The distinctions offered in the first two paragraphs below
might well represent a sensible moral judgment. But I don't see how it can
affect the RFRA substantial burden analysis, if the owners sincerely consider
that they are responsible to God for using slave labor, or paying for
contraceptives, or having their stores open on the Sabbath. I wouldn't
consider Thomas responsible for making war simply because he was doing the
military-related manufacturing job that his employer assigned to him (even if I
thought the war that his services were helping was unjust). But Thomas thought
that this behavior was against God's will, and that was enough.
Now whether a corporation should have standing to raise these
arguments, or whether they would have to be made through the corporations'
co-owners, is a separate question. I think the success or failure of the
arguments ought to ultimately rest on the burden being placed on real people,
not on corporations - just as ultimately the soundness of all corporate law
principles has to rest on their effects on real people. But it's possible that
allowing corporate standing is a useful and effective means of protecting the
owners' religious freedom rights, just as it is a useful and effective means of
protecting the owners' property against taking without just compensation or
deprivation of property without due process, or for that matter just as it is
useful and effective in constructing contract law, tort law, and so on. And in
any event, in conducting this analysis we shouldn't, I think, rest on our
judgments of what's immoral complicity, but instead ask what are the owners'
sincere beliefs about religiously forbidden complicity.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Tuesday, August 06, 2013 6:58 AM
To: Law & Religion issues for Law Academics
Subject: Re: Closely-held corporations, owners of corporations, and RFRAs
Actually, in order to make the hypothetical analogous to these cases . . .
well, it really can't be made analogous, because providing a health insurance
plan that covers all recognized medical treatments without exception can't be
analogized to choosing to use slave labor in any serious moral universe. But
even putting that aside . . .
. . . one would have to posit a closely held corporation that for many years
refuses to use slave labor . . . until the federal government requires all
large employers to use slave labor, at which point no one would consider the
owners of that corporation to be morally responsible, especially after the
owners inveigh against the moral evil of the new law -- reasonable observers
would properly direct their opprobrium to the government itself.
Let me be clear: I'm not saying the owners of these corporations do, or do
not, have standing to bring RFRA claims based on legal obligations imposed on
the corporations. I haven't done enough research to have a view on the
question. In fact, the only "research" I've done at all is to read the various
opinions on the question in the courts of appeals cases, which I recommend to
you all. (See, e.g, the Matheson and Bacharach opinions in Hobby Lobby.) But
there was a reason the majority in Hobby Lobby chose not to reach the question
of the Greens' standing -- presumably because it raises difficult and thorny
questions under corporations law. Instead, the majority held that the
corporation itself had standing based on an alleged burden on its own religious
exercise -- and it's that holding that I find implausible.
On Tue, Aug 6, 2013 at 9:26 AM, Douglas Laycock
<dlayc...@virginia.edu<mailto:dlayc...@virginia.edu>> wrote:
For folks having trouble with Eugene's hypothetical, think about an activity
that most secularists would also think is seriously wrong. Suppose I form a
wholly owned corporation, and my corporation uses slave labor for hazardous
work, with many deaths and injuries among the workers, in some developing
country. When I'm exposed in the press and subjected to intense public
criticism, I just say: "It's not me. It's a corporation."
I don't think my critics would be the least bit mollified. They would still
view me as morally responsible, as well they should.
Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546<tel:434-243-8546>
From:
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
[mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>]
On Behalf Of Volokh, Eugene
Sent: Tuesday, August 06, 2013 12:40 AM
To: Law & Religion issues for Law Academics
(religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>)
Subject: Closely-held corporations, owners of corporations, and RFRAs
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
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