I was recently talking with a well-regarded scholar about the argument advanced in Hobby Lobby by the Administration that for-profit corporations should not be able to claim protections for religious freedom. His response was that the argument was always a makeweight and didn’t really raise serious questions one way or the other. Since my interlocutor is a smarter and more learned man that I, I have thought quite about his claim. Here is why I think he’s wrong.
He’s right that the arguments advanced in the Hobby Lobby debates about corporations were pretty shallow. There was the claim that a corporation – as opposed to an individual – cannot practice religion. This, of course, cannot be right as it would lead to the absurd position that churches (which are corporate persons) cannot exercise religion. One might respond that it is not the corporateness per se that is at issue but the exercise of religon by for-profit corporations. The problem here is that this would suggest that individuals that pursue profits also cannot be exercising religion. This is less absurd, but still pretty flimsy. One might imagine trying to say this with a straight face about businesses organized as sole proprietorships, but what of employees or other individuals pursuing economic gain, i.e. essentially all adults? Does their “for profit” status preclude them exercising religion? Certainly not. Then there is the claim that in exchange for the “subsidy” of limited liability, for-profit corporations give up the right to pursue religious ends. This claim flies in the face state corporate law, which generally provides that a corporation may be formed for “any lawful purpose.” It’s also worth noting that state exempt property statutes provide “limited liability” for individuals, performing precisely the same economic function – asset partitioning – as limited corporate liability. In return for the “subsidy” provided by homestead exemptions does anyone think that individuals give up the right to practice religion?
Despite the flimsiness of these arguments, however, I think that the debates about corporations in Hobby Lobby get at a deeper issue, one that at the very least justifies a blog post on the topic even after the case has been decided.
Far from being a makeweight, I think that the intuition that many folks have that corporations should not exercise religion actually has pretty deep roots in our law, albeit one’s that I don’t find terribly attractive. One could object to the exercise of religion by for-profit corporations for the same reason that one might generally be suspicious of for- Read more