The appeals court looked carefully to the precedent created by Citizens United—the 2010 case affording corporations free-speech rights when it came to election-related speech—to determine whether corporations also enjoy constitutionally protected religious freedom. Writing for the two judges in the majority, Judge Robert Cowen found that although there was “a long history of protecting corporations’ rights to free speech,” there was no similar history of protection for the free exercise of religion. “We simply cannot understand how a for-profit, secular corporation—apart from its owners—can exercise religion,” he concluded. “A holding to the contrary … would eviscerate the fundamental principle that a corporation is a legally distinct entity from its owners.”

Cowan also flagged the absolute novelty of the claims, noting that there was almost no case law suggesting that corporations can hold religious beliefs. “We are not aware of any case preceding the commencement of litigation about the Mandate, in which a for-profit, secular corporation was itself found to have free exercise rights.” Finally he took pains to distinguish the corporation, Conestoga, from its legal owners. “Since Conestoga is distinct from the Hahns, the Mandate does not actually require the Hahns to do anything. … It is Conestoga that must provide the funds to comply with the Mandate—not the Hahns.”

Judge Kent Jordan, dissenting at length in the case, said that for-profit, secular corporations can surely avail themselves of the protections of the religion clauses. “To recognize that religious convictions are a matter of individual experience cannot and does not refute the collective character of much religious belief and observance … Religious opinions and faith are in this respect akin to political opinions and passions, which are held and exercised both individually and collectively.”

The 3^rd Circuit decision creates a significant split between the appeals courts, because a few short weeks earlier, the Colorado-based 10^th U.S. Circuit Court of Appeals ruled in favor of Hobby Lobby Stores Inc., finding by a 5–3 margin that corporations can be persons entitled to assert religious rights. Hobby Lobby is a chain of crafts supply stores located in 41 states. The 10^th Circuit upheld an injunction blocking the contraception requirement because it offended the company owners’ religious beliefs. The majority in the 3^rd Circuit wrote that it “respectfully disagrees” with the 10^th Circuit. A split of this nature makes Supreme Court review almost inevitable.

The Supreme Court has long held the free exercise clause of the First Amendment to prohibit governmental regulation of religious beliefs, but a long line of cases holds that not every regulation that inflects upon your religious beliefs is unconstitutional. The Religious Freedom Restoration Act bars the federal government from imposing a “substantial burden” on anyone’s “exercise of religion” unless it is “the least restrictive means of furthering [a] compelling governmental interest.” The Obama administration and the judges who have refused to grant injunctions contend that the burden here is insignificant, amounting to a few dollars borne indirectly by the employer to facilitate independent, private decisions made by their female employees. They also argue that they are promoting a compelling government interest in providing preventive health care to Americans. The employers and the judges who have enjoined the birth-control provision claim that they are being forced to choose between violating protected religious beliefs and facing crippling fines and that free or inexpensive birth control is available at community health centers and public clinics.

Basically, the constitutional question will come down to whether a for-profit, secular corporation can hold religious beliefs and convictions, or whether—as David Gans explains here —“the Court’s cases recognize a basic, common-sense difference between living, breathing, individuals—who think, possess a conscience, and a claim to human dignity—and artificial entities, which are created by the law for a specific purpose, such as to make running a business more efficient and lucrative.” Will Baude takes the opposite view, explaining that the 3^rd Circuit’s reasoning—that “ ‘corporations have no consciences, no beliefs, no feelings, no thoughts, no desires’ … would all prove too much, because they are technically true of any organizational association, including … a church!” Baude likens the claim that corporations can never have religious freedom rights to the claim that corporations—including the New York Times—can never have free-speech rights.

Part of the problem, at least in the case of Hobby Lobby and Conestoga, is that neither corporation was designed to do business as religious entities. It has been clear since the nation’s founding that corporations enjoy rights in connection to the purposes for which they were created—which is why the administration already exempts religious employers whose purpose is to inculcate religious values and chiefly employ and serve people who share their religious tenets. This is about companies that don’t meet those criteria. As the dissenters at the 10^th Circuit observed, the fact that some “spiritual corporations” have some religious purposes doesn’t make every corporation a religious entity. And as professor Elizabeth Sepper of Washington University puts it in a new law-review article on the subject: “Corporations, as conglomerate entities, exist indefinitely and independently of their shareholders. They carry out acts and affect individual lives, and have an identity that is larger than their constituent parts. Walmart is Walmart, even when Sam Walton resigns.”

The rest of the problem is self-evident. Where does it stop? Why does your boss’ religious freedom allow her to curtail your own? The dangers in allowing employers to exercise a religious veto over employee health care are obvious. Can an employer deny you access to psychiatric care if he opposes it on religious grounds? To AIDS medications? To gelatin-covered pills? Constitutional protections of a single employer’s individual rights of conscience and belief become a bludgeon by which he can dictate the most intimate health decisions of his workers, whose own religious rights and constitutional freedoms become immaterial.