Religion & Liberty Online

Argument Outline: Why Religious Freedoms Apply to For-Profit Corporations

corporations_are_people_too_by_biotwist-d4hnskt[Note: “Argument Outline” is a new occasional series that provides summaries of religious, economic, and public policy arguments presented in the public square.]

The Religious Freedom Restoration Act (RFRA) states that government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except in certain conflicts with a compelling governmental interest. That seems straightforward enough, but what does this law mean when it refers to a “person”? For instance, can a corporation like Hobby Lobby be a person under this Act?

Even some people who are sympathetic to Hobby Lobby’s fight to avoid being forced to violate their conscience may wonder if it makes sense to give such broad-based religious liberty protections to corporate entities. But in a recent article in the Harvard Law Review, Alan Meese and Nate Oman make the case that the most natural reading of the term ‘person’ in RFRA includes for-profit corporations, and why they should be afforded the same religious freedoms as individuals.

The following is a summary outline of the argument they present in this law review article:

There is no legal justification for excluding corporate persons from RFRA protections.

  • The Supreme Court has repeatedly held that for-profit corporations are constitutional “persons.”
  • For-profit corporations embodying shareholders’ religions are common, passing without corporate law objections. Corporations whose owners “impose their personal religious beliefs” on the firm are also common.
  • Nothing about limited liability or entity status justifies stripping corporations, whether for-profit or non-profit, of their religious personhood. Therefore, shareholders’ ability to pursue their religious values via the corporate form should not turn on whether they have forsaken limited liability.

Religious for-profit businesses do not violate corporate law or undermine corporate law policies.

  • RFRA gives courts various tools for addressing any unique challenges posed by public corporations. There is thus no apparent rationale for categorically depriving such firms of RFRA personhood.
  • Federal law and the laws of some states already authorize some for-profit corporations to decline to perform or pay for certain medical procedures because of religious or moral objections.
  • For-profit corporations have been asserting religious identities in commercial and legal arenas for decades.
  • There has been no flood of shareholder derivative suits challenging a firm’s adoption of a religious identity or failure to adopt such an identity. In fact, the scholars do not cite a single example of a corporate governance dispute connected to such decisions.

Religious freedoms apply not only individuals by to corporate bodies.

  • When individuals act religiously using corporations they are engaged in religious exercise. When we regulate corporations we in fact burden the individuals who use the corporate form to pursue their goals.
  • Religious freedom is broader than an individualist concern with personal rights. Rather, it is about limiting the ability of the state to regulate a particular kind of conduct — religious exercise — even when corporate bodies engage in that conduct.
  • People practice religion collectively. To protect religion only within the confines of personal conscience or individual action would do great violence to lived religion.
  • Many for-profit corporations are infused with religious values and religious missions. Some for-profit corporations are solely owned by churches. The owners of these corporations can feel called on to infuse their business activities with religious values.

(Via: Mark Movsesian)

Joe Carter

Joe Carter is a Senior Editor at the Acton Institute. Joe also serves as an editor at the The Gospel Coalition, a communications specialist for the Ethics and Religious Liberty Commission of the Southern Baptist Convention, and as an adjunct professor of journalism at Patrick Henry College. He is the editor of the NIV Lifehacks Bible and co-author of How to Argue like Jesus: Learning Persuasion from History's Greatest Communicator (Crossway).