Monday, August 12, 2013
Rienzi on religious freedom and business corporations
Mark Rienzi has a good column in USA Today regarding the business-corporations-and-religious-freedom issue. As I wrote a few days ago (here):
[I]t does not seem to me that the question presented in a case like Hobby Lobby (or like Notre Dame's own case) is not "does a corporation have free-exercise rights?" The better way to think about it, I think, is to look at the relevant state action, and to ask, "is the government acting in a way that burdens religious exercise or violates the no-establishment norm." The First Amendment, after all, is not (only) a collection of claims or entitlements that individuals and entities have (or don't have). It's a command to the government: Don't violate "the freedom of speech"; don't burden the "exercise of religion."
It is obvious that some regulations of corporations violate "the freedom of speech." And, we can evaluate (and invalidate) such regulations without asking whether corporations have souls, or consciences, or beliefs, or selves-in-need-of-actualization. It seems equally obvious that some regulations of corporations -- including for-profit corproations -- can burden religious exercise (e.g., "no business corporation may sell Kosher meat") and so can (but might not) violate RFRA or the First Amendment. . . .
https://mirrorofjustice.blogs.com/mirrorofjustice/2013/08/rienzi-on-religious-freedom-and-business-corporations.html
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Thanks for the link. The USA Today op-ed on the opposite side has some serious problems in its statement of the law. It is written as if RFRA does not exist (which is different, of course, from arguing that RFRA does not apply to some subset of corporations). And it reflects a misunderstanding of Supreme Court precedent. Consider the following paragraph:
"Over the years, plaintiffs have demanded religious exemptions from laws on racial equality, the military draft, paying taxes, child neglect, drug use, animal cruelty and more. The Supreme Court has repeatedly said no, drawing a line between laws that explicitly target or place a substantial burden on a religion and those that impose broad, secular requirements on society that people might find religiously objectionable."
The errors in this paragraph should be obvious to anyone familiar with Smith, Lukumi, and O Centro, among other cases. I elaborate a bit in a blog post for anyone who might be interested.