Whose Right and Who's Right? The US Supreme Court v. The European Court of Human Rights on Corporate Exercise of Religion

Abstract

Hobby Lobby, a company that should be merely an individual’s DIY-dream, has become a lawyer’s conundrum. To be precise, this puzzle emerges from the United States Supreme Court (SCOTUS) holding in Burwell v. Hobby Lobby Stores (Hobby Lobby) that the contraceptive mandate in the Patient Protection and Affordable Care Act (ACA) violated the Religious Freedom Restoration Act of 1993 (RFRA) because it substantially burdens the religious beliefs of the three closely held corporations (CHCs) in the case. The Court thus placed Hobby Lobby Stores (Hobby Lobby), Mardel, and Conestoga Wood Specialty Corporation (Conestoga) at the intersection of two of the most thrilling social and legal debates of our times. Upon reading the Court’s decision, the lawyer — as well as the sensible hobby bricoleur — would wonder how far corporate “human” rights can and should go and whether such rights can and should be correlated to responsibilities. They would also consider a twisted variant of the separation of church and state question, and inquire to what extent the state should protect human rights from religious interference. The judgment has important implications for human rights, in particular by weakening the protection of reproductive and healthcare rights, and by posing possible threats to freedom from discrimination based on gender and sexual orientation. While the article engages with some of these consequences, its prime aim is to explore a more basic aspect: the type of entity which can hold and exercise religious views. It is this aspect which we identify as the source of potential socio-legal conflict in the United States. The analysis will compare SCOTUS’ reasoning on corporate form, profit-making objective, and limitations to religious exercise in Hobby Lobby to relevant jurisprudence of the European Convention on Human Rights (ECHR) mechanisms — the European Court of Human Rights (ECtHR) and the European Commission on Human Rights (EComHR). The comparative study therefore will allow us to provide answers to core questions: Whose right and who’s right? In other words, does a corporate right to exercise religion exist and is SCOTUS right in recognizing such protection for for-profit entities or is the ECtHR right in denying it.

Looking for inspiration outside the realm of US case law may prove a delicate endeavor, given the different structure of the ECtHR (as a supra-national court overseeing forty-seven sovereign states), and the reticence of certain circles in the US to recognize any comparative value to be gained from foreign judgments. Despite these caveats, the parallel between the two jurisdictions should provide a fuller account of how the interpretations on corporate religious freedom differ, and avenues for alternative interpretation.

In terms of structure, a first part of the article summarizes SCOTUS’ treatment in Hobby Lobby of for-profit corporations as ‘persons’ which can exercise freedom of religion under the RFRA, and identifies non-profit organizations with religious or philosophical objectives as exclusive corporate right-holders in the jurisprudence of the ECtHR. We proceed to discuss SCOTUS’ (mis)interpretation and neglect of the legal separation between shareholders and company and the standing requirement in US law, and draw on the insights gained from European practice to outline alternative ways. The second part of the article focuses on SCOTUS’ treatment of state limitations to corporate religious freedom in Hobby Lobby, and on the ECHR mechanisms’ practice of restricting manifestations of religion under the ECHR. The aim here is explore whether cross-fertilization presents potential to mitigate the shortcomings of the two jurisdictions in question. In the third part, the article will unearth some socio-legal consequences brought about by the findings in Hobby Lobby. At a general level, we argue that the exercise of religious freedom by for-profit corporations leads to social polarization, and specifically in relation to the contraceptive mandate in the ACA, we identify a number of societal groups which will disproportionally suffer from the judgment’s nocuous effects.

Keywords: Hobby Lobby, Religion, European Court of Human Rights, human rights, corporate power