Caroline Mala Corbin (University of Miami School of Law) has recently posted two papers on SSRN discussing her thoughts on corporate religious liberties. The first apears in the American Constitution Society Issue Brieff for January 2014 and is entitled: Corporate Religious Liberty: Why Corporations Are Not Entitled to Religious Exemptions.
Here is the abstract:
One of the main questions before the Supreme Court in Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius is whether large for-profit corporations are entitled to religious exemptions under the Free Exercise Clause or the Religious Freedom Restoration Act. In particular, the plaintiffs seek religious exemptions from the Affordable Care Act’s so-called “contraception mandate.”
This is an entirely novel claim. It is also without merit. The Free Exercise Clause and the Religious Freedom Restoration Act protect the religious practices of individuals and churches. They do not, and should not, extend to the for-profit corporate form for at least three reasons. First, corporate religious liberty makes no sense as free exercise is understood to (a) protect an individual’s relationship with the divine and (b) respect the inherent dignity of the individual. Furthermore, Citizens United v. Federal Election Commission provides no theoretical foundation for corporate religious liberty: The justifications for extending free speech protection to for-profit corporations do not translate into the free exercise context. Second, there is no precedent for the claim that for-profit corporations are entitled to religious liberty exemptions; on the contrary, precedent points in the other direction. Third, recognizing corporate religious liberty will benefit employers at the expense of their employees, who risk losing protection of the employment laws as well as their own free exercise rights.
The second (longer) piece is entitled: Corporate Religious Liberty.
Here is the abstract:
Do for-profit corporations have a right to religious liberty? This question is front and center in two cases before the Supreme Court challenging the Affordable Care Act’s “contraception mandate.” Whether for-profit corporations are entitled to religious exemptions is a question of first impression. Most scholars writing on this issue argue that for-profit corporations do have the right to religious liberty, especially after the Supreme Court recognized that for-profit corporations have the right to free speech in Citizens United.
This essay argues that for-profit corporations should not – and do not – have religious liberty rights. First, there is no principled basis for granting religious liberty exemptions to for-profit corporations. For-profit corporations do not possess the inherently human characteristics that justify religious exemptions for individuals. For-profit corporations also lack the unique qualities that justify exemptions for churches. Citizens United fails to provide a justification as its protection for corporate speech is based on the rights of audiences and not the rights of corporate speakers. Second, as a matter of current law, neither the Free Exercise Clause nor the Religious Freedom Restoration Act recognizes the religious rights of for-profit corporations. Finally, corporate religious liberty risks trampling on the employment rights and religious liberty of individual employees.
Two very interesting reads on a hot current legal topic that could have a large impact on the workplace. Check them out!
This article was originally printed on Workplace Prof Blog on January 28, 2014. Reprinted with permission.
About the Author: Paul Secunda is a professor of law at Marquette University Law School. Professor Secunda is the author of nearly three dozen books, treatises, articles, and shorter writings. He co-authored the treatise Understanding Employment Law and the case book Global Issues in Employee Benefits Law. Professor Secunda is a frequent commentator on labor and employment law issues in the national media. He co-edits with Rick Bales and Jeffrey Hirsch the Workplace Prof Blog, recently named one of the top law professor blogs in the country.
