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Non-Prophets: Why For-Profit, Secular Corporations Cannot Exercise Religion Within the Meaning of the First Amendment

Under the Patient Protection and Affordable Care Act, employers are required to provide their employees with insurance coverage for contraceptives.  The regulations provide certain exemptions, but those exemptions explicitly do not apply to for-profit organizations.  As a result, for-profit corporations run by religious owners have filed nearly fifty lawsuits, arguing that the contraceptive mandate violates their free exercise rights under the First Amendment and the Religious Freedom Restoration Act.  Lower courts are split as to whether for-profit, secular corporations can exercise religion, and the Supreme Court has never directly ruled on this issue.  However, two cases before the Court this term provide it with an opportunity to address this issue for the first time.

This Note argues that for-profit, secular corporations cannot exercise religion within the meaning of the First Amendment because, while religious owners may run a corporation in accordance with a particular set of religious beliefs, the corporation itself is incapable of holding such a belief.  This Note explains why this conclusion comports with the First Amendment and with Supreme Court precedent regarding the extension of constitutional guarantees to corporations.  Finally, this Note shows why the pass-through instrumentality theory is deeply flawed and, therefore, why for-profit, secular corporations may not assert the free exercise rights of their owners.

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