So the Supreme Court has granted cert in the Sebelius v. Hobby Lobby, Inc. and Conestoga Wood Specialties Corp. v. Sebelius cases. In both of these cases, for-profit corporations are challenging the application of the birth control coverage employer mandates of the Affordable Care Act on the grounds that these mandates violate the religious freedoms of the corporate employers. Presumably, at least some members of the Court are eager to extend religious rights to business corporations just as they extended political rights to business corporations in Citizens United v. Federal Election Commission.
Of course, forty years ago in Sierra Club v. Morton, the Supreme Court refused acknowledge that the Sierra Club, a corporation chartered for the purpose of preserving the Sierra Nevada mountains, could have a cognizable interest in preserving the environment of the Sierra Nevada mountains. Based on that reasoning, the Court denied the Sierra Club Article III standing — the right to sue in court to protect environmental interests – relegating the Sierra Club to acting as a conduit for its members. Based on this precedent, the DC Circuit once suggested that the idea of a business corporation asserting environmental interests for standing purposes “is beyond the reach of legal fiction and belongs in the realm of poetic license.” According to the DC Circuit in Citizens Coordinating Committee v. Washington Metropolitan Transit Authority, “Though a corporation is a person for some purposes, we would be most reluctant to hold that it has senses and so can be affronted by deteriorations in its environment.”
That’s not the only possible view, however. In his famous dissent in Sierra Club, where he argued that rocks, rivers, and trees should have environmental standing (as well as corporations), Justice Douglas also pointed out that corporate parties have exactly those legal interests embodied in their charters, and made reference to “corporations sole” that embodied individual religious and political offices.
Justice Douglas got it exactly right. Corporations are creatures of the state and have exactly those rights and interests that are embodied in their corporate charters. So if the Supreme Court is ready to recognize religious freedoms on the part of corporations whose charters authorize them to carry out business for profit (and nothing else), then certainly the same court will be ready to revisit the Sierra Club case and recognize that a not for profit corporation organized specifically to protect environmental values can assert environmental and aesthetic initerests in court. Not.