Corporate Personhood and the Putative First Amendment Right to Discriminate

Forthcoming in the Research Handbook on Corporate Purpose and Personhood (Elizabeth Pollman & Robert B. Thompson, eds.,Edward Elgar Publishing)

Boston College Law School Legal Studies Research Paper No. 560

24 Pages Posted: 30 Apr 2021

Date Written: April 29, 2021

Abstract

Corporations increasingly assert the right to discriminate, based either on free speech claims, religious freedom claims, or statutory claims arising from the Religious Freedom Restoration Act. Such claims have been considered by the Supreme Court in Hobby Lobby (RFRA) and Masterpiece Cakeshop (First Amendment), and in both cases the Court held in favor of the business.

In neither case, however, did the Court address a fundamental flaw with the arguments of the company asserting the speech and religion claims: that the claims depend on the rejection of corporate personhood. The putative religious and speech claims arose not from the beliefs of the companies but of their dominant shareholders. But corporate “personhood” means the interests of the firm are distinct from those of the shareholders. Allowing companies to assert the beliefs of shareholders as their own contradicts established doctrine and risks corporate manipulation of regulations designed to be generally applicable.

The authors have been active as amici in various cases in which corporations have asserted right to discriminate. This chapter marks the first time that these arguments have appeared in a scholarly format.

Suggested Citation

Greenfield, Kent and Rubens, Daniel, Corporate Personhood and the Putative First Amendment Right to Discriminate (April 29, 2021). Forthcoming in the Research Handbook on Corporate Purpose and Personhood (Elizabeth Pollman & Robert B. Thompson, eds.,Edward Elgar Publishing), Boston College Law School Legal Studies Research Paper No. 560, Available at SSRN: https://ssrn.com/abstract=3836962

Kent Greenfield (Contact Author)

Boston College Law School ( email )

885 Centre Street
Newton, MA 02459-1163
United States
617-552-3167 (Phone)
617-552-4098 (Fax)

Daniel Rubens

Partner ( email )

United States

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