I would add that it is likely that Hobby Lobby is acting in the interests of the corporation in this instance, including the fiduciary interest; scores of people shop at Hobby Lobby because they like what it stands for. Take that away, or make it seem as if they have abandoned it, and it can't help Hobby Lobby's marketing (see the Boy Scouts).
Richard Dougherty University of Dallas On Tue, Jun 10, 2014 at 9:23 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. > >
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