I’ve already highlighted the compelling argument in the Ethics and Public Policy Center’s amicus brief that the protections of the Free Exercise Clause apply to a for-profit corporation’s exercise of religion. EPPC’s brief also dismantles the Obama administration’s bizarre argument that the courts may look only to case law that precedes the Court’s 1990 decision in Employment Division v. Smith to determine what Congress meant by the term “exercise of religion” in the federal Religious Freedom Restoration Act.
EPPC’s brief offers three basic responses to this argument:
First (pp. 6-13): Whereas the original definition of “exercise of religion” in RFRA expressly incorporated the meaning of the same term in the Free Exercise Clause, Congress in 2000 amended that definition to decouple it from the Free Exercise Clause in order to give it a potentially broader meaning. Responding to lower-court rulings that had (wrongly) held that the Free Exercise Clause requires a showing of interference with a belief that is “central” to and “mandated” by religious belief, Congress redefined “exercise of religion” in RFRA to mean “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” Further, it set forth a rule of construction “in favor of a broad protection of religious exercise, to the maximum extent permitted.”
What’s more, the legislative history of the 2000 enactment confirms both the intended breadth of the new definition and RFRA’s applicability to for-profit corporations. As EPPC’s brief spells out (some citations omitted):
In its Report …, the House Judiciary Committee noted that the bill broadened RFRA by clarifying that the “burdened religious activity need not be compulsory or central to a religious belief system as a condition” for a claim under either Act. The Committee then made the following observation in a footnote attached to that comment:
“One issue raised during the Subcommittee Markup was whether a business corporation could make a claim under H.R. 1691. The requirement of H.R. 1691 that the claimant demonstrate a substantial burden on religious exercise is equally applicable whether a claimant is a natural person or a corporation. Most corporations are not engaged in the exercise of religion, but religious believers, such as people in the Kosher slaughter business, should not be precluded from bringing a claim under H.R. 1691 simply because they incorporated their activities pursuant to existing law.”
(Emphasis added.) The Government is thus simply wrong when it says that “‘nowhere’ in RFRA’s legislative history ‘is there any suggestion that Congress foresaw, let alone intended that, RFRA would cover for-profit corporations.’” The legislative history shows that, in amending RFRA’s definition of “exercise of religion,” Congress foresaw and intended what the text plainly indicates—that RFRA applies to an exercise of religion by a for-profit corporation.
(I’ve set forth here a simplified, but accurate, account that avoids getting into the intricacies of the interplay between RFRA and the Religious Land Use and Institutionalized Persons Act of 2000, or RLUIPA. The reader interested in the intricacies should read pages 7-13 of EPPC’s brief.)
Second (pp. 14-16): Neither in its original version or in its amended version was RFRA’s definition of “exercise of religion” to be “artificially truncated as embracing only those specific results that had been recognized in [the Supreme] Court’s pre-1990 case law.
Third (16-20): Even if it were necessary to identify a basis in this Court’s pre-1990 case law for concluding that a for-profit corporation can engage in the exercise of religion, the Court’s 1961 decision in Gallagher v. Crown Kosher Super Market of Massachusetts, Inc. would supply that basis, as a majority of the justices concluded that the corporate plaintiff, a for-profit kosher supermarket that was challenging a law requiring it to close on Sundays, had asserted a cognizable burden on free-exercise rights.