Actually, in order to make the hypothetical analogous to these cases . . . well, it really can't be made analogous, because providing a health insurance plan that covers all recognized medical treatments without exception can't be analogized to choosing to use slave labor in any serious moral universe. But even putting that aside . . .
. . . one would have to posit a closely held corporation that for many years refuses to use slave labor . . . until the federal government requires *all* large employers to use slave labor, at which point no one would consider the owners of that corporation to be morally responsible, especially after the owners inveigh against the moral evil of the new law -- reasonable observers would properly direct their opprobrium to the government itself. Let me be clear: I'm not saying the owners of these corporations do, or do not, have standing to bring RFRA claims based on legal obligations imposed on the corporations. I haven't done enough research to have a view on the question. In fact, the only "research" I've done at all is to read the various opinions on the question in the courts of appeals cases, which I recommend to you all. (See, e.g, the Matheson and Bacharach opinions in Hobby Lobby.) But there was a reason the majority in Hobby Lobby chose not to reach the question of the Greens' standing -- presumably because it raises difficult and thorny questions under corporations law. Instead, the majority held that the corporation itself had standing based on an alleged burden on its own religious exercise -- and it's that holding that I find implausible. On Tue, Aug 6, 2013 at 9:26 AM, Douglas Laycock <dlayc...@virginia.edu>wrote: > For folks having trouble with Eugene’s hypothetical, think about an > activity that most secularists would also think is seriously wrong. Suppose > I form a wholly owned corporation, and my corporation uses slave labor for > hazardous work, with many deaths and injuries among the workers, in some > developing country. When I’m exposed in the press and subjected to intense > public criticism, I just say: “It’s not me. It’s a corporation.”**** > > ** ** > > I don’t think my critics would be the least bit mollified. They would > still view me as morally responsible, as well they should. **** > > ** ** > > 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.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Volokh, Eugene > *Sent:* Tuesday, August 06, 2013 12:40 AM > *To:* Law & Religion issues for Law Academics (religionlaw@lists.ucla.edu) > *Subject:* Closely-held corporations, owners of corporations, and RFRAs*** > * > > ** ** > > Why would doctrines of corporate law bar a closely held > corporation’s owners from asserting that a regulation of the corporation > substantially burden their religions? I would think that federal courts’ > application of corporate law is as subject to RFRA as its application of > other laws.**** > > ** ** > > Let’s take a simple example: Say that a state has a RFRA, > but also has a law requiring all gas stations to be open seven days a > week. John Smith and his brother Peter Smith co-own a gas station, through > a closely held corporation (Smithcorp). They have a religious objection to > having any business they own operating on their Sabbath (say, Saturday), > and they sincerely believe that this also applies to businesses that they > own through a corporation. (Lots of people, of course, sincerely believe > that if it’s wrong for them to do something, it would be wrong for them to > do it through the corporate form. Indeed, I think we’d look askance at > someone who says, for instance, “Yes, I think it’s wrong for me to sell > meat products, or for me to let meat products be sold on my property, but > it’s just fine for meat products to be sold on the property of a > corporation of which I am a sole owner”; the corporate form is a useful > legal concept that may have great legal effects, but few people see it as > morally significant in distancing a person from what his business does.)** > ** > > ** ** > > I would think that the state law substantially burdens the > Smiths’ religious exercise. It puts them to the choice of (1) doing > something that they believe is religiously forbidden (have a corporation > that they own operate on a Saturday) or (2) giving up the corporate form, a > device of very substantial value to a business (cf. Sherbert v. Verner). > Perhaps the state can overcome the RFRA claim under strict scrutiny, but I > don’t see how the business’s being a corporation weakens the Smiths’ RFRA > claim.**** > > ** ** > > Now of course if the Smiths did *not *sincerely believe > that it was religiously wrong for them to have their corporate-owned gas > station to be open Saturdays (maybe they viewed the corporation as a legal > Shabbes goy?), then their RFRA claim would be a loser. But so long as they > believe that it’s a sin for them to operate their corporation in such a way > that the station is open Saturdays, I would think that the substantial > burden requirement is satisfied. Or am I missing something?**** > > ** ** > > Eugene**** > > _______________________________________________ > 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.
