Gendering Corporate Conscience
46 Pages Posted: 12 Nov 2014 Last revised: 22 Jan 2015
Date Written: December 9, 2014
In Burwell v. Hobby Lobby, the Supreme Court conducted a sudden and dramatic shift in religious liberty doctrine. For the first time, the Court endorsed religious liberty for for-profit, secular corporations and exempted them from regulation meant to protect employees. In the controversy over contraception, a new and potentially broad doctrine of corporate conscience was born.
This Essay argues, that even as women were effaced from the courts’ religious liberty analysis, women’s gender was central both to the substantive development of corporate conscience and to the pragmatic limits on its reach. Corporate conscience claims — and their subsequent judicial and scholarly acceptance — relied on denying the relevance of women’s gender. The courts disregarded women’s reproductive decisions and their earning of benefits. Any burdens on their rights became immaterial. Sex equality disappeared as a governmental interest. Yet, women’s gender simultaneously was central. It facilitated the surprising turn toward business exemptions from commercial regulation. It functioned as a potential limit on the reach of corporate conscience doctrine. The Supreme Court sought to assuage fears that corporate conscience might have expansionist effects (or ambitions) and, so doing, raised the specter of a doctrine that works to the detriment of the full and equal citizenship of women and sexual minorities.
Keywords: contraceptive mandate, women, gender, equality, RFRA, religious freedom, free exercise of religion, conscience
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