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Publication Date

2014

Abstract

Incorporated churches, mosques, synagogues, and the like enjoy the same protection as individuals under the Free Exercise Clause of the First Amendment. What about corporationsthat strive to follow religiousprinciples while earning profits? Do these corporations possess free exercise rights? This question has surfaced in response to a provision in the Affordable Care Act requiring employment- based group health plans to provide health insurance coverage for certain FDA-approved contraceptive methods. Numerous for-profit corporations that adhere to religious faiths that consider these contraceptive methods sinful have challenged the ACA provision as an undue burden on their free exercise because it forces them to provide medical products and services that are antithetical to their religious commitments. These challenges beg the question: Are for- profit corporations entitled to protection under the Free Exercise Clause to begin with?

This Note considers how the meaning of incorporation over time demonstrates that modern for-profit corporations merit free exercise protection. In considering the issue, this Note sets forth an interpretive method labeled "functional constructionism." Functional constructionism posits that as societal changes spur novel questions of constitutional meaning, these questions should be resolved by considering traditional understanding, relevant constitutional precedent, and most importantly, modern realities. Applying this method, this Note examines how the historical development of corporations from the adoption of the Bill of Rights to the present, and key Supreme Court precedent elevating the stature of corporations under the Constitution over the same span of time, depict the modern corporation as an entity worthy of free exercise protection.

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