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.