I think that there are at least two things going on here that have not been well articulated:
(1) Corporate lawyers have spent decades attempting to convince courts and legislatures that the corporate entity should be seen as a separate "person" from its shareholders, even when the corporation is closely held, or is a wholly-owned subsidiary of another company. This is all in an attempt to prevent creditors holding shareholders personally liable for corporate debts. Usually in corporate law, once courts "pierce the corporate veil" for one purpose, they are likely to do so for other purposes as well. So there is a fear that broadly allowing piercing in these contraceptive coverage cases to treat the corporation's obligation to furnish coverage as a burden on the individual shareholder will create precedent for unrelated cases in which creditors are seeking to reach shareholders' assets. (2) The second consideration relates not so much to the strictly legal argument, but rather to the question of how the general public will react to the free exercise claim. I think that many people are having trouble with the nature of the free exercise burden being asserted. The claim is that it is participation in evil for a believer to pay for insurance that an employee might use for a procedure that the employer (or its shareholders) think is morally evil. (But this logically also should create the same problem with payment of taxes that support Meidcaid coverage of the same procedures.) Beyond this, the contraceptive coverage cases avoid dealing at length with the ultimate evil to which plaintiffs are objecting. That is because there are really two kinds of claims-- both problematic in the minds of at least some of the public. One claim (usually by Catholic plaintiffs) is that the evil at issue is any kind of artificial contraception. Many consider that moral position problematic. The second claim-- made by non-Catholic conservative Christian plaintiffs-- but also emphasized in many of the cases brought by Catholics -- is that certain of the mandated coverage is for abortifacients. This argument-- seen as an anti-abortion argument-- gets a generally more favorable public reaction. But examining it more closely, the argument is that life begins at fertilization, not at implantation, so that Plan B, ella, and IUDs which may prevent implantation of a fertilized egg are morally equivalent to abortion at even much later stages of pregnancy. It is less clear how much support among the public there is for this position. And there is substantial scientific debate over whether at least Plan B even does ever prevent implantation. The claim comes from the FDA's required description that many contest. ________________________________ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Tuesday, August 06, 2013 10:42 AM To: Law & Religion issues for Law Academics Subject: RE: Closely-held corporations, owners of corporations, and RFRAs 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 _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto: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. 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_______________________________________________ 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.