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On Aug 6, 2013, at 12:39 AM, "Volokh, Eugene" <vol...@law.ucla.edu> wrote: > Why would doctrines of corporate law bar a closely held > corporation’s owners from asserting that a regulation of the corporation > substantially burden their religions? I would think that federal courts’ > application of corporate law is as subject to RFRA as its application of > other laws. > > Let’s take a simple example: Say that a state has a RFRA, > but also has a law requiring all gas stations to be open seven days a week. > John Smith and his brother Peter Smith co-own a gas station, through a > closely held corporation (Smithcorp). They have a religious objection to > having any business they own operating on their Sabbath (say, Saturday), and > they sincerely believe that this also applies to businesses that they own > through a corporation. (Lots of people, of course, sincerely believe that if > it’s wrong for them to do something, it would be wrong for them to do it > through the corporate form. Indeed, I think we’d look askance at someone who > says, for instance, “Yes, I think it’s wrong for me to sell meat products, or > for me to let meat products be sold on my property, but it’s just fine for > meat products to be sold on the property of a corporation of which I am a > sole owner”; the corporate form is a useful legal concept that may have great > legal effects, but few people see it as morally significant in distancing a > person from what his business does.) > > I would think that the state law substantially burdens the > Smiths’ religious exercise. It puts them to the choice of (1) doing > something that they believe is religiously forbidden (have a corporation that > they own operate on a Saturday) or (2) giving up the corporate form, a device > of very substantial value to a business (cf. Sherbert v. Verner). Perhaps > the state can overcome the RFRA claim under strict scrutiny, but I don’t see > how the business’s being a corporation weakens the Smiths’ RFRA claim. > > Now of course if the Smiths did not sincerely believe that it > was religiously wrong for them to have their corporate-owned gas station to > be open Saturdays (maybe they viewed the corporation as a legal Shabbes > goy?), then their RFRA claim would be a loser. But so long as they believe > that it’s a sin for them to operate their corporation in such a way that the > station is open Saturdays, I would think that the substantial burden > requirement is satisfied. Or am I missing something? > > Eugene > > From: religionlaw-boun...@lists.ucla.edu > [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman > Sent: Monday, August 05, 2013 8:49 PM > To: Law & Religion issues for Law Academics > Subject: Re: Contraception mandate - Lee > > Chip and I are not that far apart. > > I agree that both Braunfeld and Lee asserted that regulation of their > business affairs burdened their own, personal religious liberty. The Greens > make the same claim in Hobby Lobby. And thus they would surely have standing > to sue on their own behalf . . . if they had not incorporated. As I said, > there are doctrines in corporate law, discussing in some of the Hobby Lobby > and Conestoga briefs and opinions, that limit the sorts of personal claims > that can be brought by the owners of corporations for injuries alleged to > themselves by virtue of legal regulation of the corporations. I don't know > enough about that law to say whether it precludes the Greens's claim. > > Whether Hobby Lobby has its own religious liberty claim is a very different > question. The claim here involves an allegation of being forced to violate a > religious obligation, which I don't quite understand in the context of a > for-profit corporation, which presumably does not have any religious duties. > Bob Jones University raised a very different sort of claim, if I recall > correctly. > > On Mon, Aug 5, 2013 at 10:25 PM, Ira Lupu <icl...@law.gwu.edu> wrote: > Braunfeld and Lee were men engaged in business, and both were asserting that > regulation of their business affairs (Sunday Closing law in Braunfeld; FICA > contributions in Lee) burdened their religious exercise. Those are business > claims of free exercise infringement. I don't see any way around that > characterization. > > Neither case seems to have involved the corporate form, however, and I agree > that the contraceptive mandate cases present that novel issue. But neither > the legislative history nor the pre-RFRA law will resolve it; whether > corporate identity precludes a religious liberty claim is a question of first > impression. But we all can see that corporate identity did not preclude the > claim in Bob Jones University v. U.S., and I don't understand the logic of > allowing universities to make religious liberty claims but not business > corporations. > > On the merits, I think the interests of female employees may be getting short > changed in this discussion. Cutter says that RLUIPA should be construed, in > light of the Establishment Clause, to avoid shifting substantial costs to > third parties (see TWA v. Hardison; Caldor), and that principle of > construction must apply with equal force to RFRA. If Hobby Lobby (and others > like it) are exempt from the mandate, the firm's female employees will be > made worse off; they will have to pay for their own pregnancy prevention > services. (Yes, I know the scheme is under-inclusive, but that does not make > the cost-shifting problem go away with respect to those who are covered). Of > course, the question is who should pay for these services -- the employer, > the employees, or the government. Anyone who thinks RFRA dictates a > straightforward answer to that problem is just seeing in RFRA what he or she > hopes to see. > _______________________________________________ > 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.
