Perhaps it's a minor point, and I'm very reluctant ever to disagree with Chip!, but neither Braunfeld nor Lee involved free exercise claims by businesses, let alone corporations. The free exercise claims in each case were brought by and on behalf of the individuals who owned the businesses, alleging burdens on their own religious exercise (and, I believe, the exercise of the employees in Lee, as well, if memory serves).
No one disputes that in Hobby Lobby and other like cases, the individual owners have alleged burdens on their own religious exercise. But there are serious questions whether those burdens are ameliorated to a material degree by their choice to incorporate (thus shifting all liabilities and duties to the corporation); and, as I understand it, another serious question whether, as a matter of corporations law, the owners have abandoned their right to assert personal religious liberty claims by incorporating (bitter with the sweet, etc.). In any event, even if the right answer is that the Greens' own RFRA claims are viable, that does not begin to answer the question whether the for-profit corporation itself can sue for an alleged burden on *its *religious exercise. FWIW, I find it very difficult to understand how a for-profit corporation can assert the sort of claim at issue in these cases, namely, that compliance with the law would force them to violate a religious obligation. For-profit corporations, as such, don't have any religious obligations, far as I know. On Mon, Aug 5, 2013 at 8:57 PM, Ira Lupu <icl...@law.gwu.edu> wrote: > RFRA is designed to codify the pre-Smith free exercise law. That law > includes Braunfeld and Lee, both of which involve free exercise claims by > for-profit businesses. Neither opinion even hints at the idea that such > enterprises cannot raise claims under the free exercise clause. That is far > more persuasive on the point than any undisclosed legislative history of > RLPA. So Jim Oleske's comments on this are just spot-on. Of course, this > analytic approach does not answer the separate question re: corporate free > exercise claims. But Lee's dictum is NOT just about taxes; it is about > expectations and equities of employers and their employees. > > There is a deeper point lurking here. How does a statute like RFRA > "codify" the nuances of opinions like Lee (with its suggestion that > commercial businesses must accept ordinary market regulation), or Yoder, > which so heavily emphasizes the particular historical and cultural > characteristics of the Old Order Amish? Shameless plug for ancient work -- > I wrote about this problem in 1992, in a piece (in the Va. L. Rev.) > entitled "Statutes Revolving in Constitutional Law Orbits," where I > discussed the problems of interpreting statutes designed to codify judicial > opinions in constitutional cases. The article uses RFRA (not yet enacted) > as a prime example of the problem. > > One more point about RFRA --no one showed up to oppose it in 1991 or 1992. > Even in 1993, the only opposition was from state AG's, concerned about > prisons. I was (and remain) a RFRA skeptic. I testified (at a House > subcommittee hearing) in 1992 that RFRA was unconstitutional as applied to > the states, and that it "over-restored" free exercise principles (e.g., > protected military personnel in ways that Goldman v. Weinberger precluded' > likewise prisoners in light of O'Lone.)). The RFRA proponets at that > hearing treated me like a skunk at a garden party. I think members of > Congress were aware of none of the nuances we have been discussing. So > figuring out the statutory meaning re: covering for-profit corporations is > an exercise in complete futility. No intent was formed on this question, > and federal statutory definitions make a corporation a person unless the > context indicates otherwise. Does it? > > > On Mon, Aug 5, 2013 at 8:10 PM, Perry Dane <d...@crab.rutgers.edu> wrote: > >> Just a couple of points on the relevance of Lee: >> >> First, I agree with James Oleske that fitting Lee into the analysis is >> important. I was more concerned in my short comment ( >> http://ssrn.com/abstract=**2296635 <http://ssrn.com/abstract=2296635> ) >> to make the point that questions such as the for-profit status of the >> employer should be addressed as part of the compelling interest analysis >> rather than at the threshold. >> >> Second, as to that compelling interest analysis: The quoted line from >> Lee needs to be understood, it seems to me, in the light of the Court's >> more general point about the government's compelling interest in collecting >> social security (and other) taxes. As I point out in my comment, >> governmental interest in the religion-based exemptions context should >> usually be measured "at the margin" and not in toto. Sometimes, though, >> the government has an interest, even at the margin, in applying a given >> rule in all cases. The Court in Lee held that the government had a >> compelling interest, not only in collecting taxes from Lee as such, but in >> maintaining a "comprehensive" system with "mandatory and continuous >> participation." This makes some sense, not only for actuarial reasons, but >> because (I extrapolate here) rendering the tax in some sense "voluntary" >> would make it more difficult to enforce it against everybody else. (Folks >> who are being told to pay money to the government justifiably resent it >> when other folks get a pass.) Moreover, as the Court pointed out, lots of >> religious groups object to lots of different expenditures to which tax >> revenue is applied, so that allowing an exemption would open a real >> floodgate. Given that systemic interest, the Court concluded that trying >> to carve out a constitutional exception would be infeasible. At that >> point, the Court had one loose end to tie up: that Congress had in fact >> legislated an exception for self-employed religious objectors. It was in >> the context of distinguishing that statutory exception from the claimed >> constitutional exemption that the Court wrote that: "Self-employed persons >> in a religious community having its own "welfare" system are >> distinguishable from the generality of wage earners employed by others. >> Congress and the courts have been sensitive to the needs flowing from the >> Free Exercise Clause, but every person cannot be shielded from all the >> burdens incident to exercising every aspect of the right to practice >> religious beliefs. When followers of a particular sect enter into >> commercial activity as a matter of choice, the limits they accept on their >> own conduct as a matter of conscience and faith are not to be superimposed >> on the statutory schemes which are binding on others in that activity." >> >> The contraception mandate, it seems to me, is quite different. Most >> importantly, the religious objectors are not asking to be let off the hook >> financially. As the government itself emphasizes (to make a different >> point), contraceptive coverage does not make health insurance more >> expensive; indeed, it probably reduces net health costs. Thus, neither the >> financial integrity of the system nor the possible resentment of other >> employers is at risk. Second, and related, with the exception of folks who >> might object to any health insurance or medical treatment for that matter >> (and who are easily distinguishable), there aren't a whole bunch of >> religious objectors to other specific pieces of coverage waiting in the >> wings. Therefore, there's no realistic floodgate problem. So while I'm >> happy to admit that there might be some systemic interest here, it isn't >> even in the ballpark of the systemic interest in collecting taxes. So.... >> in the light of that very different context, we're back to asking whether >> there's a reason to distinguish for-profit from non-profit employers. >> There might be, for reasons I discuss in the comment. But it's a hard >> question, and not one that I think Lee resolves. >> >> Regards, >> >> Perry >> >> On Aug 1, 2013, at 2:35 PM, James Oleske <joleske at lclark.edu<mailto: >> joleske at lclark.edu>> wrote: >> >> <snip> >>> >>> Like Professor Laycock's piece, Professor Dane's piece finds fault with >>> overheated claims on both sides of the debate, but I'm most interested in >>> the doctrinal analysis Professor Dane offers in place of the heat. In >>> particular, on the issue of exemptions for for-profit institutions, >>> Professor Dane's analysis begins with a line that, while not explicitly >>> discussing the case, seems to track the approach of the Court in United >>> States v. Lee: >>> >>> "I do think that the for-profit status of some religious objectors might >>> be relevant, but at the back end – in the analysis of compelling interest – >>> rather than the front end determination of substantial burden." >>> >>> Professor Dane then notes that arguments can be made for and against >>> making distinctions between small and large businesses in determining the >>> government's interest in denying exemptions (I would only add that the >>> denial of an exemption to a very small employer in Lee may be relevant to >>> further exploration of these arguments). Professor Dane concludes his >>> analysis by stating that a "vital proposition in the conception of >>> religious liberty" is that "believers have at least a presumptive right to >>> live out the commitments of their faith across the whole range of human >>> activity, including the world of business and commerce." >>> >>> It is this last point that I think would benefit most from being >>> expanded to account for the doctrinal significance of Lee, where the Court >>> identified a competing presumption that comes into play in for-profit cases >>> due to impact on third parties: >>> >>> "When followers of a particular sect enter into commercial activity as a >>> matter of choice, the limits they accept on their own conduct as a matter >>> of conscience and faith are not to be superimposed on the statutory schemes >>> which are binding on others in that activity. Granting an exemption from >>> social security taxes to an employer operates to impose the employer's >>> religious faith on the employ >>> >>> <snip> >>> >> >> >> ______________________________**_________________ >> To post, send message to Religionlaw@lists.ucla.edu >> To subscribe, unsubscribe, change options, or get password, see >> http://lists.ucla.edu/cgi-bin/**mailman/listinfo/religionlaw<http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw> >> >> Please note that messages sent to this large list cannot be viewed as >> private. Anyone can subscribe to the list and read messages that are >> posted; people can read the Web archives; and list members can (rightly or >> wrongly) forward the messages to others. >> > > > > -- > Ira C. Lupu > F. Elwood & Eleanor Davis Professor of Law, Emeritus > George Washington University Law School > 2000 H St., NW > Washington, DC 20052 > (202)994-7053 > My SSRN papers are here: > http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. >
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
