Schrodinger's Corporation: The Paradox of Religious Sincerity in Heterogeneous Corporations

59 Pages Posted: 31 Aug 2018 Last revised: 13 Dec 2019

Date Written: March 11, 2019

Abstract

Consider a corporation where one group of shareholders holds sincere religious beliefs and another group of shareholders does not share those beliefs but, for a price, will allow the religious shareholders to request a religious exemption to a neutrally applicable law on behalf of the corporation. The corporation is potentially both religiously sincere and insincere at the same time. A claim by the corporation for a religious accommodation requires the court to solve the paradox created by this duality and declare the corporation, as a whole, either sincere or insincere in its beliefs. While the Supreme Court and scholars have noted some of the particular issues raised when determining the religious sincerity of shareholders’ claims, to date no one has engaged systematically with the question of whose religious sincerity should be attributed to the corporation when shareholders hold heterogeneous, or diverse, religious beliefs.

This Article provides a framework for determining the sincerity of corporations with religiously heterogeneous shareholders. I propose an attribution inquiry that engages in a meaningful dialog between state corporate law and theories of religious sincerity. What little attention attribution has received tends to suggest that state law regarding corporate control provides an easy corollary. It does not. Corporate law is designed to enable contracting in pursuit of economic efficiency. Allowing control to stand in for attribution would lead to the monetization of religious sincerity, harming third parties and diminishing the value of religious liberty both in the courts and the public eye. This Article considers alternative ways in which principles of state corporate law can shape the attribution inquiry to better delimit exemptions while still protecting the value of religious liberty. Ultimately it concludes that meaningful restrictions should be placed on the ability of shareholders with heterogeneous religious beliefs to contract among themselves for corporate religious sincerity.

Keywords: corporate law, private ordering, free exercise, corporate religion, corporate speech, Hobby Lobby, Citizens United, Masterpiece Cakeshop

JEL Classification: K2, K22, K12

Suggested Citation

Hardee, Catherine, Schrodinger's Corporation: The Paradox of Religious Sincerity in Heterogeneous Corporations (March 11, 2019). California Western School of Law Research Paper No. 18-13, Available at SSRN: https://ssrn.com/abstract=3237110 or http://dx.doi.org/10.2139/ssrn.3237110

Catherine Hardee (Contact Author)

California Western School of Law ( email )

225 Cedar Street
San Diego, CA 92101
United States

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