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The First Amendment Case for Corporate Religious Rights

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The First Amendment Case for Corporate Religious Rights 16 NEV. L.J. 1, MOORE - FINAL.DOCX 1/15/16 1:01 PM THE FIRST AMENDMENT CASE FOR CORPORATE RELIGIOUS RIGHTS By John D. Moore* In the wake of the Supreme Court’s controversial decision in Burwell v. Hobby Lobby Stores, Inc., this article makes the case for extending First Amendment religious protections to for-profit corporations. It argues that logical application of the First Amendment allows for no other result. The article then proposes a novel framework—deeply rooted in existing First Amendment law— for determining which corporations are actually engaged in religious practice. Rather than focusing on profit motives or ownership structure, courts deciding corporate religious claims should extend First Amendment protection to those corporations that have demonstrated sincere religious beliefs through their cor- porate charter and practices. By tackling this controversial problem head-on and offering a workable middle-ground approach to resolving the controversy, this article offers valuable tools to courts considering corporate free exercise cases and to scholars discussing these issues. TABLE OF CONTENTS INTRODUCTION ................................................................................................... 3 I. THE ROAD TO HOBBY LOBBY ................................................................... 5 A. Legislation ....................................................................................... 5 1. The Patient Protection and Affordable Care Act (Obamacare) ............................................................................. 5 2. The Religious Freedom Restoration Act (RFRA) ...................... 7 B. Circuit Court Decisions .................................................................. 9 1. Hobby Lobby Stores, Inc. v. Sebelius ........................................ 9 2. Conestoga Wood Specialties Corporation v. Secretary of U.S. Department of Health and Human Services ................... 10 II. THE SUPREME COURT DECIDES BURWELL V. HOBBY LOBBY STORES, INC. ........................................................................................................ 11 A. Arguments from RFRA .................................................................. 12 B. Arguments from Precedent ............................................................ 13 C. Arguments from Policy .................................................................. 14 D. Problematic Aspects ...................................................................... 15 * Thank you to Joel Gora, Sabrina Margret Bierer, McLean Crichton, and David Giller for reading earlier drafts of this work and offering their helpful feedback. Thanks also to the edi- tors and staff of the Nevada Law Journal for their diligent work improving this article. For Faith and Peter. 1 16 NEV. L.J. 1, MOORE - FINAL.DOCX 1/15/16 1:01 PM 2 NEVADA LAW JOURNAL [Vol. 16:1 III. THE FIRST AMENDMENT CASE FOR CORPORATE FREE EXERCISE RIGHTS .................................................................................................. 18 A. Corporations Enjoy First Amendment Rights ............................... 19 B. Religion Is Not a Purely Personal Right ....................................... 21 C. Individuals Can Practice Religion in a For-Profit Context .......... 24 D. Logical Application of Precedent Requires That Free Exercise Protections Extend to For-Profit Corporations ............................ 26 E. Lack of Previous Recognition Not Dispositive .............................. 27 F. Corporate Conscience Is Recognized in Other Contexts .............. 29 G. The Overlap of Religion and Commerce ....................................... 31 H. Protecting Corporations Vindicates Individual Rights ................. 33 I. Recognizing Corporate Rights Does Not Necessarily Determine Case Outcomes ............................................................ 34 IV. A PRACTICAL APPLICATION OF CORPORATE FREE EXERCISE RIGHTS .................................................................................................. 36 A. The Need for and Benefits of a Threshold Sincerity Test .............. 37 B. The Process for Determining Corporate Religious Beliefs ........... 39 1. Focus Must Be on the Corporation Itself ................................ 39 2. Holistic Analysis ..................................................................... 41 3. The Analysis Is Focused on Fact-Finding Based on External Facts ......................................................................... 41 4. Sources of Information to Consider ........................................ 42 C. Factors to Consider When Assessing Corporate Free Exercise Claims ............................................................................................ 43 1. Demonstrated Religiosity in Corporate Practice .................... 43 2. Public Displays of Religion ..................................................... 44 3. The Length and Consistency of the Corporation’s Averred Beliefs ...................................................................................... 44 4. The Corporation’s Secular Interest and/or Willingness to Accept Hardship ...................................................................... 45 5. Corporation’s Governance Structure ..................................... 46 V. CORPORATE FREE EXERCISE RIGHTS: OBJECTIONS AND RESPONSES ... 47 A. Corporations Cannot Form Sincere Beliefs .................................. 47 B. Sincerity Is Difficult to Discern ..................................................... 48 C. Judging Corporate Sincerity Poses Distinctive Challenges ......... 49 D. Corporations Will Be Incentivized to Manipulate the System ....... 50 E. Not Every Corporation Does or Will Practice Religion ............... 51 F. Only Small, Closely Held Corporations Should Be Able To Assert Religious Rights .................................................................. 52 G. Sincerity Inquiries Cannot Create Definitive, Generalizable Rules .............................................................................................. 53 16 NEV. L.J. 1, MOORE - FINAL.DOCX 1/15/16 1:01 PM Fall 2015] CORPORATE RELIGIOUS RIGHTS 3 H. Sincerity Determinations Discriminate Against Minority Beliefs ............................................................................................ 54 CONCLUSION .................................................................................................... 55 INTRODUCTION From the moment the Supreme Court granted certiorari to hear religious challenges to the Affordable Care Act in the Hobby Lobby case, there was little question that this case was going to be the “blockbuster” of the 2013 term.1 The case brought together issues considered in the Court’s controversial Citizens United ruling—affirming corporate personhood2—and its equally controversial 2012 ruling upholding the constitutionality of the Affordable Care Act (also known as “Obamacare”).3 The Court considered whether a corporation could assert religious rights and decline to provide contraceptive coverage for em- ployees as required under Obamacare. As one commentator wrote in anticipa- tion of the Court’s ruling, the case could “prove to be an unholy alliance of corporate personhood doctrine, religious freedom claims, and abortion rights.”4 When the Court ruled—upholding certain religious rights for corporations— public reaction was swift and dramatic. Newspaper editorial boards across the country alternately praised and condemned the decision in sweeping terms.5 1 Alan J. Meese & Nathan B. Oman, Hobby Lobby, Corporate Law, and the Theory of the Firm: Why For-Profit Corporations Are RFRA Persons, 127 HARV. L. REV. F. 273, 273 (2014). 2 Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 311 (2010). 3 See generally Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012). 4 Dahlia Lithwhick, Corporations Are People, the Biblical Sequel, SLATE (Nov. 26, 2013, 3:25 PM), http://www.slate.com/articles/news_and_politics/jurisprudence/2013/11/supreme_ court_and_obamacare_contraception_mandate_are_companies_persons.html. 5 Compare Editorial, High Court Ruling a Win for Hobby Lobby, Religious Liberty, DAILY OKLAHOMAN, July 1, 2014, http://newsok.com/high-court-ruling-a-win-for-hobby-lobby- religious-liberty/article/4984227 (“In ruling on the side of Hobby Lobby, the U.S. Supreme Court struck a welcome blow for religious liberty, which the Obama administration put in the cross hairs by inserting a misguided contraceptive mandate in the president’s health care law.”), Editorial, “A Victory for Freedom,” AUGUSTA CHRON., June 30, 2014, http://chron icle.augusta.com/opinion/editorials/2014-06-30/victory-freedom (“If you like your religious freedoms, you can keep them. For now.”), and Editorial, Justices Strike A Sound Balance in Hobby Lobby Ruling, NEWSDAY, June 30, 2014, http://www.newsday.com /opinion/justices- strike-a-sound-balance-in-hobby-lobby-ruling-editorial-1.8619295 (“Abortion and Obamac- are are an explosive mix but the U.S. Supreme Court appears to have charted a viable course through this minefield on Monday.”), with Editorial, Limiting Rights: Imposing Religion on Workers, N.Y. TIMES, June 30, 2014, http://www.nytimes.com/2014/07/01/opinion/the- supreme-court-imposing-religion-on-workers.html (“The Supreme Court’s deeply dismaying decision on Monday in the Hobby Lobby case . grant[s] owners of closely held, for-profit companies an unprecedented right to impose their religious views on employees.”), Kevin Horrigan, Editorial, In Hobby Lobby, Court Rules
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