On Corporations, Their Purposes, and Their “Exercise of Religion” Under RFRA

Kevin Walsh (Richmond) has a superb post about the question whether for-profit corporations are “persons” who “exercise religion” pursuant to RFRA.  He makes his claims in the context of criticizing a recent panel decision of the Third Circuit.  You should read the whole thing, but here is a selection:

RFRA provides that “[g]overnment shall not substantially burden a person’s exercise of religion” unless the government satisfies strict scrutiny. 42 U.S.C. § 2000bb-1(a) (emphasis added). In the U.S. Code, “person” ordinarily encompasses “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” 1 U.S.C. § 1. Nothing in RFRA excludes corporations generally. To the contrary, it is plain that corporations can assert claims under RFRA. The only Supreme Court case applying RFRA against the federal government involved a claim asserted by a corporation, O Centro Espírita Beneficente União do Vegetal . . . .

When one analyzes the claim, it turns out that the argument is not really about the meaning of the word “person” (even though the conclusion of the argument purports to be a claim about the meaning of this word). Rather, the argument pivots on “exercise of religion.” In the words of the district court opinion adopted by the Third Circuit, “a for-profit, secular corporation cannot exercise religion.”

Again, the claim is not that corporations cannot engage in exercise of religion. After all, corporations can, and do, exercise religion. Consider, for example,Church of Lukumi Babalu Aye, Inc. or Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints. The claim, rather, is limited to “secular, for-profit corporations.” But the claim rests on a mistake about “exercise of religion” under federal law and a mistake about corporate action.

For Kevin’s arguments about the meaning of “exercise of religion” under RFRA and about the purposes of corporate action, read the post.  I will add that on the former point, it is unquestionably the case that as a historical matter, refusals to behave in a certain way may be “exercises of religion”: two of the earliest religious exemption questions — the Quakers’ resistance to military conscription and the opposition in some religious communities to swearing oaths — take just this form.

Podcast on “First Amendment Institutions”

Paul Horwitz and I discuss his book in this podcast, the latest in the Federalist Society’s worthwhile series of conversations on new books.

Our written exchange is here.