Re: Simple Hobby Lobby question
Got it -- I see the distinction. To put it in the imposition terms the Court used in Lee, one could say it's the difference between an employer imposing his religious faith on his employees (e.g., by requiring them to participate in prayer meetings contrary to their own beliefs) and an employer imposing some of *the costs* of his religious faith on his employees (e.g., denying them an employee benefit because of the employer's religious opposition to the benefit). Even though Lee used the former phrase, it clearly was relying on the latter concept when it explained the burden that granting an employer exemption would impose on the employee. Nonetheless, since that's the same burden on employees at issue in Hobby Lobby, it would seem like Lee should still control. Alas, I suspect a majority of the Court is not going to agree with my view on that ... - Jim On Thu, Jun 12, 2014 at 8:37 AM, Douglas Laycock dlayc...@virginia.edu wrote: One issue at a time. Yes, Hobby Lobby’s claim goes away if we accept Marty’s argument that Hobby Lobby has a viable option to just discontinue its health insurance plan. I was addressing a different issue. Any burden on the employees is economic. They are not forced to adopt Hobby Lobby’s religious views, live by Hobby Lobby’s religious rules, or violate the rules of their own religions. But if Hobby Lobby is forced to pay for contraception coverage, the burden is religious. Only Hobby Lobby and the Greens are at risk of being forced to live by some other religion’s view of the matter and to violate the rules of their own religion. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 *From:* James Oleske [mailto:jole...@lclark.edu jole...@lclark.edu] *Sent:* Thursday, June 12, 2014 12:02 AM *To:* Law Religion issues for Law Academics *Cc:* Daniel J. Greenwood; Douglas Laycock *Subject:* Re: Simple Hobby Lobby question Without attempting to address the various corporate law issues being debated in this thread, I did want to ask a more intuitive question about this argument: [An exemption for Hobby Lobby] 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. Given that Hobby Lobby is entirely free to pay the opt-out tax with its own money, doesn't this argument depend on finding that the relative cost to Hobby Lobby of paying the tax is so much higher than the relative cost to employees of purchasing the disputed contraception that only the former can be deemed to constitute force or an imposition? And, at least with respect to the most effective and costly of the contraceptive methods at issue (IUDs), is it really so obvious that such a finding would be warranted? Moreover, regardless of how we might decide the imposition on employees question in the first instance, didn't the Supreme Court already address the issue explicitly in its pre-Smith jurisprudence when it said that granting the Amish employer's request for an exemption in Lee would operate to impose the employer's religious faith on the employees? Of course, if Smith had never been decided, and if the Court today was refining its own constitutional free-exercise exemption jurisprudence instead of applying a statute designed to restore the Court's pre-Smith jurisprudence, one could certainly argue that the Court should revisit the characterization of employer exemptions in Lee. But that's not where we would seem to be given the Smith decision and RFRA. - Jim On Wed, Jun 11, 2014 at 5:49 PM, Douglas Laycock dlayc...@virginia.edu wrote: 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 + 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
Re: Simple Hobby Lobby question
Religion-in-employment cases should not be one-sided or even two sided — there are at least three parties with serious interests that come into play–the employer’s religious exercise; the employees’ interest in employment, in the benefits required by law, in the employee’s (singularly or collectively) free exercise or freedom from imposition of the employer’s religion; and the interest of the people/the state/the public interest in seeing that secular purposes are followed. If RFRA is applied to protect Hobby Lobby in this case, then the various interests of the employees are being ignored and the religious interests of the employer are being allowed to trump all of the employee interests and all of the public interest that led to the neutral law in the first place. I would prefer to see this case decided on no-substantial burden grounds and the “complicity” theory utterly rejected as a grounds to refuse to comply with a secularly purposed law that has such an attenuated impact on the free exercise of anyone, but I agree with those who have noted that this requirement could well pass RFRA strict scrutiny even if the threshhold is deemed to have been met. If Hobby Lobby can ignore this law, then the concept of ordered liberty is undermined in favor of atomization and religion-based unit vetoes. That is wrong policy and is certainly not compelled as a matter of existing constitutional law or RFRA itself. Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Director of International Programs, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://sdjlaw.org There is no cosmic law forbidding the triumph of extremism in America. Thomas McIntyre ___ 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.
RE: Simple Hobby Lobby question
Doug’s comment about rhetorical flourishes is certainly fair and I am joining this conversation late. But let me push a few people. There is , of course, a libertarian claim that Hobby Lobby can never coerce employees, since no one is coerced to work for Hobby Lobby (and an analogous claim that the government can never coerce Hobby Lobby, since no one is obligated to employ other people). I take it that general agreement exists that neither of these claims is count (I share the consensus). Doug suggests the following baseline. We should be more inclined to give employers exemptions from generally applicable laws when that means they will refrain from bestowing a benefit on their employees than when they exemption will entitle them to inflict a harm. The issue is whether the benefit/harm distinction will hold. There is, of course, a gigantic literature on this and I suspect different members of the list will take different positions on what constitutes a benefit and what constitutes a harm. And some of us will suspect that we can probably with a little work translate most benefits into harms and most harms into benefits. One very standard definition is that a harm makes somebody worse off than they were previously but a benefit makes them better off (and for some reasons hinted at below, problems exist with this obvious definition). So now consider the case of X. X used to work for GM, which provided her with a health care plan that included contraceptive coverage. X then moves to Hobby Lobby. Is there refusal to provide her with a health care plan that includes contraceptive coverage a harm (her government mandated employment package is worse) or a benefit. I’m not sure and I am even less sure the harm/benefit distinction is that helpful here. MAG From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Thursday, June 12, 2014 12:03 PM To: 'Law Religion issues for Law Academics' Subject: RE: Simple Hobby Lobby question I was responding to Professor Greenwood’s rhetorical flourish, which others have also indulged, about how Hobby Lobby is imposing its religious views on its employees. The legal significance of that rhetoric, and of correcting it, may be marginal. It at least means that the employees do not have a countervailing RFRA claim or a Title VII religious-accommodation claim. But harm to third parties, or any sort, is relevant to the analysis at the compelling-interest stage. There is also a baseline question: Hobby Lobby is not affirmatively inflicting harm, but refusing to provide a benefit. And yes, employers can burden their employee’s religious practice, as lots of Title VII cases illustrate. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Graber, Mark Sent: Thursday, June 12, 2014 11:54 AM To: 'Law Religion issues for Law Academics' Subject: RE: Simple Hobby Lobby question Doug Laycock writes:.” Any burden on the employees is economic. They are not forced to adopt Hobby Lobby’s religious views, live by Hobby Lobby’s religious rules, or violate the rules of their own religions. But if Hobby Lobby is forced to pay for contraception coverage, the burden is religious. Only Hobby Lobby and the Greens are at risk of being forced to live by some other religion’s view of the matter and to violate the rules of their own religion. “ Two questions. First, could Hobby Lobby as a conceptual matter ever impose a religious burden on their employees. After all, no one is forced to work for Hobby Lobby, so even if Hobby Lobby insisted that all employees worship a golden calf, the only burden would be economic (i.e., the benefits of working for Hobby Lobby as opposed to being unemployed or having another job). (this is not a legal question concerning whether such a burden is constitutional, but a conceptual question about whether such a burden is religious or economic). Second, assume that Hobby Lobby can as a conceptual matter impose religious burdens on their employees, do religious burdens have a different status than economic burdens. Suppose, for example, a Hobby Lobby employee makes a compelling factual case that a) their religion both requires sexual activity (a reasonable interpretation of Jewish law for married persons) and contraception where the marriage partners cannot afford any or another child and b) they cannot afford contraception unless it is offered by the employer’s health care plan. Different result? I admit this is a far-fetched hypothetical, but I suspect we can quickly develop more realistic examples if religious burdens are conceptually possible. MAG
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
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
RE: Simple Hobby Lobby question
The directors’ fiduciary duty is owed to the corporation, even if it is unenforceable (because the shareholders will refuse to enforce it). And Marty is correct that the directors do decide what the corporation’s interests are. But there are limits – but they may not decide that their personal interests are the firm’s interests or that the firm’s interests are promoted by violating the law (that second point is somewhat controversial). If the firm has no religion, it has no religious interests. So the directors are acting in violation of their duty if they cause the corporation to act in accord with their own religious views at the expense of its interests (for example: paying hard cash to lawyers in this case). The First Amendment, I’d have thought, does not protect fiduciaries who seek to use money not their own to pursue the fiduciary’s values and interests in violation of their trust. There may be Freedom of Religion interests in stealing, but they are smaller than the social interest in maintaining the ordinary rules of civilization and property. If, as Richard D says, it is in the corporation’s financial interest to follow its customer’s views – that is a purely financial interest, not a religious one. Lochner might protect the firm’s interest in profit-maximization regardless of the rules of the marketplace laid down by the legislature. The Free Exercise clause surely does not. From: Marty Lederman [mailto:lederman.ma...@gmail.com] Sent: Tuesday, June 10, 2014 11:20 PM To: Law Religion issues for Law Academics Cc: Daniel J. Greenwood Subject: Re: Simple Hobby Lobby question 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.edumailto: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 + Daniel J. Greenwood daniel.greenw...@hofstra.edumailto: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
Re: Simple Hobby Lobby question
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. ___ 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.
RE: Simple Hobby Lobby question
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
Re: Simple Hobby Lobby question
It’s a quite minor and likely unimportant point in this particular exchange, I admit (unfortunately these are my specialty), but I would like to second Mark’s remark in the final paragraph of his comment below that animadversive analogy to Lochner may perhaps be inapt in this context. I take it that the crucial criticism of Lochner has to do with its dependence on unenumerated rights—constitutional or otherwise. That ought to be enough to drive a pencil through the heart of the analogy, unless one is prepared to resuscitate it with lots and lots of argument. With best wishes, Marc From: Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Date: Thursday, June 12, 2014 at 12:02 AM To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Simple Hobby Lobby question Prof. Greenwood overstates the protection corporation law gives to officers and directors from civil liability, whether or not they are shareholders. Apart from cases in which the law makes them directly responsible for the corporation's obligations (e.g., responsible person liability for unpaid withholding taxes), officers and directors generally are, as I understand the matter, liable for their own tortious actions even if performed as agents of the corporation. That is true for shareholders who actively participate in the corporation's activities and who use the corporate form in part for the benefit of limited liability. The principle of limited liability protects shareholders and officers and directors from liability for the acts of other agents of the corporation, but not for their own. The major protection is from liability for torts committed by other agents (e.g., the truck driver who negligently runs over a pedestrian) and from liability on contracts (though often the other party will insist on a personal guaranty of performance, as with many loan agreements). For a simple discussion of this from a California point of view, see http://www.centurycitybar.com/newslettertemplate/April11/article3.htm. Of course, the issue here is moral responsibility, not legal responsibility. But it's still important to see that the use of the corporate form is not the get out of jail free card that it is being portrayed as. Prof. Greenwood's use of terms like theft and fraud is not helpful in moving our discussion forward, nor is his invocation of that boogeyman of the law -- Lochner. And the business judgment rule has nothing to do with obligations to third parties, as opposed to potential liability to the corporation itself and to its shareholders Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Jun 11, 2014, at 1:58 PM, Daniel J. Greenwood daniel.greenw...@hofstra.edumailto:daniel.greenw...@hofstra.edu wrote: 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
Re: Simple Hobby Lobby question
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 + 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
RE: Simple Hobby Lobby question
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.commailto:hillelle...@gmail.com wrote: Ah. Silly me. Thank you. On Mon, Jun 9, 2014 at 1:18 PM, Greg Lipper lip...@au.orgmailto: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.commailto: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
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. On Wed, 11 Jun 2014 00:53:05 + 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
Re: Simple Hobby Lobby question
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 + 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
Re: Simple Hobby Lobby question
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 + 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. ___ 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.
Re: Simple Hobby Lobby question
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 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 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.
Re: Simple Hobby Lobby question
Ah. Silly me. Thank you. On Mon, Jun 9, 2014 at 1:18 PM, Greg Lipper 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 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 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. -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu 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 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.
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 wrote: Ah. Silly me. Thank you. On Mon, Jun 9, 2014 at 1:18 PM, Greg Lipper 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 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 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. -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu 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 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
