Abstract

http://ssrn.com/abstract=2254128
 


 



Do For-Profit Businesses Have Free Exercise Rights?


Robert K. Vischer


University of St. Thomas, St. Paul/Minneapolis, MN - School of Law

2013

Journal of Contemporary Legal Issues, 2013, Forthcoming
U of St. Thomas (Minnesota) Legal Studies Research Paper No. 13-13

Abstract:     
Americans are understandably troubled by the prospect of Wal-Mart and the First Presbyterian Church as conceptually identical free exercise claimants. As an expanding array of for-profit businesses sue to block enforcement of the HHS contraception mandate, there is a danger that our failure to distinguish them will weaken the protections for all institutional free exercise claimants. Except for some still largely uncontroversial questions of internal church governance, the “moral bedrock” of religious liberty is increasingly contested when invoked by institutions. Absent some categorical distinctions, we risk what Fred Schauer and others have called “institutional compression” through a process “of leveling down rather than leveling up.” Nevertheless, in the wake of Citizens United, courts may decide not to embrace potential paths of distinction. If the identity of the speaker doesn’t matter for purposes of free speech, it is tempting to say that the identity of the actor doesn’t matter for purposes of free exercise.

Foreclosing a for-profit business’s standing to raise free exercise claims entirely is not justified. However, in light of the differences between corporate political speech and corporate religious exercise, and in light of the enormous market power wielded by for-profit businesses in the provision of essential goods and services, including the paths by which to earn a livelihood, a court would be justified in interpreting free exercise doctrine to reflect institutional distinctions.

Number of Pages in PDF File: 41

Keywords: law and religion, free exercise of religion, religion and business, contraception mandate

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Date posted: April 20, 2013  

Suggested Citation

Vischer, Robert K., Do For-Profit Businesses Have Free Exercise Rights? (2013). Journal of Contemporary Legal Issues, 2013, Forthcoming; U of St. Thomas (Minnesota) Legal Studies Research Paper No. 13-13. Available at SSRN: http://ssrn.com/abstract=2254128

Contact Information

Robert K. Vischer (Contact Author)
University of St. Thomas, St. Paul/Minneapolis, MN - School of Law ( email )
MSL 400, 1000 La Salle Avenue
Minneapolis, MN Minnesota 55403-2005
United States
651-962-4838 (Phone)
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