Chip and I are not that far apart. I agree that both Braunfeld and Lee asserted that regulation of their business affairs burdened their own, personal religious liberty. The Greens make the same claim in Hobby Lobby. And thus they would surely have standing to sue on their own behalf . . . if they had not incorporated. As I said, there are doctrines in corporate law, discussing in some of the Hobby Lobby and Conestoga briefs and opinions, that limit the sorts of personal claims that can be brought by the owners of corporations for injuries alleged to themselves by virtue of legal regulation of the corporations. I don't know enough about that law to say whether it precludes the Greens's claim.
Whether *Hobby Lobby* has its own religious liberty claim is a very different question. The claim here involves an allegation of being forced to violate a religious obligation, which I don't quite understand in the context of a for-profit corporation, which presumably does not have any religious duties. Bob Jones University raised a very different sort of claim, if I recall correctly. On Mon, Aug 5, 2013 at 10:25 PM, Ira Lupu <icl...@law.gwu.edu> wrote: > Braunfeld and Lee were men engaged in business, and both were asserting > that regulation of their business affairs (Sunday Closing law in Braunfeld; > FICA contributions in Lee) burdened their religious exercise. Those are > business claims of free exercise infringement. I don't see any way around > that characterization. > > Neither case seems to have involved the corporate form, however, and I > agree that the contraceptive mandate cases present that novel issue. But > neither the legislative history nor the pre-RFRA law will resolve it; > whether corporate identity precludes a religious liberty claim is a > question of first impression. But we all can see that corporate identity > did not preclude the claim in Bob Jones University v. U.S., and I don't > understand the logic of allowing universities to make religious liberty > claims but not business corporations. > > On the merits, I think the interests of female employees may be getting > short changed in this discussion. Cutter says that RLUIPA should be > construed, in light of the Establishment Clause, to avoid shifting > substantial costs to third parties (see TWA v. Hardison; Caldor), and that > principle of construction must apply with equal force to RFRA. If Hobby > Lobby (and others like it) are exempt from the mandate, the firm's female > employees will be made worse off; they will have to pay for their own > pregnancy prevention services. (Yes, I know the scheme is under-inclusive, > but that does not make the cost-shifting problem go away with respect to > those who are covered). Of course, the question is who should pay for these > services -- the employer, the employees, or the government. Anyone who > thinks RFRA dictates a straightforward answer to that problem is just > seeing in RFRA what he or she hopes to see. > > > On Mon, Aug 5, 2013 at 9:53 PM, Marty Lederman > <lederman.ma...@gmail.com>wrote: > >> Perhaps it's a minor point, and I'm very reluctant ever to disagree with >> Chip!, but neither Braunfeld nor Lee involved free exercise claims by >> businesses, let alone corporations. The free exercise claims in each case >> were brought by and on behalf of the individuals who owned the businesses, >> alleging burdens on their own religious exercise (and, I believe, the >> exercise of the employees in Lee, as well, if memory serves). >> >> No one disputes that in Hobby Lobby and other like cases, the individual >> owners have alleged burdens on their own religious exercise. But there are >> serious questions whether those burdens are ameliorated to a material >> degree by their choice to incorporate (thus shifting all liabilities and >> duties to the corporation); and, as I understand it, another serious >> question whether, as a matter of corporations law, the owners have >> abandoned their right to assert personal religious liberty claims by >> incorporating (bitter with the sweet, etc.). >> >> In any event, even if the right answer is that the Greens' own RFRA >> claims are viable, that does not begin to answer the question whether the >> for-profit corporation itself can sue for an alleged burden on *its >> *religious >> exercise. FWIW, I find it very difficult to understand how a for-profit >> corporation can assert the sort of claim at issue in these cases, namely, >> that compliance with the law would force them to violate a religious >> obligation. For-profit corporations, as such, don't have any religious >> obligations, far as I know. >> >> >> On Mon, Aug 5, 2013 at 8:57 PM, Ira Lupu <icl...@law.gwu.edu> wrote: >> >>> RFRA is designed to codify the pre-Smith free exercise law. That law >>> includes Braunfeld and Lee, both of which involve free exercise claims by >>> for-profit businesses. Neither opinion even hints at the idea that such >>> enterprises cannot raise claims under the free exercise clause. That is far >>> more persuasive on the point than any undisclosed legislative history of >>> RLPA. So Jim Oleske's comments on this are just spot-on. Of course, this >>> analytic approach does not answer the separate question re: corporate free >>> exercise claims. But Lee's dictum is NOT just about taxes; it is about >>> expectations and equities of employers and their employees. >>> >>> There is a deeper point lurking here. How does a statute like RFRA >>> "codify" the nuances of opinions like Lee (with its suggestion that >>> commercial businesses must accept ordinary market regulation), or Yoder, >>> which so heavily emphasizes the particular historical and cultural >>> characteristics of the Old Order Amish? Shameless plug for ancient work -- >>> I wrote about this problem in 1992, in a piece (in the Va. L. Rev.) >>> entitled "Statutes Revolving in Constitutional Law Orbits," where I >>> discussed the problems of interpreting statutes designed to codify judicial >>> opinions in constitutional cases. The article uses RFRA (not yet enacted) >>> as a prime example of the problem. >>> >>> One more point about RFRA --no one showed up to oppose it in 1991 or >>> 1992. Even in 1993, the only opposition was from state AG's, concerned >>> about prisons. I was (and remain) a RFRA skeptic. I testified (at a House >>> subcommittee hearing) in 1992 that RFRA was unconstitutional as applied to >>> the states, and that it "over-restored" free exercise principles (e.g., >>> protected military personnel in ways that Goldman v. Weinberger precluded' >>> likewise prisoners in light of O'Lone.)). The RFRA proponets at that >>> hearing treated me like a skunk at a garden party. I think members of >>> Congress were aware of none of the nuances we have been discussing. So >>> figuring out the statutory meaning re: covering for-profit corporations is >>> an exercise in complete futility. No intent was formed on this question, >>> and federal statutory definitions make a corporation a person unless the >>> context indicates otherwise. Does it? >>> >>> >>> On Mon, Aug 5, 2013 at 8:10 PM, Perry Dane <d...@crab.rutgers.edu>wrote: >>> >>>> Just a couple of points on the relevance of Lee: >>>> >>>> First, I agree with James Oleske that fitting Lee into the analysis is >>>> important. I was more concerned in my short comment ( >>>> http://ssrn.com/abstract=**2296635 <http://ssrn.com/abstract=2296635>) to >>>> make the point that questions such as the for-profit status of the >>>> employer should be addressed as part of the compelling interest analysis >>>> rather than at the threshold. >>>> >>>> Second, as to that compelling interest analysis: The quoted line from >>>> Lee needs to be understood, it seems to me, in the light of the Court's >>>> more general point about the government's compelling interest in collecting >>>> social security (and other) taxes. As I point out in my comment, >>>> governmental interest in the religion-based exemptions context should >>>> usually be measured "at the margin" and not in toto. Sometimes, though, >>>> the government has an interest, even at the margin, in applying a given >>>> rule in all cases. The Court in Lee held that the government had a >>>> compelling interest, not only in collecting taxes from Lee as such, but in >>>> maintaining a "comprehensive" system with "mandatory and continuous >>>> participation." This makes some sense, not only for actuarial reasons, but >>>> because (I extrapolate here) rendering the tax in some sense "voluntary" >>>> would make it more difficult to enforce it against everybody else. (Folks >>>> who are being told to pay money to the government justifiably resent it >>>> when other folks get a pass.) Moreover, as the Court pointed out, lots of >>>> religious groups object to lots of different expenditures to which tax >>>> revenue is applied, so that allowing an exemption would open a real >>>> floodgate. Given that systemic interest, the Court concluded that trying >>>> to carve out a constitutional exception would be infeasible. At that >>>> point, the Court had one loose end to tie up: that Congress had in fact >>>> legislated an exception for self-employed religious objectors. It was in >>>> the context of distinguishing that statutory exception from the claimed >>>> constitutional exemption that the Court wrote that: "Self-employed persons >>>> in a religious community having its own "welfare" system are >>>> distinguishable from the generality of wage earners employed by others. >>>> Congress and the courts have been sensitive to the needs flowing from the >>>> Free Exercise Clause, but every person cannot be shielded from all the >>>> burdens incident to exercising every aspect of the right to practice >>>> religious beliefs. When followers of a particular sect enter into >>>> commercial activity as a matter of choice, the limits they accept on their >>>> own conduct as a matter of conscience and faith are not to be superimposed >>>> on the statutory schemes which are binding on others in that activity." >>>> >>>> The contraception mandate, it seems to me, is quite different. Most >>>> importantly, the religious objectors are not asking to be let off the hook >>>> financially. As the government itself emphasizes (to make a different >>>> point), contraceptive coverage does not make health insurance more >>>> expensive; indeed, it probably reduces net health costs. Thus, neither the >>>> financial integrity of the system nor the possible resentment of other >>>> employers is at risk. Second, and related, with the exception of folks who >>>> might object to any health insurance or medical treatment for that matter >>>> (and who are easily distinguishable), there aren't a whole bunch of >>>> religious objectors to other specific pieces of coverage waiting in the >>>> wings. Therefore, there's no realistic floodgate problem. So while I'm >>>> happy to admit that there might be some systemic interest here, it isn't >>>> even in the ballpark of the systemic interest in collecting taxes. So.... >>>> in the light of that very different context, we're back to asking whether >>>> there's a reason to distinguish for-profit from non-profit employers. >>>> There might be, for reasons I discuss in the comment. But it's a hard >>>> question, and not one that I think Lee resolves. >>>> >>>> Regards, >>>> >>>> Perry >>>> >>>> On Aug 1, 2013, at 2:35 PM, James Oleske <joleske at lclark.edu<mailto: >>>> joleske at lclark.edu>> wrote: >>>> >>>> <snip> >>>>> >>>>> Like Professor Laycock's piece, Professor Dane's piece finds fault >>>>> with overheated claims on both sides of the debate, but I'm most >>>>> interested >>>>> in the doctrinal analysis Professor Dane offers in place of the heat. In >>>>> particular, on the issue of exemptions for for-profit institutions, >>>>> Professor Dane's analysis begins with a line that, while not explicitly >>>>> discussing the case, seems to track the approach of the Court in United >>>>> States v. Lee: >>>>> >>>>> "I do think that the for-profit status of some religious objectors >>>>> might be relevant, but at the back end – in the analysis of compelling >>>>> interest – rather than the front end determination of substantial burden." >>>>> >>>>> Professor Dane then notes that arguments can be made for and against >>>>> making distinctions between small and large businesses in determining the >>>>> government's interest in denying exemptions (I would only add that the >>>>> denial of an exemption to a very small employer in Lee may be relevant to >>>>> further exploration of these arguments). Professor Dane concludes his >>>>> analysis by stating that a "vital proposition in the conception of >>>>> religious liberty" is that "believers have at least a presumptive right to >>>>> live out the commitments of their faith across the whole range of human >>>>> activity, including the world of business and commerce." >>>>> >>>>> It is this last point that I think would benefit most from being >>>>> expanded to account for the doctrinal significance of Lee, where the Court >>>>> identified a competing presumption that comes into play in for-profit >>>>> cases >>>>> due to impact on third parties: >>>>> >>>>> "When followers of a particular sect enter into commercial activity as >>>>> a matter of choice, the limits they accept on their own conduct as a >>>>> matter >>>>> of conscience and faith are not to be superimposed on the statutory >>>>> schemes >>>>> which are binding on others in that activity. Granting an exemption from >>>>> social security taxes to an employer operates to impose the employer's >>>>> religious faith on the employ >>>>> >>>>> <snip> >>>>> >>>> >>>> >>>> ______________________________**_________________ >>>> 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<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. >>>> >>> >>> >>> >>> -- >>> Ira C. Lupu >>> F. Elwood & Eleanor Davis Professor of Law, Emeritus >>> George Washington University Law School >>> 2000 H St., NW >>> Washington, DC 20052 >>> (202)994-7053 >>> My SSRN papers are here: >>> http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg >>> >>> _______________________________________________ >>> 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. >> > > > > -- > Ira C. Lupu > F. Elwood & Eleanor Davis Professor of Law, Emeritus > George Washington University Law School > 2000 H St., NW > Washington, DC 20052 > (202)994-7053 > My SSRN papers are here: > http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg > > _______________________________________________ > 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.
