Cornerstone has published a short essay of mine on whether a corporation qualifies as a person for purposes of the Religious Freedom Restoration Act—a main issue in the Contraception Mandate case the Supreme Court will decide this month. Relying on a comment from Chief Justice John Roberts at oral argument, I suggest that the Court may draw a distinction, for RFRA purposes, between large, publicly-held corporations and small, privately-held corporations like Hobby Lobby itself:

In truth, there is something very odd in the notion that a large, publicly-traded corporation with thousands of institutional shareholders around the world—Exxon-Mobil, for example—has religious scruples that guide its conduct. (Most Exxon-Mobil shareholders, I think, would be deeply surprised.) Large, publicly-traded corporations exist principally to make profits for the shareholders, who remain passive with respect to the corporation’s day-to-day operations. Religion is the farthest thing from their minds.

Moreover, if such corporations could exercise a religion, chaos could result. How would we determine when a corporation has a belief, Justice Sotomayor asked? Which of the thousands of shareholders would be entitled to raise their religious scruples? Would the majority of shareholders—51%—decide the matter for everyone else? What about the minority shareholders who object?

On the other hand, it isn’t strange to think that some for-profit corporations might exercise religion. As law professors Alan Meese and Nathan Oman argue in a recent essay in the Harvard Law Review, most American corporations are small, private firms with a only a handful of shareholders. In such corporations, the shareholders take great interest in day-to-day operations and may run their businesses with religious convictions in mind.

You can read my essay here.

Articles by Mark Movsesian

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