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Four Corporate Power-Grabs That Got the Thumbs Up from Federal Courts

Corporate power keeps growing beyond the world of Citizens United.
 
 
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Court-awarded corporate power is growing beyond the world of campaigns and elections, often at the expense of individual rights and Americans' ability to bring businesses to court.

A handful of recent decisions highlight this less-watched area of corporate clout. In two rulings this year, federal courts have concluded that secular for-profit businesses have First Amendment religious rights. In another ruling, a business that challenged its inclusion in a federal consumer product complaint database won and then successfully sealed federal court records, with the judge saying that protecting the firm’s economic reputation was a higher constitutional priority than keeping court records public.

In other instances, federal courts have upheld arbitration agreements that customers must sign for a range of services that include daily necessities, blocking people from going to court when disputes arise. And in the patent law arena, a range of individuals -- from farmers who want to protect their seed stock to health advocates concerned about privatized cancer research -- have been losing to corporations that have patented seeds and even human genes.

These four developments go beyond the universe of corporate political speech, which the U.S. Supreme Court expended in its 2010 Citizens United ruling. They also go beyond recent commercial speech cases, where pro-business judges have rejected government efforts to label milk containing man-made hormones, replace text warnings in cigarette boxes with graphic images and place radiation warnings in cellphone packaging.

1. Corporate Religious Freedom?

In early November, a U.S. District Court judge in Detroit became the second federal judge this year to rule that a secular, profit-making business did not have to include coverage for birth control in employee health plans, as required by the Affordable Care Act because of the business owner’s religious beliefs. A similar ruling was made by a federal district judge in Colorado this past July, who wrote, “Can a corporation exercise religion?” He concluded that it could, under some circumstances.

Courts have long held that religious organizations can exercise religious beliefs under the First Amendment. But at least until the early 1990s, the U.S. Supreme Court said people in the secular world had to follow most laws regardless of their religion. But Congress disagreed and in 1993 passed the Religious Freedom Restoration Act, which set a new and higher legal threshold for laws that burden religious beliefs. Fast-forward to today and the three-dozen lawsuits filed by individuals, businesses, hospitals and universities challenging Obamacare’s contraception requirement, and what emerges is a deepening legal battle over exercising religious rights in the workplace.

“It represents an ominous legal trend,” wrote the Atlantic’s Wendy Kaminer, after the Colorado ruling. “If the rights of diverse empoylees in a secular enterprise are subject to the beliefs of their employers, then religious people will not simply be laws unto themselves; they’ll determine, in part, laws governing the rest of us.”

The issue is hardly settled, as two other U.S. District Courts this year rejected religious freedom arguments from businesses. In one one of those rulings, a St. Louis case, Judge Carol Jackson said that company owners “remain free to exercise their religion, by not using contraceptives and by discouraging employees from using contraceptives.”

“Can a corporation have religious beliefs?” asked Timothy Jost, a specialist in health law at Washington and Lee University School of Law, who wrote about the Colorado ruling for healthaffairs.org. “I don’t think so. But others will disagree.” Indeed, conservative legal scholars are already doing that. “Failure to recognize the religious liberty rights of the business corporation means failure to fully recognize the religious liberty rights of flesh-and-blood human beings,” concluded Ronald Colombo, Hofstra University School of Law professor, in a recent academic paper. “For without the recognition of such corporate rights, authentically religious for-profit institutions could not exist.”

 
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