Lord knows Doug and I have plenty of differences on this case, but on this one we agree, at least roughly speaking. The directors may have a duty to act in the corporations' interests . . . but they are also the ones here who decide what those interests are. There are no stockholders to whom they owe a fiduciary duty. Accordingly, if they freely chose to run the corporation in a way that violated their own religious tenets, well, then, they would have violated their religious tenets.
The real problem in this respect for the Greens is that they have few if any decisions to make here -- the preventive services are required *by law* if the Greens choose for HL to offer an employee insurance plan. However, as I've been stressing, they *do* have to decide whether HL will provide a health plan at all . . . and *that *decision might implicate their perceived religious obligations. More to this effect toward the end of my post: http://balkin.blogspot.com/2014/01/hobby-lobby-part-v-whose-religious.html On Tue, Jun 10, 2014 at 10:23 PM, Douglas Laycock <dlayc...@virginia.edu> wrote: > The thoughts below may well be right for a corporation with religiously > diverse ownership. But Hobby Lobby is closely held, with a voting trust > created in part to ensure that the business would be run consistently with > the family's religious commitments. > > In public opinion, and often in law, we hold controlling shareholders > morally and often legally responsible for the wrongdoing of the > corporation. It is hardly unusual or counter normative for the Greens to > feel morally responsible for what they do with the corporation's money. > > If their bookstore affiliate were selling child porn instead of Christian > books, we would hardly excuse the owners who made all the decisions for the > corporation on the ground that it wasn't them that did it, it was the > corporation. > > On Wed, 11 Jun 2014 00:53:05 +0000 > "Daniel J. Greenwood" <daniel.greenw...@hofstra.edu> wrote: > >Surely directors have a fiduciary duty as a matter of state law to set > aside their personal beliefs and act in the interests of the corporation – > not their own souls – according to their best professional judgment. > > > >It would be strange indeed to discover that the First Amendment > nationalizes and constitutionalizes basic aspects of corporate law, barring > corporate law from requiring directors to act as fiduciaries. > > > >It would be stranger still to discover that directors have a right to > spend money that is not theirs -- wealth that was created by the work of > the employees mixed with the capital of shareholders, lenders and past > employee work – for their own purposes rather than the corporations. > That’s theft. Does the First Amendment really protect theft? > > > >Directors act for the corporation. If the corporation cannot exercise > religion, they have no right to cause it to spend (or not spend) money or > violate otherwise applicable law in order to practice their personal > religions. > > > >On the other hand, if the corporation can exercise religion, they have an > obligation to cause it to do so whenever it is in its interest to do so – > which, I suppose, means whenever in their professional judgment doing so > would protect its soul, or if it has no soul, whenever its earthly > interests will be furthered by religious practice. Moreover, if the First > Amendment protects the corporation’s religious rights, ordinary corporate > law suggests that the directors are obliged to cause it to practice > whatever religion will result in promoting those interests. This might > mean, for example, choosing the religion that maximizes profit in some > sense, or that promotes the corporation’s product. > > > >Directors have a great deal of freedom to determine what the > corporation’s interests are. But as a matter of corporate law, they have > no right to substitute their own values for its interests. > > > >Again, it seems bizarre to hold that the First Amendment protection of > freedom of religion protects directors in their fiduciary role: by > assuming the role of fiduciary, they have given up their freedom to act > according to their personal consciences. > > > >Switching the analysis to RFRA helps slightly – at least corporate law > does not become a part of First Amendment law. But it is still quite > implausible that the Congress meant to nationalize a traditionally state > law area without explicit consideration of the implications. > >From: Marty Lederman [mailto:lederman.ma...@gmail.com] > >Sent: Monday, June 09, 2014 5:52 PM > >To: Law & Religion issues for Law Academics > >Subject: Re: Simple Hobby Lobby question > > > >I actually think the "can corporations exercise religion?" question is a > red herring. As is the "shareholder right-to-sue" question. The gist of > the claims in these cases are that the individual plaintiffs, the Hanhs and > the Greens, have had their religious exercise burdened in their capacities > as company directors. I think the Court will vote 9-0 on the question of > whether someone can sue under RFRA in these circumstances. (I think that > someone ought to be the Greens and Hahns in their "director" capacities; > but whatever the theory, I doubt any Justice will vote to throw out the > cases at the "threshold.") > > > >The real question at stake in the cases is whether actors in the > commercial sphere (corporate or not) should ever be able to prevail on the > merits when granting them a religious exemption would mean significantly > burdening third parties (competitors, customers, or, as here, employees). > The answer to that question has been a resounding "no" for virtually the > entire history of FEC/RFRA jurisprudence, going back 70 years. It's that > tradition that is at stake. > >I have a bunch of posts on these and related questions if anyone's > interested: > > > > > http://balkin.blogspot.com/2014/02/compendium-of-posts-on-hobby-lobby-and.html > >On the points discussed immediately above, see, e.g.: > > > > > http://balkin.blogspot.com/2014/02/compendium-of-posts-on-hobby-lobby-and.html > > > >http://balkin.blogspot.com/2014/03/hobby-lobby-part-xiii-shareholder.html > > > > > http://www.scotusblog.com/2014/02/symposium-how-to-understand-hobby-lobby/ > > > > > http://balkin.blogspot.com/2014/03/hobby-lobby-part-xi-governor-brewers.html > > > >On Mon, Jun 9, 2014 at 1:39 PM, Hillel Y. Levin <hillelle...@gmail.com > <mailto:hillelle...@gmail.com>> wrote: > >Ah. Silly me. Thank you. > > > >On Mon, Jun 9, 2014 at 1:18 PM, Greg Lipper <lip...@au.org<mailto: > lip...@au.org>> wrote: > >The question isn’t only whether Hobby Lobby (and other for-profit > corporations that sell secular goods/services) are persons, but rather > whether they are persons that “exercise religion.” If they are not > exercising religion, then RFRA is not triggered, no matter how much > personhood they have. > > > > > > > >On Jun 9, 2014, at 12:39 PM, Hillel Y. Levin <hillelle...@gmail.com > <mailto:hillelle...@gmail.com>> wrote: > > > >> Why doesn't 1 USC sec. 1 resolve the first-stage question in Hobby > Lobby (whether RFRA applies to corporations)? "[T]he words “person” and > “whoever” include corporations, companies, associations, firms, > partnerships, societies, and joint stock companies, as well as individuals." > >> > >> Are the two sides really just arguing about whether [RFRA's] "context > indicates otherwise" (1 USC 1) sufficiently to overcome this strong > definitional statement? > >> > >> If so, much as I'd personally like for Hobby Lobby to lose this case, > I'd think that the on this question at least, the plaintiffs have to win. > After all, we have a strong statutory definition, with at best equivocal > contextual evidence to the contrary. > >> > >> What am I missing? Are there cases dealing with the "context" language > in 1 USC 1? > >> _______________________________________________ > >> To post, send message to Religionlaw@lists.ucla.edu<mailto: > Religionlaw@lists.ucla.edu> > >> To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > >> > >> Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > > > >_______________________________________________ > >To post, send message to Religionlaw@lists.ucla.edu<mailto: > Religionlaw@lists.ucla.edu> > >To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > > >Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > > > > > > > >-- > >Hillel Y. Levin > >Associate Professor > >University of Georgia > >School of Law > >120 Herty Dr. > >Athens, GA 30602 > >(678) 641-7452<tel:%28678%29%20641-7452> > >hle...@uga.edu<mailto:hle...@uga.edu> > >hillelle...@gmail.com<mailto:hillelle...@gmail.com> > >SSRN Author Page: > http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 > > > >_______________________________________________ > >To post, send message to Religionlaw@lists.ucla.edu<mailto: > Religionlaw@lists.ucla.edu> > >To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > > >Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > > > > Douglas Laycock > Robert E. Scott Distinguished Professor of Law > University of Virginia Law School > 580 Massie Road > Charlottesville, VA 22903 > 434-243-8546 > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. >
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
