I've long thought that corporate rights make sense only to the extent
that they are useful for stand-ins for the rights of people. (I support
Citizens United precisely because of that.)
And when it comes to closely held corporations, whose owners claim an
objection to participating in some activity, including by paying for it or
allowing it on their property, there are indeed rights of people involved.
A simple hypothetical: A law requires that all retail stores sell
lottery tickets. A store is owned by a corporation, which is in turn owned by
(say) two brothers; they believe that gambling is a sin, and that facilitating
gambling is a sin. (In that respect they are like Thomas in Thomas v. Review
Bd., who believed not only that he shouldn't go to war, but also that he
shouldn't help in warmaking.) The requirement, it seems to me, burdens their
religious practice, even though they own their business through a corporate
form.
The corporate form is indeed a legal fiction, which is why I think
corporate rights should only be recognized a stand-ins for the rights of
people. But for the same reason burdens on people's religious practice
shouldn't be ignored by the law by invoking the fiction that the gas station
isn't really owned by the brothers but is instead owned by the corporation.
The only question, I think, should be whether the brothers would have
to sue under the relevant state RFRA in their own names, pointing to the burden
that the lottery sales mandate imposes on them, or whether they could have the
lawsuit be filed in the name of the corporation. But the bottom-line result
should be that the owners of the closely held corporation could indeed assert a
RFRA claim, whichever way it's done.
Eugene
Alan Brownstein writes:
> -----Original Message-----
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Alan Brownstein
> Sent: Tuesday, November 26, 2013 3:15 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Contraception Mandate
>
> Interesting piece. I think there have been and should be Establishment
> Clause constraints on the burdens religious accommodations can impose on
> third parties, but determining how and where this line should be drawn is no
> easy task.
>
> I think there are three other distinctions or questions one might raise about
> extending RFRA exemptions to for-profit corporations.
>
> First, religious liberty and freedom of conscience is primarily a dignitary
> right,
> not an instrumental right. Citizens United involved the instrumental goals of
> the free speech clause. Does the Constitution provide the same dignitary
> protection to corporations that it provides to human persons? See, e.g.
> Justice Rehnquist's dissent in PG & E v. PUC.
>
> Second, I think the state would need to worry more about sham claims for
> religious exemptions from for-profit companies than religious non-profits.
> The religious identity of the great majority of religious non-profit
> corporations is not hard to determine. Religion is the core of their activity.
> The core activity of the great majority of for-profit corporation is making a
> profit. It will be harder to guarantee the genuineness of claims for religious
> exemptions in the for-profit sector. This is particularly true when the
> exemption will reduce the corporation's costs. While this concern might be
> more appropriately considered in the application of strict scrutiny review,
> one might argue that the case for not granting the exemption is sufficiently
> strong that we could adopt a prophylactic rule preventing for-profit
> companies from asserting the statutory right in the first place.
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