Sorry, but now you have shifted to a completely different argument. The alleged imposition on employees has nothing to do with corporate law; that argument would be exactly the same if Hobby Lobby were a sole proprietorship.
If Hobby Lobby wins, the employees will not receive a particular benefit from Hobby Lobby, and that benefit has some economic value to those employees who would use it. The relevance of that fact is a genuine issue. But it is not an imposition of the Greens' religion on the employees. No employee is forced to live by Hobby Lobby's religious values; they are entirely free to buy emergency contraception with their own money. The only people at risk of being forced to live by other people's religious values in this case are the Greens. On Wed, 11 Jun 2014 22:27:34 +0000 "Daniel J. Greenwood" <daniel.greenw...@hofstra.edu> wrote: >Corporate law is clear. Hobby Lobby’s assets do not belong to the Greens and >they are forbidden by law from acting as if they owned them. This is true in >each of their corporate roles. > >So either they are claiming that their own religious exercise is burdened >because they are not allowed to use property not their own in violation of law >– in which case, Free Exercise is burdened by the ordinary rules of property, >theft and fraud. How is their claim different from a claim that Hobby Lobby >need not pay its suppliers or label its goods honestly, because they prefer to >maximize profits in order to use the corporation’s funds for religious >purposes? > >Or they are claiming that the corporation’s exercise rights are burdened, in >which case they have transformed the Free Exercise clause into an endorsement >of Establishment: > >Granting Exercise rights to an organization is the same as allowing the >organization’s leaders to impose the leaders’ religious views on followers. >In my view, this is the simplest way to understand what the Greens are >demanding here -- they seek to establish their religious views in Hobby Lobby, >coercively requiring all Hobby Lobby employees to set aside personal views in >favor of the institutional view. > >This is not a Free Exercise claim at all. It’s just a question of corporate >law – does corporate law grant the executives, directors, shareholders or >trust beneficiaries the right to establish a corporate religion and impose it, >through contract and agency, on employees? Corporate law is clear that >neither shareholders nor trust beneficiaries have any such right. It is less >clear about executives and directors. I’m no Free Exercise expert, but I >don’t see how the right to impose your religion on others – whether protected >by state corporate law or not, and however modified by Federal limitations on >the rights of employers – could be a Free Exercise right, and or limiting it a >burden on Free Exercise. > > >From: Douglas Laycock [mailto:dlayc...@virginia.edu] >Sent: Wednesday, June 11, 2014 5:09 PM >To: Daniel J. Greenwood; 'Law & Religion issues for Law Academics' >Subject: RE: Simple Hobby Lobby question > >In the RFRA context, moral responsibility is what we’re talking about. The >Green’s religious exercise is burdened because they are being required to >violate the moral obligations of their faith. > >I agree about the effects of limited liability in tort and contract. I should >have been more clear that, as the child porn example suggested, that I was >thinking of criminal responsibility. An individual cannot insulate himself >from criminal prosecution by setting up a corporation that he wholly controls >and then causing the corporation to violate the law. There are also >non-criminal regulatory examples, such as the liability of controlling >shareholders under the securities laws. > >I am no expert in these areas and can’t cite you a string of cases, although I >could cite a few. But a closely held corporation is not a get-out-of-jail-free >card. And it doesn’t really matter whether the government says the controlling >individuals are liable for what the corporation did, because they controlled >it, or are liable for what they did individually in their roles as >shareholders, directors, or officers. Either way you formulate it would be >equally applicable to the Greens. > >Douglas Laycock >Robert E. Scott Distinguished Professor of Law >University of Virginia Law School >580 Massie Road >Charlottesville, VA 22903 > 434-243-8546 > >From: Daniel J. Greenwood [mailto:daniel.greenw...@hofstra.edu] >Sent: Wednesday, June 11, 2014 4:55 PM >To: Douglas Laycock; Law & Religion issues for Law Academics >Subject: RE: Simple Hobby Lobby question > > >I think this is not a correct statement of corporate law. > > > >The owners of a closely held corporation are morally responsible for the >corporation's actions. After all, the shareholders (or the trustees) are the >voters for the board that is the corporation's ultimate decisionmaker, and if >the shareholders are able to act unanimously, they can call an election at any >time, so that, functionally if not legally, the directors serve at their >pleasure. So the Greens are correct to feel responsible for Hobby Lobby's >actions in their beneficiary of the shareholder trust role. (If I understand >the facts correctly, they are also directors of the firm. In that role, they >have actual control, within the constraints of fiduciary duty, and certainly >are morally responsible for their actions.) > > > >However, the main point of corporate status is that the shareholders are not >legally responsible for the corporation's actions. This is almost certainly >why the Greens chose to organize the firm as a corporation. If Hobby Lobby >poisons its customers or employees or neighbors, or if it attempts to sell >products that no one is willing to buy, the shareholders have no legal >obligation at all. The corporation, to be sure, is liable for its torts and >contracts. But if the default is large enough to leave the corporation >insolvent, the victims are out of luck. The shareholders have no obligation >to pay corporate obligations, to fund the corporation adequately, to replenish >its capital or to return dividends or other payments it may have made to them >in the past (assuming they were proper when made). > > > >Moreover, the shareholders, as shareholders, have no responsibility at all for >the actions of directors they elected or employees the directors hired, even >if the shareholder knew, or should have know, the directors were acting in >violation of their fiduciary duties. > > > >The only time the shareholders are legally responsible for the corporation's >actions is if they disregard corporate form -- for example, by seeking to >control the corporation in their shareholder role, by extracting funds from it >in violation of corporate law, or by treating corporate assets as their own. > > > >Similarly, directors ordinarily are also immune from legal responsibility for >their actions, even if those actions wrong another. The victims must sue the >corporation, and the corporation alone. The corporation would have a >claim-over against the directors if they violated their fiduciary duty, but >under the business judgment rule the directors are not liable for ordinary >negligence or for mistakes of judgment. More importantly, only the directors >or the shareholders have standing to bring this suit – so it is irrelevant in >a closely held corporation where the directors and the shareholders have a >unified interest. > > > >In short, the primary reason to organize as a close corporation is to avoid >legal responsibility. > > > >Note that the Greens' decision to adopt corporate form was entirely voluntary >and the directors and shareholders may reverse it at any time. If they want >to be legally responsible for the actions of their firm, they need only >organize as a partnership. > > > >In this case, they appear to be attempting to be a corporation when it is to >their advantage – that is, they have organized it as a corporation with the >shares held by a trust in order to establish that they are NOT responsible for >the corporation’s torts, contracts, taxes or violations of law. But at the >same time, they want to ignore the corporation when that is to their >advantage, claiming that the corporation’s actions to purchase health >insurance are their actions or made with their money, as if the corporation >didn’t exist at all. There is something quite wrong about a plaintiff, having >taken advantage of the extraordinary privilege of irresponsibility, then >turning around and saying, in effect, “never mind, right now and for this >purpose only, I want to be responsible – but only so long as it helps me.” > > > >If this were a corporate law case instead of a constitutional law case, that >two-sidedness would be clear evidence of fraud and a basis to conclude that >the corporation doesn’t really exist at all – to pierce the corporate veil and >disregard corporate form. > > > > > >-----Original Message----- >From: Douglas Laycock [mailto:dlayc...@virginia.edu] >Sent: Tuesday, June 10, 2014 10:23 PM >To: Law & Religion issues for Law Academics; Daniel J. Greenwood >Subject: Re: Simple Hobby Lobby question > > > >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. > > 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.
