I have long pondered the question of whether a for-profit business corporation ought to be afforded standing under the Free Exercise Clause.  The issue has not been addressed at length in the case law – in fact, those rare courts to have been presented with it have usually found a way to side-step the issue and resolve the matter on other grounds.

I certainly believe the argument for such standing is stronger than ever in the wake of Citizens United, which afforded for-profit corporations the full protections of the First Amendment’s free speech rights.

If the Supreme Court fails to strike down ObamaCare (a decision which should be arriving any day now), it may have to address this question.  For a handful of plaintiffs in the lawsuits against ObamaCare’s contraceptive / sterilization / abortiofacient mandate consist of for-profit business corporations that are pressing free-exercise claims.

Last week, in its briefing on its motion to  dismiss, the government in these cases argued that the for-profit corporate plaintiffs do not have standing to assert free exercise claims.

But why not?  For-profit unincorporated entities have standing to assert such claims, and so do nonprofit incorporated entities.  As such, excluding for-profit incorporated entities from the party appears a bit arbitrary.

Certainly, such entities may have problems with regard to the questions of proof: do they actually embrace a religious persona that entitles them to make a free-exercise claim.  But were the able to make such a showing (as certainly many could make, and the ObamaCare mandate plaintiffs do make), why should they categorically be excluded from making such claims?

Many will respond that the difference lies in the fact that the business corporation is organized to make a profit.  But that can’t be the distinguishing factor.  For-profit unincorporated entities have free exercise standing.  And even non-profits are often profit-making, profit-driven entities (consider Harvard University, for example).

In fact, thanks in large part to the “corporate social responsibility” movement, the modern for-profit business corporation is not solely focused on profitability.  The modern for-profit business corporation is expected to act in very human ways: ethically, morally, and responsibly.  I suggest that this humanization of the corporation further strengthens its claim to free exercise standing.