Do for-profit businesses possess religious exercise protections? Mark Rienzi, of the Becket Fund for Religious Liberty and Catholic University of America, thinks they do and offers a detailed case for why in his new article, God and the Profits: Is There Religious Liberty for Money-Makers?

Rienzi surveys the diverse religious views on the interrelationship of piety and profit, noting that “many religions impose, and at least some businesses follow, religious requirements for the conduct of profit-making businesses.” While that alone does not translate into legal protection for for-profit religious exercise, it is sufficient to show that businesses following religious dictates in their practices are “exercising” religion by any logical definition.

The law already protects non-profit religious exercise in the non-profit corporate context, Rienzi argues, so relying upon whether religious protections, like speech protections in Citizens United, apply to corporate persons in general misses the mark.

On this point, as Rienzi’s legal survey shows, no such distinction between profit and non-profit corporate persons exists within constitutional questions—and, what’s more, courts have routinely rejected arguments to apply them in that context. Neither, Rienzi argues, does such a distinction exist within the Religious Freedom Restoration Act—the statutory protection for religious exercise at issue in the mandate litigation. Here, he cites to the law’s legislative history revealing a desire to have the Act’s word “person” protect “a single, uniform standard for religious freedom claims across all contexts.” Further, in an apropo analogy, Rienzi looks to for-profit companies like Whole Foods that clearly take moral views on economic philosophy or the environment, and explains the illogic of allowing corporations to take such views while maintaining that a company could not take a similar, religious-based position.

Given this disparity, Rienzi concludes “that denying religious liberty rights for profit-makers would actually require singling out religion for disfavored treatment in ways forbidden by the Free Exercise Clause and federal law.” Such a view of law would permit for-profit corporations to have the moral culpability of criminal convictions, take moral views on a slew of ethical concerns, and let corporations exercise other constitutional guarantees as persons while inexplicably siphoning off only for-profit corporations from religious protection.  Rather than give for-profit corporations the same religious protections as non-profit corporations, or other persons guaranteed constitutional protection, it would single for-profit companies out to deny them religious exercise. This, as Rienzi notes, turns religious liberty law on its head.

This article, the first to give comprehensive treatment to this question of increasing prominence within the federal courts, can be found here.

Former U.S. Attorney General Edwin Meese announced that he’s “semi-retiring” from his leadership of the Heritage Foundation’s Center for Legal and Judicial Studies.  His legacy, both at Heritage and at the Justice Department, cannot be overstated, as I wrote in the Federalist Society’s “Engage” publication last year.The piece, featuring interviews with Justice Samuel Alito, the Honorable T. Kenneth Cribb, and Mr. Meese himself concludes that the “Meese strategy” of rigorous judicial nominee selection, developing a network of supporters motivated by political principles rather than political priorities, and explaining the substantive stakes of constitutional fidelity to the public continues to be a successful path for originalist advancement.

The article is featured on the Federalist Society’s website here.  I hope you find it enlightening about the impact this great and good man continues to have on American law and policy.

Georgetown Law Professor Michael Seidman says in the New York Times that we should conclude, “the American system of government is broken” not because of political divisions, but because of the Constitution “with all its archaic, idiosyncratic and downright evil provisions.” Accordingly, he thinks America should abandon the Constitution.

Seidman first looks to our nation’s “fiscal cliff” debate as an example of the Constitution’s failure—blaming its requirement that all revenue-raising bills originate in the House and not the Senate for the lack of a deal (the “Origination Clause”). As he says, “Why should anyone care? Why should a lame-duck House, 27 members of which were defeated for re-election, have a stranglehold on our economy? Why does a grotesquely malapportioned Senate get to decide the nation’s fate?”

Rather than deal counterarguments,Seidman breezes past his rhetorical questions. Doing so allows him to conveniently ignore the very democratic nature of the Origination Clause—that only those representatives who are closest to the People both in terms of proportional representation and in frequency of election can initiate a new tax on them. Had Seidman considered this tacit victory for self-government, he might have endorsed the Clause’s wisdom because it prevents exactly what he contemporaneously criticizes: “a grotesquely malapportioned Senate” getting “ to decide the nation’s fate.” Seidman might also have wrestled with the reality that the Supreme Court already pared back the Origination Clause’s relevance with no corresponding increase in governmental efficiency, as in Flint v. Stone Tracy Co. where the Court affirmed the Senate adding a tax increase to a House bill, or in Rainey v. United States where the Court affirmed the Senate adding a tariff to a House bill.

Perhaps the professor’s most bombastic criticism comes here:

Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago.

This is untrue. As Yuval Levin astutely pointed out, quite a lot gets done in Washington—and almost all of it is done without any regard for the any Founder’s desires or the Constitution’s manifested restraints. The past decade alone has seen an overhaul of Medicare, an overhaul of the federal government’s role in education, the creation of a new federal department (Homeland Security), the Patriot Act, financial accounting reform (Sarbanes Oxley), a bailout of America’s major financial institutions, a bailout of the American auto industry, an overhaul of banking regulations (Dodd Frank), a massive federal stimulus program, and of course, an overhaul of the American health care system—which also included the nationalizing of the student loan industry. It would be a very narrow definition of a functional political system that didn’t consider these legislative achievements “doing something,” regardless of their respective merits. (more…)

Ms. Anna Williams quotes some interesting observations from noted scholars in her recent post on “The Common Law and the Constitution.” Yet an important counter-point from Justice Scalia’s 1998 essay A Matter of Interpretation highlights what happened in between the common law’s heyday and today that might provide some reluctance to rely on “common law judging”:  the creation of American democracy.

To make the point clear, as Justice Scalia did years ago, it’s important to appreciate the distinction between the judging of “common law judges” and the judging required by the Constitution.

In a common law system, the judge’s task is to “discover” the law–meaning that he develops rules from certain principles and precedents, extrapolating the factual circumstances of a given case into broader notions of sound public policy (“the law”). From this view of proper adjudication, it’s perfectly appropriate to rely on what Professor Stoner suggests, “natural law or the law of reason,” in order to “discover” the right result. Professor McGinnis’s quoted observation sums up the common law quest succinctly: to “discover good social norms.”

Our Constitution, however, does not task our judges with “discovering” the law or crafting the right result in accordance with “natural law or the law of reason.” Unlike the English common law system from which America derived, the U.S. Constitution confines the power to make (or “discover,” if you will) law, and the power to interpret it to the legislative and judicial branches, respectively. This separation is intentional. In Federalist #47, James Madison emphasized the centrality of separating legislative and judicial power in preserving self-rule when he quoted Montesquieu as saying: “Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator.” (more…)