Abstract
This chapter examines the claim at the heart of Hobby Lobby: do corporations have a right to exercise religion? Gans says no, because this is a personal right tied to conscience, conviction, and human dignity. No court has ever protected the right of businesses to practice religion. On the contrary, courts have refused to grant secular corporations religious exemptions, particularly from laws protecting employees’ rights. Shapiro disagrees because the people behind the company can have their religious liberty violated through actions affecting the corporation. Neither legal form nor profit motive affects the scope of individual rights; the proper inquiry under the law is whether religious exercise is burdened, whether the government can justify that burden, and whether there’s another way to achieve its justified goal.
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Notes
J. Cox & T. Hazen, Treatise of the Law of Corporations §4:1, p. 224 (3d ed. 2010); see 1A W. Fletcher, Cyclopedia of the Law of Corporations §102 (rev ed. 2010).
See Brief of Cato Institute in Burwell v. Hobby Lobby (January 28, 2014), available at http://object.cato.org/sites/cato.org/files/pubs/pdf/hobby-Iobby-filed-brief.pdf.
See United States v. White, 322 U.S. 694, 698 (1944) (explaining that the Self-Incrimination Clause “grows out of the high sentiment and regard of our jurisprudence for conducting criminal trials and investigatory proceedings on a plane of dignity, humanity and impartiality”). In fact, the origins of the rights against compelled self-incrimination and the right to religious free exercise are closely linked. See Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 82–83 (1998); William Stuntz, The Substantive Origins of Criminal Procedure, 105 Yale L.J. 393, 411–12 (1995) (explaining that “the privilege entered the law in response to practices that were troubling…because of the crimes being prosecuted” including “crimes of religious belief”). As Prof. Stuntz explained, critics of compelled oaths viewed them as violations of freedom of conscience: “put[ting] the conscience uppon [sic] the racke.” Id. at 412.
See David H. Gans, Discrimination, Inc., Constitution Daily (February 28, 2014), http://blog.constitutioncenter.org/2014/02/discrimination-inc/.
1 William Blackstone, Commentaries on the Law of England*470 (1768) (observing the “division of corporations … into ecclesiastical and lay. Ecclesiastical corporations are where the members that compose it are entirely spiritual persons.… These are erected for furtherance of religion, and perpetuating the rights of the church”).
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© 2014 David H. Gans and Ilya Shapiro
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Gans, D.H., Shapiro, I. (2014). Corporate Personhood and Religious Liberty. In: Religious Liberties for Corporations?: Hobby Lobby, the Affordable Care Act, and the Constitution. Palgrave Macmillan, New York. https://doi.org/10.1057/9781137479709_3
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DOI: https://doi.org/10.1057/9781137479709_3
Publisher Name: Palgrave Macmillan, New York
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