What is a Person?
Lisa Soronen
State and Local Legal Center
LSSS & RACSS Professional Development Seminar
October 6-8, 2014
Richmond, VA
Context please…
In Citizens United v. FEC the Court held 5-4 that corporations and unions have a First
Amendment right to make unlimited independent expenditures supporting or opposing federal
candidates for office
Citizens United feared that paying to make Hillary on-demand within 30 days of the primary
would violate the Bipartisan Campaign Reform Act which prohibits corporations and unions from making
independent expenditures that are “electioneering communication”
Court concluded that the First Amendment protects corporations in the context of political
speech
Overruled Austin v. Michigan Chamber of Commerce which held that political speech could be
banned based on a speaker’s corporate identity
Went on to reject three reasons to justify corporate-speech restrictions: anti-distortion, anticorruption, and shareholder protection
Passionate dissent: “The basic premise underlying the Court's ruling is its iteration, and constant
reiteration, of the proposition that First Amendment bars regulatory distinctions based on a speaker's
identity, including its "identity" as a corporation. While that glittering generality has rhetorical appeal, it
is not a correct statement of the law. . . . The conceit that corporations must be treated identically to
natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court's
disposition of this case.”
Bottom line: the Daily Show/Cobert Report/Mitt Romney “Corporations are people” is a slight
overstatement. As a result of Citizens United they have First Amendment political speech rights like
natural people do.
In Burwell v. Hobby Lobby the Court held 5-4 that the Affordable Care Act’s birth control
mandate violates the Religious Freedom Restoration Act (RFRA), as applied to closely held corporations.
Three closely held corporations objected on religious ground to providing employees two
morning after pills and two IUDs as required by the Affordable Care Act’s regulations.
RFRA prevents the federal government from substantially burdening a person’s exercise of
religion unless the action is the least restrictive means of serving a compelling government interest.
FRFA does not define the term person. The Court therefore applied the Dictionary Act’s
definition of person, which includes corporations, to RFRA.
The Court then noted that corporations can and do a lot of thing other than just try to make a
profit including exercise religion.
The burden to these corporations for not offering health insurance with birth control (over $500
million a year) or dropping coverage (about $30 million a year) is substantial.
The Court assumed providing cost-free contraception is a compelling state interest.
According to the Court, the birth control mandate isn’t the least restrictive option: the federal
government could pay for the birth control or closely held corporations could receive the same
exemption religious nonprofits receive (coverage is offered to employees but the health insurance
company must pay for it).
Why did the SLLC file an amicus brief in this case?
Though not obvious, this case may have a significant impact on land use regulation.
RFRA provides that the federal government “shall not substantially burden a person’s exercise
of religion.” The Religious Land Use and Institutionalized Persons Act (RLUIPA) bars state and local
governments from enforcing land use regulations that substantially burden “the religious exercise of a
person.”
So, FRFA and RLUIPA are related statutes. But FRFA only applies to the federal government, and
RLUIPA only applies in the land use and institutionalized persons’ context. Both apply to “persons.”
If for-profit corporations are “persons” under RFRA they are also likely “persons” under RLUIPA.
As Justice Ginsburg points out in her dissenting opinion quoting the SLLC’s amicus brief, this will have
negative consequences for state and local government: “[I]t is passing strange to attribute to RLUIPA
any purpose to cover entities other than ‘religious assembl[ies] or institution[s].’ That law applies to
land-use regulation. To permit commercial enterprises to challenge zoning and other land-use
regulations under RLUIPA would ‘dramatically expand the statute's reach’ and deeply intrude on local
prerogatives, contrary to Congress' intent. Brief for National League of Cities et al. as Amici Curiae 26.”
The SLLC’s amicus brief focused exclusively on how “person” should be defined in RLUIPA. It
discussed at the practical difficulties that will arise for state and local governments if corporations are
“persons” under RLUIPA. “Interpreting RLUIPA to protect for-profit, secular corporations would
dramatically expand the statute's reach. For-profit corporations could avail themselves of RLUIPA's
broad definition of religious exercise to characterize secular commercial activity as religious in nature.
They would have an incentive to do so to gain a competitive advantage in the marketplace. The likely
result would be a dramatic increase in the number of for-profit corporations claiming to engage in
‘religious exercise,’ with a concomitant increased burden on local governments administering land use
regulations.”
Why should LSSS care about this case?
Corporations as “persons” under RFRA wasn’t a foregone conclusion.
This case has no direct impact on state legislation—the federal Dictionary Act is being applied.
But, “persons” is used all the time in state legislation, right?
Most states have statutory construction statutes. In those statutes the definition of person typically
includes corporations.
Do legislatures always want to include corporations when they use the term “person”?
Under the federal law, the Dictionary Act applies unless the “context indicates otherwise.”
When does the “context indicate otherwise”?
Hobby Lobby majority: Nothing in FRFA suggests a Congressional intent to depart from the
Dictionary Act; HHS concedes and precedent indicates non-profits can bring RFRA claims; “No known
understanding of the term “person” includes some but not all corporations.”
Hobby Lobby dissent: Pre-Smith free exercise cases law (which RFRA was intended to restore)
did not recognize corporations as “persons.” “Had Congress intended RFRA to initiate a change so huge,
a clarion statement to that effect likely would have made it in the legislation.” The reason the Court has
recognized religious non-profits as “persons” under RFRA is they foster the interests of persons
subscribing to the same faith—which is not true of for-profit corporations.
Most state laws use language similar to the “context indicates otherwise” to describe when their state’s
statutory construction statutes do not apply.
How should a statute be written so it is possible to tell from its context that a state’s generic definition
of person not apply? Other than explicitly saying it does not apply or it defining the term person.
Beyond person
Your state’s statutory construction statutes may include other definitions that legislators do not want
applied all the time. The federal Dictionary Act is actually very brief.
Dictionary Act, 1 U.S.C § 1 (1947)
In determining the meaning of any Act of Congress, unless the context indicates otherwise—
words importing the singular include and apply to several persons, parties, or things;
words importing the plural include the singular;
words importing the masculine gender include the feminine as well;
words used in the present tense include the future as well as the present;
the words “insane” and “insane person” shall include every idiot, insane person, and person non
compos mentis;
the words “person” and “whoever” include corporations, companies, associations, firms, partnerships,
societies, and joint stock companies, as well as individuals;
“officer” includes any person authorized by law to perform the duties of the office;
“signature” or “subscription” includes a mark when the person making the same intended it as such;
“oath” includes affirmation, and “sworn” includes affirmed;
“writing” includes printing and typewriting and reproductions of visual symbols by photographing,
multigraphing, mimeographing, manifolding, or otherwise.