I think there is considerable force to Eugene's argument about closely held corporations (although I'm not sure if the size of the enterprise needs to be taken into account too -- I'm still thinking about that.) Do I take it from your argument that you believe a publicly traded corporation would not be a useful stand-n for people?
Alan -----Original Message----- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Tuesday, November 26, 2013 3:31 PM To: Law & Religion issues for Law Academics Subject: Rights of corporations and RFRAs 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 _______________________________________________ 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.
