Religion and For-Profit Corporations: A Real Issue Hidden by Flimsy Arguments

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

Ganor, “Global Alert: The Rationality of Modern Islamist Terrorism and the Challenge to the Liberal Democratic World”

In May, Columbia University Press will release “Global Alert: The Rationality of Modern Islamist Terrorism and the Challenge to the Liberal Democratic World” by Boaz Ganor (Lauder School of Government, Diplomacy, and Strategy at the Interdisciplinary Center, Herzliya). The publisher’s description follows:

Global Alert describes the motivations that lead to modern Islamist terrorism and the different stages in the execution of a terrorist attack. Challenging the certainty that liberal democratic values offer an antidote to radicalism, the book exposes the exploitation of democratic institutions by terrorists to further their goals and confronts the difficulty democracies face in fighting terrorism, especially when international humanitarian law does not account for nonstate actors in armed conflict.  Global Alert especially focuses on the “hybrid terrorist organization” model, which calls for a new international doctrine to neutralize its threat.

Shiffrin on Progressive Preference for Speech Over Religion

Professor Steve Shiffrin is an enormously thoughtful scholar of the First Amendment. He is a constant and welcome reminder to me that alignment in political views is in the end rather minor indeed in the greater scheme of scholarly affinity and insight. My own work has been very much influenced by Steve’s even as his politics and my own differ in various ways.

Steve has a smart post on the religious accommodation controversy. In it, he picks up a theme that has characterized some of his work on the Speech Clause–that is, its arguably indefensible modern scope. He writes:

Why do liberals value freedom of speech over freedom of religion? Why should the state tolerate hate speech on the basis of sexual orientation (not to mention race)? If permitting some religious individuals the ability to discriminate against gays and lesbians in the purchasing of products and services is a stigmatizing denial of equality, how much more stigmatizing is virulent hate speech? In addition, however difficult it might be for many liberals to muster any empathy for the evangelical Christian who feels a religious obligation not to serve gays or lesbians, the explicitly homophobic hate monger is surely worthy of substantially less respect which is to say – no respect.

Some liberals will say that the hate speech example involves speech, and discrimination is conduct. But speech is conduct, as is defamation, most forms of fraud, and perjury. Other liberals will say that in the area of free speech, we do not take the value of speech into account. This is true much of the time, but there are exceptions (obscenity, fighting words, commercial speech, near obscene speech, and private speech) and there should be more of them (depictions of animal cruelty targeted to sadists or masochists, gruesomely violent video games). Why shouldn’t this be one of the exceptions? Note these are the same liberals who believe that equality on the basis of sexual orientation should be a Constitutional right. In other words, they believe that homophobia like racism should be renounced in our Constitution. Of course, everyone should have a right to question the wisdom of our constitutional rights, even the equal protection clause, but that should not implicate a right to stigmatize and libel citizens on the basis of sexual orientation (or race).

It’s an interesting set of questions. For more on the reasons for the decrease in broad American social investment in religious freedom by comparison with free speech, see Part IV of this paper (and in particular my friendly wager with Professor John Inazu about whether it is, or is not, only a matter of time before the Speech Clause suffers a similar fate).

Vance, “Women in New Religions”

In March, NYU Press released “Women in New Religions” by Laura Vance (Warren Wilson College). The publisher’s description follows:

Women in New Religions offers an engaging look at women’s evolving place in the birth and development of new religious movements. It focuses on four disparate new religions—Mormonism, Seventh-day Adventism, The Family International, and Wicca—to illuminate their implications for gender socialization, religious leadership and participation, sexuality, and family ideals.

Religious worldviews and gender roles interact with one another in complicated ways. This is especially true within new religions, which frequently set roles for women in ways that help the movements to define their boundaries in relation to the wider society. As new religious movements emerge, they often position themselves in opposition to dominant society and concomitantly assert alternative roles for women. But these religions are not monolithic: rather than defining gender in rigid and repressive terms, new religions sometimes offer possibilities to women that are not otherwise available. Vance traces expectations for women as the religions emerge, and transformation of possibilities and responsibilities for women as they mature.

Weaving theory with examination of each movement’s origins, history, and beliefs and practices, this text contextualizes and situates ideals for women in new religions. The book offers an accessible analysis of the complex factors that influence gender ideology and its evolution in new religious movements, including the movements’ origins, charismatic leadership and routinization, theology and doctrine, and socio-historical contexts. It shows how religions shape definitions of women’s place in a way that is informed by response to social context, group boundaries, and identity.

Tessler, “Islam and Politics in the Middle East”

This June, Indiana University Press will release “Islam and Politics in the Middle East: Explaining the Views of Ordinary Citizens” by Mark Tessler (University of Michigan).  The publisher’s description follows:

Islam and Politics in the Middle EastSome of the most pressing questions in the Middle East and North Africa today revolve around the proper place of Islamic institutions and authorities in governance and political affairs. Drawing on data from 42 surveys carried out in fifteen countries between 1988 and 2011, representing the opinions of more than 60,000 men and women, this study investigates the reasons that some individuals support a central role for Islam in government while others favor a separation of religion and politics. Utilizing his newly constructed Carnegie Middle East Governance and Islam Dataset, which has been placed in the public domain for use by other researchers, Mark Tessler formulates and tests hypotheses about the views held by ordinary citizens, offering insights into the individual and country-level factors that shape attitudes toward political Islam.