Chief Justice Roberts: Do Corporations Have A Race?

The Supreme Court heard oral argument today in the Hobby Lobby and Conestoga Wood cases on the question of whether for-profit corporations — including, as here, closely held companies organized around and operating on the basis of strong religious convictions — could claim protection under the Religious Freedom Restoration Act from government coercion.

It was a rich and highly partisan debate that, in all probability, will be decided by how Justice Kennedy makes up his divided mind.

A transcript of the oral argument is here, and you won’t be bored by reading the whole thing. My favorite parts were questions from Justice Sotomayor (or rather, the answer I would have given to her question) and Chief Justice Roberts.

Justice Sotomayor asked, (p. 17), thinking she’d come up with a Gotcha!, “How does a corporation exercise religion?” Attorney Clement responded that it was common for courts to inquire into the intent of corporations and even the sincerity of those intentions, but a simpler answer would be: “By refusing to engage in activities that it regards as immoral or contrary to its religious beliefs.”

Chief Justice Roberts asked what struck me as the best question of the day, provoking the following exchange with Solicitor General Verrilli (pp. 53-54).  After observing that “eight courts of appeals, every court of appeal to have looked at the situation have held that corporations can bring racial discrimination claims as corporations,” the Chief Justice asked:

Now, does the government have a position on whether corporations have a race?

GENERAL VERRILLI: Yes. We think those are correct and that this situation is different.

CHIEF JUSTICE ROBERTS: So that — so that a corporation does have a race for purposes of discrimination.

GENERAL VERRILLI: No, not that the corporation has a race, but that corporations can bring those claims. But you’re not interpreting — in that situation, all you’re interpreting is the word “person” in a statute, not exercise of religion, which is what makes it different here.

CHIEF JUSTICE ROBERTS: So those — those cases involve construction of the term “person”

GENERAL VERRILLI: Yes, but only “person.”

CHIEF JUSTICE ROBERTS: So the person — the corporation can bring as a person a claim of racial discrimination.

GENERAL VERRILLI: That’s correct, but not exercise of religion.

I would like to conclude with a zinger here — something along the lines of nothing surprising here; liberals simply don’t care very much about religion or discrimination based on religion — but I can’t think of anything that tops this exchange standing alone.