Free Exercise, Inc.: A New Framework for Adjudicating Corporate Religious Liberty Claims

Abstract

Do corporations deserve religious liberty protection? This question came to the forefront in the series of contraception mandate cases leading to a circuit split and the controversial Supreme Court decision in Burwell v. Hobby Lobby Stores, Inc. This Note looks past that debate to the actual potential effects of business regulation on individuals, and develops a framework for considering corporate religious liberty claims that account for those individual burdens. Part I provides the relevant background information to understand the contraception mandate issue that led to Burwell. Part II then demonstrates that regulatory burdens that fall on secular, for-profit corporations can nonetheless burden their individual owners by putting them to the choice of either disobeying the dictates of their religion or facing adverse financial consequences. Part II then shows that nothing in corporate law lessens this burden or requires that it be ignored, and points to ambiguities in even the Burwell majority opinion that may prevent courts from properly recognizing and focusing on this important burden. Part III answers the questions left open by the Burwell majority, suggesting a framework for considering which corporations should be able to bring religious liberty rights, aimed at protecting the free exercise of individuals’ religions from the burden of being unable to equally enjoy the benefits of the corporate form without having to violate their religious beliefs.

Keywords: Hobby Lobby, Conestoga, free exercise, religion, first amendment