Disaggregating Corpus Christi: Illiberal Implications of Hobby Lobby's Right to Free Exercise
51 Pages Posted: 27 Sep 2021 Last revised: 31 Jan 2022
Date Written: March 1, 2016
Many practice their religion within the context of structured, hierarchical organizations. Yet legal discourse on religious freedom too often fails to open the black box of the church with an eye towards justice. They talk of freedom for the church, but not of freedom within the church. They do so notwithstanding the notorious and horrifying scandals of contemporary religious history. The crimes of statutory rape, pedophilia, and child abuse, committed by religious leaders, shock to the very core. But jurisprudence is nevertheless loathe to subject internal church decision-making to public scrutiny. This should come as no surprise. The U.S. has a long history of support for religious liberty; the U.S. Supreme Court has a “special solicitude to the rights of religious organizations.” And so government meddling with that liberty is, to say the least, taken by many to be inherently suspect.
Freedom within the business corporation, in stark contrast, is a popular and well-established subject of discourse with the legal academy. Scholars seem perfectly willing to analyze the justices and injustices involved in internal business organizations. For “it is now widely accepted that the precious freedoms upon which government could not intrude are of little or no utility to those, who by the necessity to eat and find shelter, are forced to spend their lives in ceaseless, bone-grinding, dangerous, and life-shortening toil.” Accordingly, many accept that business does not have free reign to deal with its employees, shareholders and customers as it may. Rules of fair bargaining, minimum wage laws, and the like constrain the liberty of corporate bosses in the interest of the liberty of workers. Similarly, thousands of pages – both of judicial opinion and scholarly excursus – inspect and critique the treatment of stockholders by company directors and executives.
Yet curiously, except upon manifestations of the gross abuses, rarely does scholarship inquire as to the status of the individual rights of church members against abuses perpetrated by religious “bosses.” Rather, it focuses on the rights of the group as a whole when they meet with obstacles presented by outsiders, whether those outsiders be private persons, other groups, or the state itself. The recent Hobby Lobby litigation, however, presents a unique opportunity to examine how the rights of individual members fare in the context of group religious exercise. If only because the background noise of balance sheets, quarterly earnings, and financialized fiduciary duties leaves room for the kind of dispassionate analysis unavailable in other circumstances.
This paper will, therefore, begin to assess the insides of group religious practice by taking a peek behind the veil of the business corporation. In Part I, I argue that how the law defines a corporation will shape the kinds religious rights and freedoms that such groups can assert on their own behalf. The application of each ontological understanding of the corporation bears fruitful insights about the kinds of legitimate claims to religious freedom the corporation may claim, regardless of whether it is registered, unregistered, closely held, for-profit, non-profit, or otherwise. But, as useful as these legal conceptions of corporate personhood are in defining group rights as against outsiders, they provide less helpful guidance when it comes to resolving conflicts between the rights of the group and those of their own members. Indeed, each conceptualization tends to gloss over, ignore, or deny the existence of hierarchical, non-consensual relationships that may do damage to individual rights that happen to fall within the corporation’s sphere of influence. Whether one understands the corporation as a nexus of individual contracts, a state concession, or a real entity, internal imbalances of power threaten the freedoms valued by liberal democratic polities.
Though legal theory may not provide the satisfying answers we seek, another intellectual tradition may be of some use. Namely, the study of power and its justification is the particular provenance of political theory. Therefore, I enlist political theory in Part II to argue that legal scholars should not look to a personhood discourse to resolve the conflicts and dilemmas within the black box that is religion, incorporated. Rather, they should look instead to the conceptions of toleration and voluntariness that lie at the very core of liberal religious freedom. Thus, inasmuch as the Supreme Court relied on the personhood discourse in its Hobby Lobby decision, it veered a bit off the track.
Had it applied instead the ideas of voluntariness and toleration, it might have inhibited the potential for the harmful exercise of corporate religious rights. And it might have done so while also satisfactorily respecting individual liberties and legitimate group claims to religious freedom. Just such an application is provided in Part III.
Keywords: Free Exercise, corporate rights, corporate governance, constitutional law, first amendment
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