To be clear, I generally agree with the core opinion in Hobby Lobby. I think it would have been a better opinion if it had not reached the conclusion that commercial corporations have protected religious exercise rights for the reasons I stated in my post.
I think a non-profit corporation is distinct in important ways from a for-profit corporation. And we usually protect advocacy groups for instrumental reasons as well as dignitary concerns. But I think my earlier comment may hold true here as well. We can probably protect the dignitary rights of the well-meaning people who have banded together to do something good as a non-profit corporation without recognizing that the corporate entity itself has dignitary rights. Alan -----Original Message----- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of mallamud Sent: Monday, July 07, 2014 11:23 AM To: Law & Religion issues for Law Academics Subject: RE: On a different strand of the seamless web Lots of advocacy groups are organized as corporations. It is a very common means of collecting money and engaging is supporting good causes. The fact that it is a corporation should not undermine the idea that a lot of well-meaning people have banded together to do something good. I do not see that it diminishes their sense of doing good things because we use the fiction that the corporation is doing them. Similarly, though I disagree with the decision in Hobby Lobby for many reasons that have been stated on this list, it is not because Alito uses the fiction of the corporation to uphold what the Court decides are the rights of the Greens and the Hahns. To me, to suggest that the decision gives corporations dignitary rights, which admittedly they do not have gets off the point. To me a big obstacle to tolerance arises when we think of rights as dignitary rights so that the failure to recognize becomes tantamount to failing to respect someone's personhood. Tolerance will be scarce if we all start to think that the presence of a religious symbol that is not ours diminishes our dignity, and so I think we should stay well clear of the concept of "dignitary rights." Jon On 2014-07-07 12:55, Alan Brownstein wrote: > I agree with most of what Marty says here. Commercial corporations do > not have dignitary rights such as the right to exercise religion. > Human persons have these rights and one can argue as Alito often but > not always does that they should not be held to have waived those > rights because they elect to do business in a corporate form. > Alito’s opinion is strongest when he focuses on real people. > > But the majority also holds that commercial corporations are persons > for RFRA purposes. I do not think it was necessary to reach that > conclusion to protect the Greens and Hahns in this case. Alito > suggests that this idea of corporate personhood is a fiction, but it > is more than that. It is a caricature of human dignity to describe a > commercial corporation as having religious exercise rights. I think > that is part of what is provoking some of the criticisms directed at > Alito’s opinion. > > Moreover, by holding that corporations are persons for RFRA purposes, > Alito makes it much easier to argue that publicly traded corporations > are persons for RFRA purposes as well as closely held corporations. > > Finally, the issue of commercial corporate dignitary rights arises in > other contexts involving other rights. I think, for example, as did > Chief Justice Rehnquist, that it is absurd to suggest that commercial > corporations have dignitary rights that are offended if they are > compelled as corporate entities to speak – or to be connected in some > modest way with some government mandated message. By talking about > commercial corporate religious exercise rights in Hobby Lobby, the > Court arguably reinforces the idea of corporate dignitary rights in > other circumstances. > > Alan > > FROM: religionlaw-boun...@lists.ucla.edu > [mailto:religionlaw-boun...@lists.ucla.edu] ON BEHALF OF Marty > Lederman > SENT: Monday, July 07, 2014 8:14 AM > TO: Law & Religion issues for Law Academics > SUBJECT: Re: On a different strand of the seamless web > > On this point, I think we may have at least some degree of consensus: > The issue is not corporate v. noncorporate, or for-profit v. > nonprofit; it is, instead -- and has been ever since Prince, a case > involving individuals acting in the commercial sector for religious, > nonprofit reasons -- whether and under what circumstances exemptions > should be afforded in the commercial setting. > > Also, as I have been blogging since the outset of the case, the issue > is not the religious exercise of the commercial enterprise -- it's > absurd to say that any religion imposes obligations on Hobby Lobby, > Inc. -- but instead the religious exercise of those who make decisions > on its behalf. I think the Alito opinion is best understood to confirm > this conclusion. To be sure, at a couple of points he refers to > permitting the RFRA suit to be brought by Hobby Lobby itself. But > there's no doubt that it's the Greens and the Hahns, in their capacity > as corporate directors, whose religious exercise is at issue: > > -- "Congress did not discriminate in this way AGAINST MEN AND WOMEN > WHO WISH TO RUN THEIR BUSINESSES as for-profit corporations in the > manner required by their religious beliefs." > > -- "Congress provided protection for PEOPLE LIKE THE HAHNS AND > GREENS" > > -- "the HAHNS AND GREENS have a sincere religious belief that life > begins at conception. They therefore object on religious grounds to > providing health insurance that covers methods of birth control . . . > ." > > Ultimately, the Court holds that "protecting the free-exercise rights > of corporations like Hobby Lobby, Conestoga, and Mardel protects the > religious liberty of the humans who own and control those companies." > I think this formulation doesn't make sense conceptually -- the > corporations don't exercise religion. Therefore it would have made > much more sense for the Court simply to say that the Greens and Hahns > can sue under RFRA. But in any event, there's no doubt that, at least > in the for-profit cases, the burden is allegedly placed on the > religious exercise of the individuals making decisions on behalf of > the companies, rather than on any religious exercise of the companies > themselves. > > -- > > On Mon, Jul 7, 2014 at 10:40 AM, Rick Garnett <rgarn...@nd.edu [1]> > wrote: > > Dear colleagues, > > I suppose I am just echoing a point that Eugene made, but it seems to > me that -- while it is certainly possible to imagine settling, at the > end of the day, if only for pragmatic reasons, on a legal regime that > did not extend religion-related exemptions from generally applicable > "commercial" or "economic" regulations or did not extend them to > for-profit corporations -- the reason or justification for this regime > would not be (a) that religious commitments have nothing to say about, > and do not often motivate, commercial or economic activity; (b) that > business corporations do not have "souls"; or (c) that only laws > regulating the activities of natural persons can burden religious > freedom or the exercise of religion. > > Best wishes, > > Rick > > Richard W. Garnett > > Professor of Law and Concurrent Professor of Political Science > > Director, Program on Church, State & Society > > Notre Dame Law School > > P.O. Box 780 > > Notre Dame, Indiana 46556-0780 > > 574-631-6981 [2] (w) > > 574-276-2252 [3] (cell) > > rgarn...@nd.edu [4] > > To download my scholarly papers, please visit my SSRN page [5] > > Blogs: > > Prawfsblawg [6] > > Mirror of Justice [7] > > Twitter: @RickGarnett [8] > > On Mon, Jul 7, 2014 at 4:53 AM, Paul Finkelman > <paul.finkel...@yahoo.com [9]> wrote: > > i am not sure; my point is this that Hobby Lobby is NOT about > individuals it is about a company. I agree with Doug (and probably > every on this list) that the owners of Hobby should have religious > liberty to avoid doing some things (but I believe that is true for > Smith in the Oregon case). My point is that Hobby Lobby is a > corporation and not a person and so it has no -- zero -- rights of > religious liberty. It should be required to act according to the law, > the same as any other corporation. For profit corporations (as opposed > to an not-for-profit religious corporation) are not people so I simply > disagree that their owners are free to act in the way Doug wishes. > > So, in that sense, I think Doug's position has to be that the > corporation somehow has a religious liberty. I am not buying it. > > ------------------------- > > FROM: "Volokh, Eugene" <vol...@law.ucla.edu [10]> > TO: Paul Finkelman <paul.finkel...@yahoo.com [11]>; Law & Religion > issues for Law Academics <religionlaw@lists.ucla.edu [12]>; Douglas > Laycock <dlayc...@virginia.edu [13]>; "Scarberry, Mark" > <mark.scarbe...@pepperdine.edu [14]> > SENT: Sunday, July 6, 2014 7:11 PM > SUBJECT: RE: On a different strand of the seamless web > > Paul: Are you seriously claiming that Doug believes a corporation has > a soul? Or even that he believes it is a person (the singular of > “people”) in the lay sense of the word “person,” as opposed to the > Dictionary Act sense of the person? > > Eugene > > FROM: religionlaw-boun...@lists.ucla.edu [15] > [mailto:religionlaw-boun...@lists.ucla.edu [16]] ON BEHALF OF Paul > Finkelman > SENT: Sunday, July 06, 2014 1:48 PM > TO: Douglas Laycock; Law & Religion issues for Law Academics; > Scarberry, Mark > SUBJECT: Re: On a different strand of the seamless web > > unlike Doug, I do not believe corporations are people, that they have > religious believes or that they have souls (that is of course an > understatement); corporations are legal vehicles designed to make > money for the investors and to shield the investors from having to use > their own assets to cover losses and debts. > > I do not believe any faith thinks Hobby Lobby has an immortal soul, > can go to heaven or hell, or that it prays. So, I guess I am > unpersuaded that there can be an exemption issue for a corporation > > ------------------------- > > FROM: Douglas Laycock <dlayc...@virginia.edu [17]> > TO: Paul Finkelman <paul.finkel...@yahoo.com [18]>; Law & Religion > issues for Law Academics <religionlaw@lists.ucla.edu [19]>; > "Scarberry, Mark" <mark.scarbe...@pepperdine.edu [20]> > SENT: Sunday, July 6, 2014 11:36 AM > SUBJECT: Re: On a different strand of the seamless web > > Unlike Paul, I think the exemption issues and the > government-sponsored prayer issues are very different. > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu [21] To > subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw [22] > > 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 [23] To > subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw [24] > > 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. > > > > Links: > ------ > [1] mailto:rgarn...@nd.edu > [2] http://crab.rutgers.edu/tel:574-631-6981 > [3] http://crab.rutgers.edu/tel:574-276-2252 > [4] mailto:rgarn...@nd.edu > [5] http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235 > [6] http://prawfsblawg.blogs.com/ > [7] http://mirrorofjustice.blogs.com/ > [8] https://twitter.com/RickGarnett > [9] mailto:paul.finkel...@yahoo.com > [10] mailto:vol...@law.ucla.edu > [11] mailto:paul.finkel...@yahoo.com > [12] mailto:religionlaw@lists.ucla.edu [13] > mailto:dlayc...@virginia.edu [14] mailto:mark.scarbe...@pepperdine.edu > [15] mailto:religionlaw-boun...@lists.ucla.edu > [16] mailto:religionlaw-boun...@lists.ucla.edu > [17] mailto:dlayc...@virginia.edu > [18] mailto:paul.finkel...@yahoo.com > [19] mailto:religionlaw@lists.ucla.edu [20] > mailto:mark.scarbe...@pepperdine.edu > [21] mailto:Religionlaw@lists.ucla.edu [22] > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > [23] mailto:Religionlaw@lists.ucla.edu [24] > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw _______________________________________________ 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.
