In a terse and unsatisfying opinion, the United States Court of Appeals for the Sixth Circuit has held that “secular, profit-seeking” corporations have no standing to sue under the Religious Freedom Restoration Act. The plaintiffs, Roman Catholic owners of a closely held corporation that manufactures automotive and medical products, alleged that the HHS Contraception Mandate violated their religious free exercise under RFRA. After holding that the individual plaintiffs did not have standing, the court said this about the corporation’s standing:

Looking to RFRA’s relevant context, we find strong indications that Congress did not intend to include corporations primarily organized for secular, profit-seeking purposes as “persons” under RFRA. Again, Congress’s express purpose in enacting RFRA was to restore Free Exercise Clause claims of the sort articulated in Sherbert and Yoder, claims which were fundamentally personal . . . .

While the Supreme Court has recognized the rights of sole proprietors under the Free Exercise Clause during this period, it has never recognized similar rights on behalf of corporations pursuing secular ends for profit . . . .

Moreover, the Supreme Court has observed that the purpose of the Free Exercise Clause “is to secure religious liberty in the individual by prohibiting any invasions thereof by civil authority.” Sch. Dist. of Abington Twp., Pa. v. Schempp, 374 U.S. 203, 223 (1963) (emphasis added); see also Conestoga, 2013 WL 3845365, at *5 (“[W]e simply cannot understand how a for-profit, secular corporation–apart from its owners–can exercise religion.”).

Where to begin? The court recognizes that its emphasis on religious freedom that is “personal” or “individual” has, in fact, been totally irrelevant in many, many cases involving the Free Exercise Clause and RFRA in which the plaintiff corporations have prevailed. So why emphasize it? The distinction can do nothing by itself to justify the outcome, and the court seems to say as much.

“Personal” vs. “Group or Corporate” is doing no work here. Instead, there are two phrases that ground the decision: “secular” and “profit-seeking.” And, as I have said before, if courts are to deny religious freedom claims by corporations on these grounds–on the ground of a distinction between the secular and the religious, on the one hand, or of a distinction between profit-seeking and non-profit-seeking, on the other–then they will need to develop a theory of what “secular” means, and what “religious” means, and why the distinction matters in law. Or, they will need to make arguments about what precisely the difference is between “for profit” and “nonprofit” in this context and why it matters.

I should say straightaway that there may well be a discussion to be had, and arguments to be made, about the legal significance of the distinction between the “secular” and the “religious.” I recommend especially much of Steven D. Smith’s recent work on this issue, including this article. But there is not a single word in this decision about that distinction. Likewise, there is nothing about the conceptual distinction between for-profit and nonprofit in this specific context and its import (there is, at the end of the decision, a dubious interpretation of RFRA’s legislative history, but there is nothing of the sort of conceptual work that would be necessary to sustain a holding of this kind).

The Sixth Circuit joins the Third Circuit in reaching this result. Both courts are at odds with the Tenth Circuit. The case is Autocam Corp. v. Sebelius.