itself at the bottom of the keyboard, its function is often unnoticed. It is, after all, the absence of text.

When filing an appellate brief, one is often constrained by difficult word counts. This is particularly true for Supreme Court briefs, when a party may have much to say, and when the briefs are the primary mechanism for alerting the Court of the legal issues.

Word counts are tricky things. It turns out that word counts can vary based upon one's word processor, which I've discussed before. Words counts may vary depending on how a program uses spaces or punctuation marks to distinguish words.

When reading the recent case brief filed by Bancroft PLLC in American Broadcasting Companies v. Aereo, I noticed that petitioners cited their appendix as "Pet.App.5" (if citing page 5 of the appendix). I noticed it because it's unusual to consolidate the abbreviations for a citation. The Bluebook rules dictate that "all adjacent single capitals" should be closed, but not single capitals with longer abbreviations (Bluebook Rule 6.1(a)); for instance, "N.W." and "S.D.N.Y.," but "D. Mass" and "S. Ct." This is, of course, advised, but not required, practice.

And it turns out that this is not the only time Bancroft has filed a brief with such abbreviations. Consider Bond v. United States (PDF), with a similar absence of spaces.

But, it is not the sole way that Bancroft briefs such cases. Consider this brief (PDF) in Northwest v. Ginsberg. There, ordinary spacing rule apply: "Pet. App. 5."

Word counts are what they are. But they can be a little more than they are with the right use of the little space bar.

Citizens United in Affordable Care Act litigation, Part VI

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. 

Citizens United in Affordable Care Act litigation, Part V

Following up on Part IV,  the D.C. Circuit today (PDF) in Gilardi v. U.S. Dep't of Health and Human Servs. took on the issue of whether for-profit corporations can exercise religious beliefs.

From the opinion of Judge Brown (and this portion was joined by Judge Edwards):  

Citing Citizens United v. FEC, the Freshway companies argue that corporations—religious or otherwise—are entitled to the full array of First Amendment protections, including the right to free exercise.  They are not the only proponents of this position. See Hobby Lobby; see also Conestoga Wood. There is an appeal to this simple reasoning; after all, the free-exercise and free-speech rights are enshrined in the same constitutional provision, separated only by a semicolon.

Perhaps Appellants’ constitutional arithmetic, Citizens United plus the Free Exercise Clause equals a corporate free-exercise right, will ultimately prevail.  But we must be mindful that Citizens United represents the culmination of decades of Supreme Court jurisprudence recognizing that all corporations speak. See Conestoga Wood. When it comes to the free exercise of religion, however, the Court has only indicated that people and churches worship. As for secular corporations, the Court has been all but silent.

Consider Bellotti—the progenitor of Citizens United. When the Bellotti Court declared “political speech does not lose First Amendment protection ‘simply because its source is a corporation,’” Citizens United (quoting Bellotti), it reviewed many cases in which the Court invalidated a state law because it “infringe[d on] protected speech by corporate bodies.” Bellotti. In other words, Bellotti crystallized a robust body of caselaw giving rise to the constitutional right of corporate political speech, which the Citizens United Court could rely on as a firm foundation.

No such corpus juris exists to suggest a free-exercise right for secular corporations. Thus, we read the “nature, history, and purpose” of the Free Exercise Clause as militating against the discernment of such a right.  When it comes to corporate entities, only religious organizations are accorded the protections of the Clause.  And we decline to give credence to the notion that the for-profit/non-profit distinction is dispositive, as that, too, is absent from the Clause’s history.  Fortunately, we need not opine here on what a “religious organization” is, as the Freshway companies have conceded they do not meet that criterion.

Judge Randolph did not join this part of Judge Brown's analysis:

I do not join parts III and IV of Judge Brown’s opinion because I do not believe we need to reach the potentially far-reaching corporate free-exercise question. Other courts in contraceptive-mandate cases have “decline[d] to address the unresolved question of whether for-profit corporations can exercise religion.” The same approach may be used without deciding the rights of the Freshway Corporations because the government could enforce the mandate against the corporations only by compelling the Gilardis to act. Since “it is not necessary to decide more, it is necessary not to decide more.” PDK Labs. Inc. v. U.S. Drug Enforcement Admin. (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in the judgment).

We should be particularly hesitant to pass unnecessarily on such a complex issue. If secular for-profit corporations can never exercise religion, what of profitable activities of organized religions? If only religious for-profit organizations have a free-exercise right, how does one distinguish between religious and non-religious organizations? Why limit the free-exercise right to religious organizations when many business corporations adhere to religious dogma? See Mark L. Rienzi, God and the Profits: Is There Religious Liberty for Money-Makers?, 21 Geo. Mason L. Rev. (manuscript at 11-24) (forthcoming fall 2013). If non-religious organizations do not have free-exercise rights, why do non-religious natural persons (athiests, for example) possess them? If a corporate free-exercise right is recognized, in any form, there are equally challenging secondary questions. How should the beliefs of a religious corporation be determined? Can publicly traded corporations be religious? If so, do they take on the religions of their shareholders as a matter of course? If a religious corporation is sold, does it retain its religious identity? These questions, challenging in themselves, would confront us in different permutations across the diverse entity forms and organizational structures of the American business landscape.

UPDATE: I have generally avoidd citing second-hand commentary about these decisions, but this column by Emily Bazelon and Dahlia Lithwick contains several misleading (either by lack of understand, obfuscation, or some combination) claims about the role of Citizens United in the court's decision. The relevant text of the court's actual holding is cited above.

Accessing oral arguments in federal appellate cases

A funny thing happened when I tried to obtain the oral argument in Kerr v. Hickenlooper from the Tenth Circuit's website. 

It didn't exist. 

One can quickly visit the websites of the First Circuit, Third Circuit, Fourth Circuit, Fifth Circuit, Sixth Circuit, Seventh Circuit, Eighth Circuit, Ninth Circuit, D.C. Circuit, and Federal Circuit to find libraries of their oral arguments.

That leaves three that do not: the Second Circuit, the Tenth Circuit, and the Eleventh Circuit.

The Second Circuit, to my knowledge, does not provide any mechanism to obtain the recordings of oral argument.  [UPDATE: Michelle Olsen helpfully noted that the Second Circuit provides audio access with CD purchase.]

Eleventh Circuit Rule 34-4(g) (PDF) provides, "With advance approval of the court, counsel may arrange and pay for a qualified court reporter to be present to record and transcribe the oral argument for counsel's personal use. When counsel has received such approval, counsel must provide the court with a copy of the transcript without delay and at no expense to the court. Except as otherwise provided in this rule, recording of court proceedings by anyone other than the court is prohibited." It also explains, "Oral argument is recorded for the use of the court. Although the court is not in the court reporting or audio recording business, copies of the court's audio recordings of oral arguments are available for purchase on CD . . . ."

Tenth Circuit Rule 34.1(E)(1) (PDF) explains, "Oral arguments are recorded electronically for the use of the court. Parties or others seeking access to the recordings may, however, file a motion to obtain a copy. The motion must state the reason or reasons access is sought. Upon issuance of an order from the hearing panel granting the request, the clerk will be directed to forward the mp3 recording via email."

When I called the clerk of the Tenth Ciruit, I was told I must file a motion. It turns out two others have already filed motions in the case and had their requests granted. The MP3s, however, are not disclosed to the public; they are disclosed to the moving party.

I suppose I'll have to decide how badly I want to hear what happened.  I've previously been critical about the obsession over oral argument, and particular about calls for live video of oral argument.

But at least the Supreme Court promptly discloses both the transcript and the audio of oral argument. And so do many circuit courts. So, then, why do three circuits refuse to release oral argument of appellate cases on a routine basis? 

Tenth Circuit considers justiciability of Guarantee Clause today

Today, the Tenth Circuit heard argument concerning the justiciability of the Guarantee Clause in Kerr v. Hickenlooper before a panel (PDF) with Judges Briscoe, Seymour, and Lucero. A district court last year accepted the argument that the Guarantee Clause was at least potentially justiciable.

In 1992, Colorado voters, by initiative, enacted a "Taxpayer Bill of Rights" (TABOR) that prohibits the legislature from raising tax rates or imposing new taxes without voter approval. Plaintiffs recently sued and claimed that the legislature had a kind of inherent right as a republican form of government to control tax increases.

The argument is intriguing. The Guarantee Clause in Article IV of the Constitution requires, "The United States shall guarantee to every State in this Union a Republican Form of Government . . . ." It has never been found justiciable--that is, capable of judicial resolution. In Luther v. Borden, the Supreme Court rejected an opportunity to resolve a dispute as to the proper form of government in Rhode Island under the Guarantee Clause, and that precedent has dramatically limited the universe of possible situations when a judiciary might inject itself into a dispute.

There are several options at the panel's disposal to resolve the case, including a standing issue. But I thought I would examine three points regarding the Guarantee Clause claim in particular. 

I. Defining Justiciability

The Supreme Court in Baker v. Carr offered six factors for considering whether the judiciary could resolve a dispute, or whether it was best left to other political branches. The first point, a "textually demonstrable constitutional commitment of the issue to a coordinate political department," is not as on-point here as it was in Nixon v. United States, when the Court declined to review the impeachment of a federal judge on the basis that the task was "sole[ly]" committed to the House of Representatives.

The second prong, however, is salient: "a lack of judicially discoverable and manageable standards for resolving it." Defining a "Republican Form of Government" is not an easy task, and certainly not one the judiciary has undertaken in over 200 years. 

Further, the narrowness of the question weighs against examining the definition. The defendants who appealed note in their briefs that there are limited sitations in which it might be justiciable--such as if a state instituted a tyranny or a monarchy. But here, the question is whether the legislature has a right to raise taxes absent the popular vote of the people-and, perhaps as a prior question, whether the people can remove a delegated task of certain kinds of taxation from their representatives by initiative and restore it to themselves.

The district court decided that it was too early to decide and denied the motion to dismiss. It explained, the inquiry "reflects the fact that the discussion is premature at this stage of the litigation. Resolving the issue of whether there are judicially discoverable and manageable standards for determining the merits of Plaintiffs’ Guarantee Clause claim would necessarily require this Court to begin to wade into the merits of this dispute." 

To be frank, the court is wrong. Deciding whether there are  standards for adjudicating a Guarantee Clause claim is fundamentally different from deciding whether  those standards were met such that the plaintiffs win. Admittedly, beginning to answer the question of what the law is will very quickly get to the merits issue. But there is no "discovery" that will "reveal" what the Guarantee Clause requires--it is not the kind of thing that should survive a motion to dismiss for further investigation.

I confess that I do not find an amicus curiae brief (PDF) by several law professors much more persuasive. The brief explains:

The briefs submitted by the State and their amici, for example, present arguments about how to interpret the language of the Guarantee Clause. The Response brief provides a set of counterarguments on the same question. Both sides support their arguments with historical evidence and judicial precedent. These arguments are precisely the type that courts regularly consider in interpreting the Constitution. 

That, flatly, cannot be the test. The parties in Nixon disputed whether a court could interpret the word "try," and the parties, of course, each had their own set of arguments about what it means to "try" a party for purposes of impeachment. The Court--while recognizing that the task was left "sole[ly]" to the House--refused to entertain a question of the definition and usurp the role of Congress, and this question of judicially-manageable standards "strengthen[ed] the conclusion" that the matter was left to another branch other than the judiciary.

II. A Guarantee Against Whom?

The parties, several members of the legislature, sued the governor for enforcement of the Guarantee Clause. But the defendants raise an intriguing matter: against whom may the Guarantee Clause be enforced? The defendants note that "The United States" is the one that guarantees a republican form of government. Any enforcement, therefore, must come against the United States, and not against the executive or some other state officer.

It's a point I haven't encountered (and perhaps there is robust discussion of it somewhere), but it is one worth considering.

III. Narrow Guarantees and Broad Guarantees

Circling back to an issue raised in the first point, the breadth or narrowness of the issue matters greatly if it concludes that the Guarantee Clause is justiciable (or when deciding that this specific matter is not justiciable as alleged).

A narrow ruling would address solely the issue in this case--specifically, whether the people could vote by initiative to remove the power to increase taxes from the legislature absent a popular vote. It is not, strictly speaking, that the legislature cannot raise taxes: it is that they cannot do so without popular approval. And it is not that the legislature has lost the power to do so: it lost the power because of a citizen initiative. Narrowly, this issue does not strike me as the kind of "core" definition of "Republican Form of Government," given the fact that the people enacted it by initiative and that the power still exists in a different form.

A broad ruling, however, may call into question the entire initiative regime as it exists in the United States. Initiatives that affect some "core" legislative power--here, tax; elsewhere, the question remains open--may be subject to judicial review.  The specific approach that the court chooses to employ matters greatly. 

There is much to heed in this case, and the Tenth Circuit panel has much to consider. It has already proved a fascinating saga. 

Citizens United in Affordable Care Act litigation, Part IV

Fresh off the heels of yesterday's Part III, here comes Part IV.  A petition for writ of certiorari (PDF) has been filed with the Supreme Court appealing the Third Circuit's decision in an Affordable Care Act case regarding a business alleging a right to religious liberty. The petition invokes Citizens United twice, noting that "other areas of First Amendment law, including the free speech doctrine, recognize that 'First Amendment protection extends to corporations,'" "'for-profit and non-profit.'" (p. 10 & 25)

Citizens United in Affordable Care Act Litigation, Part III

After my first two posts about the link between the Supreme Court's decision in Citizens United  and litigation under the Affordable Care Act, we have a third opinion from a federal circuit court.  The Sixth Circuit, in Autocam Corp. v. Sebelius (PDF), has rejected a First Amendment religious liberty challenge from manufacturing companies. It includes little discussion about Citizens United, but it does mention it.

Autocam’s attempt to fill this void by relying on freedom of speech cases, most notably Citizens United v. Federal Election Commission, is unavailing.  In Citizens United, the Court “recognized that First Amendment protection extends to corporations” and collected a significant number of cases recognizing this rule.  But these cases all arose under the Free Speech Clause. [citing the Third Circuit's opinion on this.] No analogous body of precedent exists with regard to the rights of secular, for-profit corporations under the Free Exercise Clause prior to the enactment of RFRA.  The Free Exercise Clause and Free Speech Clause of the First Amendment have historically been interpreted in very different ways. Id. (tracing the differences in the Court’s treatment of these clauses). Therefore, the Court’s recognition of rights for corporations like Autocam under the Free Speech Clause nearly twenty years after RFRA’s enactment does not require the conclusion that Autocam is a “person” that can exercise religion for purposes of RFRA.

 (some citations omitted)

It's curious that the Sixth Circuit includes the discussion of Citizens United , the First Amendment, and Free Exercise in its interpretation of whether a company is a "person" for purposes of the Religious Freedom Restoration Act. The statutory interpretation question is a fairly different matter than the scope of constitutional protection. I suppose, reading through a bit of the court's awkward analysis, one could argue that because there had been no precedent contemplating the kind of Free Exercise right anticipated in this case prior to Employment Division v. Smith, Congress did not contemplate that kind of right when it enacted RFRA.

Perhaps part of the court's awkward analysis arose because of a decision by the litigants.  Plaintiffs apparently only appealed a preliminary injunction denial on the RFRA claim and did not include a First Amendment claim in the appellate brief.

If that's the case, then the usefulness of Citizens United as analogy drops dramatically, which explains why the court's discussion is brief.

Has Prop 8 litigation permanently undermined California initiatives and the rule of law?

When the voters of California enacted Proposition 8 in 2008, which amended the state Constitution to read, "Only marriage between a man and a woman is valid or recognized in California," litigation ensued. But the executive officials in California tasked with defending the law in court declined. Instead, proponents of the measure intervened to defend the law.

To avoid a lengthy discussion of events that have already occurred, intervenors did defend the law but were found to lack the authority to appeal an adverse judgment. The Supreme Court this year in Hollingsworth v. Perry affirmed that holding.

So, too, did the voters of Los Aneles County enact Measure B in 2012, which required performers in pornographic films to wear condoms. In Vivid Entertainment v. Fielding , a pornographic film studio sought to enjoin enforcement of the measure. In its answer, the County included the following as its first affirmative defense:

Defendants reserve the right to have proponents of Measure B intervene and defend the constitutionality of Measure B in light  of Perry v. Brown.

(Perry v. Brown being the Proposition 8 case in the California Supreme Court that held that initiative proponents have authority to defend the initiative's validity when elected officials so decline.)

Moreover, when Measure B's proponents did move to intervene, the County filed a notice of "non-opposition" and went further, explaining, "Defendants have indicated in their Answer that Measure B's proponents were necessary parties in litigating the constitutionality of Measure B."

Ultimately, the district court  allowed intervention.

I do not live in Los Angeles County, and I make no claim as to the wisdom of such a regulation, but I offer these thoughts. 

An affirmative defense is usually the kind of thing that would exculpate the defendant in the litigation. But I've never run across the possibility of Rule 24 intervention as an affirmative defense, as opposed to, what I suspect may be the case, merely an indirect way for the defendant to signal to the court, to the parties, and to the public how it intends to behave.

Furthermore, initiative proponents are almost assuredly not "necessary" parties in federal court. Among other things, Rule 24 requires that a party have a "substantial legal interest" in the litigation. Borrowing substantial precedent from other cases, merely advocating for a ballot question, absent regulation of the organization itself or its members, and absent members who would personally have a substantial legal interest, is insufficient for Rule 24 intervention. See, e.g., Northland Family Planning Clinic, Inc. v. Cox, 487 F.3d 323 (2007) (rejecting intervention for initiative proponents); Coalition to Defend Affirmative Action v. Granholm, 501 F.3d 775 (6th Cir. 2007) (same).

And although Judge Reinhardt on behalf of a panel in the Ninth Circuit once concluded in 1991, "There appears to be a virtual per se rule that the sponsors of a ballot initiative have a sufficient interest in the subject matter of the litigation to intervene," six years later the Court expressed "grave doubts" in Arizonans for Official English v. Arizona, reiterated by the Court in Hollingsworth, about the analysis .

Admittedly, in many of these cases, the existing parties may well represent the interests of the absent organizations, particularly as they were not abstaining from defending the law.  But that is another prong of the analysis, not one that can overcome the requirement that a party seeking to intervene assert a substantial legal interest.

But, worse than this pair of misguided statements of procedure, California has now incentivized public officials to disclaim defense of initiatives and turn over their public duties to private citizens. 

It is understandable, of course, that public officials would regularly not be enthused with the results of a popularly-enacted initiative. Such direct democracy often occurs because the ordinary legislative channels have failed to enact the very law that the people have just enacted. 

But now public officials have begun to evade their duties, and their oath, to uphold the law, outsourcing the task to roving citizens' groups to take on their job. 

Perhaps the refusal of a public official to defend a popular initiative should trigger an immediate recall election--although, admittedly, the enforceability of defining "refusal" may be problematic. But if the public officials of a state intend to stop enforcing laws enacted by initiative, then the initiative process itself may well be permanently undermined in California.

Citizens United in Affordable Care Act litigation, Part II

Following up on my earlier coverage of the 10th Circuit's opinion citing Citizens United v. Federal Election Commission, the 3d Circuit has concluded that Citizens United  does not compel a finding that a for-profit corporation can exercise religion. Here are excerpts from the majority's opinion (at Part IV.A):

Citizens United is thus grounded in the notion that the Court has a long history of protecting corporations' rights to free speech. 

... 

We must consider the history of the Free Exercise Clause and determine whether there is a similar history of courts providing free exercise protection to corporations. We conclude that there is not. In fact, we are not aware of any case preceding the commencement of litigation about the Mandate, in which a for-profit, secular corporation was itself found to have free exercise rights. Such a total absence of caselaw takes on even greater significance when compared to the extensive list of Supreme Court cases addressing the free speech rights of corporations.

(I interject here to remark that this line of reasoning does not strike me as terribly persuasive. First, there are numerous instances in which the absence of judicial precedent is not a justification for rejecting the argument of the parties. This distinction strikes me as too narrow a reading of Citizens United . It may be that the two are distinguishable, but absence of precedent is not among them. Second, by asserting that the corporation is "secular," it's hard to get around the conclusion that the majority opinion has, in circular fashion, presumed the conclusion.)

We are unable to determine that the "nature, history, and purpose" of the Free Exercise Clause supports the conclusion that for-profit, secular corporations are protected under this particular constitutional provision. Even if we were to disregard the lack of historical recognition of the right, we simply cannot understand how a for-profit, secular corporation--apart from its owners--can exercise religion. . . .

In urging us to hold that for-profit, secular corporations can exercise religion, Appellants, as well as the dissent, cite to cases in which courts have ruled in favor of free exercise claims advanced by religious organizations. See, e.g. , Gonzalez v. O Centro Espirita Beneficente Uniao Do Vegetal ; Church of the Lukumi Babalu Aye, Inc. v. Hialeah . None of the cases relied on by the dissent involve secular, for-profit corporations. We will not draw the conclusion that, just because courts have recognized the free exercise rights of churches and other religious entities, it necessarily follows that for-profit secular corporations can exercise religion. As the Supreme Court recently noted, "the text of the First Amendment . . . givees special solicitude to the rights of religious organizations." Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC . That churches--as means by which individuals practice religion--have long enjoyed the protections of the Free Exercise Clause is not determinative of the question of whether for-profit, secular corporations should be granted these same protections.

(some citations omitted) 

(I interject again with two problematic point in this reasoning. First, the majority concludes that even though courts have recognized X, "[w]e will not draw the conclusion" that "it necessarily follows" that the courts will recognize Y. That may be true, but that does not explain why the two should be treated differently--except, as noted earlier, courts haven't done so previously, which is just restating a fact and is not a justification. Second, the majority does not claim that "churches" exercise religion, but that "churches" are a "means by which individuals practice religion"; but, in the paragraph before that, it claims that it "cannot understand how a for-profit, secular corporation--apart from its owners--can exercise religion." The distinction between whether members of a corporate form, whether a church or a for-profit corporation, can exercise religion within that corporate form is not readily explained in the majority's opinion, except that the church is the more common form for the exercise of religion.)

Since Conestoga is distinct from the Hahns, the Mandate does not actually require the Hahns to do anything. All responsibility for complying with the Mandate falls on Conestoga. Conestoga "is a closely-held, family-owned firm, and [we] suspect there is a natural inclination for the owners of such companies to elide the distinction between themselves and the companies they own." But, it is Conestoga that must provide the funds to comply with the Mandate—not the Hahns. We recognize that, as the sole shareholders of Conestoga, ultimately the corporation‘s profits will flow to the Hahns. But, "[t]he owners of an LLC or corporation, even a closely-held one, have an obligation to respect the corporate form, on pain of losing the benefits of that form should they fail to do so." "The fact that one person owns all of the stock does not make him and the corporation one and the same person, nor does he thereby become the owner of all the property of the corporation." The Hahn family chose to incorporate and conduct business through Conestoga, thereby obtaining both the advantages and disadvantages of the corporate form. We simply cannot ignore the distinction between Conestoga and the Hahns. We hold . . . that the free exercise claims of a company‘s owners cannot "pass through" to the corporation.

 (citations omitted)

(This holding is expressly contrary to the logic--but, admittedly, not the holding--articulated in Citizens United , where the majority concluded that the regulation, if allowed, "would permit Government to ban political speech simply because the speaker is an association that has taken on the corporate form.") 

There are other excerpts, and a dissenting opinion addressing the matter, if you're interested in reading the whole 96-page opinion.