Hobby Lobby brief: http://sblog.s3.amazonaws.com/wp-content/uploads/2014/02/13-354-bs-1-copy.pdf
Government brief in Conestoga Wood: http://sblog.s3.amazonaws.com/wp-content/uploads/2014/02/13-356bsUnitedStates-copy.pdf I have a question for the members of the listserv: The main point of the government brief is that -- whether one views the important question as being whether the claim ought to be excluded at the outset because it's brought by a for-profit corporation and its owners, or as being whether the claim should survive application of RFRA -- for-profit employers should not be entitled to RFRA exemptions at the expense of their employees. That is to say, the Court should basically adopt what appeared to have been the stand-alone "holding" in Part III of *Lee*. Here are the key passages from pages 18 and 11: *Petitioners do not cite a single case predating litigation over the contraceptive-coverage provision in which a court held that either the Free Exercise Clause or RFRA entitled a for-profit corporation--or its owners, managers, or directors--to a corporate exemption from generally applicable business or employment regulation. *To the contrary, this Court has held that "[w]hen 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." Lee, 455 U.S. at 261. Lee rejected the free-exercise claim of a sole proprietor personally subject to liability for violating the generally applicable provision he challenged. See Gov't Hobby Lobby Br. 18. The logic of that decision is even more compelling when such a claim is advanced by a for-profit corporation, such as Conestoga. Lee is part of the pre-Smith jurisprudence that Congress meant RFRA to restore, see id. at 15-16, and its rule should dispose of this case. * * * *There is no tradition in our Nation of providing for-profit corporations with religion-based exemptions from neutral and generally applicable laws.*Our traditions instead reflect an understanding that to carve out an exemption based on the asserted exercise of religion by for-profit corporations would upset the balance not simply between adherents and the government, but rather among adherents, the government, and employees and other third parties who may not share the religious views of the corporation's owners. Here's my question for the list, prompted by the government's formulation: Put aside the question of incorporation, as such. Have there been any cases, ever, in which a *for-profit employer* has been afforded a RFRA or Free Exercise exemption to the detriment of its employees, based either on its own or its owners/directors' religious exercise? [Please note that I am not arguing that if there is no such historical example, it means these cases should (or should not) be dismissed. I'm merely wondering whether the historical account is correct.] Apologies if this is addressed in one of the amicus briefs and I overlooked it. Thanks in advance for any information.
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