Duty or Dignity? Competing Approaches to the Free Exercise Rights of For-Profit Corporations
23 Pages Posted: 14 Jan 2014 Last revised: 25 Jun 2014
Date Written: September 20, 2013
The arguments in Hobby Lobby illustrate the significant difference between viewing religious accommodation as a protection of a particular type of action and viewing religious accommodation as a protection of a particular type of actor. This Note argues that Michael McConnell's originalist paradigm treats accommodation as a protection for actions and that Douglas Laycock's liberal paradigm treats accommodation as a protection for actors.
Action and actor may appear difficult to divorce in a practical sense, but the distinction between religious actors and religious actions as a basis for religious exemptions is more than academic. The originalist framework understands a free exercise claim to be legitimated by the religious nature of an action — the fact that the action is taken to discharge a duty owed to a deity. It looks to the actor only to define the content of the claim — to explain what duty the actor seeks to have the state accommodate. The liberal framework moves in the opposite direction. It understands a claim to be legitimated by the religious nature of an actor — the actor’s capacity for strong conviction and deep emotion. It looks to the action only to define the content of the claim — to explain what conduct the actor seeks to have exempted.
These fundamentally different perspectives have practical implications for corporate free exercise. In the originalist framework, categorical bars based on the identity of a free exercise claimant are unjustified because a claimant’s identity has nothing to do with whether the claimant is acting according to a religious duty imposed by a deity. Corporations therefore have free exercise rights, and the first question in any case is not whether the claimant has standing, but what duties the actor believes it owes to a deity. The relevant religious duties may be those which bind the corporation itself or those which bind an individual whose actions are impacted by corporate regulation. The originalist has no difficulty legitimating the claim but may struggle to identify the relevant religion when a corporation formally states its intention to follow the principles of one religion although its shareholders are religiously diverse.
The liberal framework has more difficulty legitimating the claim but less difficulty determining what religious beliefs would be relevant if the claim were recognized. In the liberal framework, evaluating the possibility of a categorical bar to free exercise claims by for-profits requires evaluating whether categories of corporate law coincide with categories of claimants who have (or lack) dignity equal to that of a human being. In this analysis, a categorical bar on free exercise claims designed to vindicate the rights of corporations as such is justified. However, it is unclear in a liberal framework whether corporations should be able to seek exemptions for the purpose of vindicating individual rights. A liberal who accepted corporate free exercise would consider only the beliefs of individuals to be relevant and would likely reject claims by corporations whose shareholders are religiously diverse.
The liberal framework has been described as broader than the originalist because it is perceived to embrace a wider range of action — actions motivated by secular conscience in addition to actions motivated by religious conscience. With respect to the range of actors capable of making a claim for a religious exemption, however, the principles of the originalist framework are more inclusive than those of the liberal framework. The originalist believes in principle that free exercise protects religious actions by any actor, including corporations and their shareholders. By contrast, the liberal approach cannot justify protections for corporations as such. Insofar as it can justify corporate claims to protect shareholders, it protects corporations only because a category of corporate law happens not to align with the category of actors — those with dignity unequal to that of a human being — that liberal principles would exclude from the enjoyment of religious liberty. The originalist’s religious freedom is not a subcategory of the liberal’s freedom of conscience. Rather, religious freedom and freedom of conscience are overlapping but distinct concepts. One recognizes duty to God. The other recognizes dignity in man.
Keywords: Religious liberty, religious freedom, free exercise, corporate free exercise, Hobby Lobby, Conestoga Wood, contraception mandate, HHS mandate, Religious Freedom Restoration Act, RFRA, First Amendment, Free Exercise Clause
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