Move Over, Abortion? Religious Freedom Is the New Battleground for 'Personhood'
All pending cases seek to overturn only the employer mandate at most. But Duncan says a narrower ruling would be fine, even if it means that the Court settles the claims by creating an exemption under RFRA rather than setting a precedent for corporations' religious rights under the First Amendment.
"A win against the mandate would be ensuring that it cannot apply to religious objectors," he said.
A lurking danger?
But Friedman says the suing corporations could face a problem down the road if they argued too strongly that the owners' religious values and the company's religious values are naturally one and the same. One major reason business owners form corporations, he notes, is to avoid connecting themselves too much to the companies for purposes of liability. To ask courts to view the owners and their corporations as synonymous is known as "piercing the corporate veil"—which he says could be dangerous for smaller employers who align themselves too closely with their companies.
If an owner pierces the corporate veil to avoid covering contraceptives, he or she risks being held responsible if the company were to go bankrupt or face charges of fraud, Friedman says.
Similarly, the Oklahoma District Court maintained the view that a corporation and its owners should be viewed separately when the court ruled to deny Hobby Lobby's claim for a preliminary injunction in November 2012.
The court stated, "General business corporations do not, separate and apart from the actions or belief systems of their individual owners or employees, exercise religion. … Religious exercise is, by its nature, one of those 'purely personal' matters … which is not the province of a general business corporation."
But Eric Rassbach, deputy general counsel for the Becket Fund, says "piercing the corporate veil" may not be the right analysis. When a person or family chooses to organize as a corporation, he or she takes advantage of limited liability protections created by state law for a specific purpose: to encourage financial investment.
"There's no reason to think that because you take advantage of state level rights you are deprived of your constitutional and federal rights [to free religious exercise]," Rassbach said. "The limited liability protections will limit financial liability, not liability for how an owner invests his values."
Matt Bowman, general counsel at Alliance Defending Freedom, agrees.
"The 'corporate veil' is not a 'moral veil.' It's a limited legal veil," he said. "A mandate on [a family's] business is a moral requirement for them personally.That has no implication on the legal liability that is limited in a corporate form."