Bench Memos

EPPC Amicus Brief: The Free Exercise Clause and For-Profit Corporations

As promised, I’m going to highlight some key arguments from EPPC’s amicus brief in the pending HHS mandate cases. Let me start with the brief’s argument (pp. 20-29) that the protections of the Free Exercise Clause (and, a fortiori, of the federal Religious Freedom Restoration Act) apply to a for-profit corporation’s exercise of religion. The remainder of this post consists of excerpts from the brief (with various citations omitted and a few paragraph breaks added in for ease of online reading):

In addressing the question of whether corporations may exercise religion within the meaning of the Free Exercise Clause, the proper analysis, and the one in­dicated by the text of the clause, is the same one that the Court took in First National Bank of Boston v. Bellotti (1978) with respect to the Free Speech Clause.  Like the Free Speech Clause, the Free Exercise Clause protects an activity without specifying or limiting whose activity is protected. 

Accordingly, the appropriate inquiry is (1) to identify the behavior that is embraced within the scope of the clause’s language, (2) to determine whether corpora­tions are capable of performing that behavior, and (3) to examine whether there is any reason why the performance of that behavior by a corporation should remove those instances of such behavior from the scope of the clause.  That analysis confirms that the Free Exercise Clause protects the exercise of religion by a for-profit corporation.…

[T]he irreducible elements of the conduct that qualifies as the “free exercise” of religion under the First Amendment are (1) action or abstention from action (2) motivated by (3) adherence to a reli­gious belief.… 

The Government … disputes only the third el­ement, arguing that for-profit corporations are incapable of having religious beliefs.  This is so, the Government contends, because in light of the distinction between a corporation and its owners, there is “no basis on which to impute the individual-respondents’ religious beliefs to the corporate-respondents.”  This contention fails.

As an initial matter, it is difficult to fathom how the Government’s argument could support its prof­fered distinction between “religious non-profit insti­tutions” (which it concedes have free exercise rights, despite their corporate form) and “for-profit corporations” (which it claims lack such rights, because of their corporate form).  If the problem is that the religious views of the founders and owners of a corporation cannot be imputed to a corporation, then that point would equally apply to religious non-profits.  But as the Government con­cedes, this Court has repeatedly and ex­plicitly recognized the free exercise rights of corpo­rate plaintiffs who happened to be religious non-profits.  

Moreover, the Government’s concession that some corporations exercise religion within the meaning of the Free Exercise Clause confirms that there is nothing intrinsic to the corporate form that precludes for-profit corporations from exercising religion.  Yet under the Government’s view, while a religious non-profit would be engaged in the corporate exercise of religion by running a religious bookstore propagating its views, there would be no corporate exercise of religion if that very same bookstore instead were owned by a closely-held for-profit corporation whose devout owners had committed the corporation to the same mission.  It makes no sense to say that the first cor­poration would have RFRA and free exercise rights, but that the second corporation—even though it is engaged in the same activities—would not….

[I]t does no violence to the dis­tinction between a corporation and its owners, direc­tors, or officers to recognize that those who under the applicable state law have the power to control the corporation’s activities can take affirmative steps to commit the corporation to a particular idea (such as a clean environment, support for particular legislation, etc.).  See, e.g., Consolidated Edison Co. v. Public Serv. Comm’n (1980) (recog­nizing right of a corporation to express “opinions on critical public matters”).  The Government’s premise that corporations can ascribe to beliefs on all subjects other than religious ones makes no sense….

[T]his Court has already recognized, in cases involving indi­viduals, that activities that are commercial in nature (e.g., carpentry and farming (Lee); shopkeeping (Braunfeld)) may involve the exercise of religion if the person performing them undertakes to do so in con­formity with the strictures of a sincerely held reli­gious belief.  In particular, the Court’s recognition that the obviously profit-making activities at issue in Braunfeld involved the exercise of religion confirms that the profitable nature of an activity does not exclude it from the exercise of reli­gion.  The Government provides no coherent basis for concluding that conduct that is religious exercise when conducted by an individual is suddenly not reli­gious exercise when conducted by a corporation. 

The Government’s argument would mean, for example, that if an Orthodox Jewish family that runs a neigh­borhood kosher market (like the proprietors in Braunfeld) later chose to incorporate its business (so as to obtain the valuable protections of limited liabil­ity associated with the corporate form), it would lose its free-exercise right to challenge laws impinging on its ability to comply with the dictates of its faith.  It is absurd and deeply problematic to construe the Free Exercise Clause, as the Government urges, as having the effect of conditioning the availability of the corpo­rate form on the surrender of otherwise-available free exercise rights.

Indeed, the Government’s position here is directly analogous to the argument made in Bellotti—and re­jected by this Court—that free speech rights extend only to “media corporations and corporations other­wise in the business of communication or entertain­ment.”  The Court agreed that the press has a “special and constitutionally recognized role … in informing and educating the public, offering criti­cism, and providing a forum for discussion and de­bate,” but the Court held that “the press does not have a monopoly on either the First Amendment or the ability to enlighten.” 

So too here.  The fact that churches and other similar religious non-profits have a special and constitutionally recognized role in the exercise of religion, see, e.g., Hosanna-Tabor Evangelical Lutheran Church & School (2012) (right to free exercise includes a “special solicitude to the rights of religious organi­zations”), obviously does not mean that only such en­tities are capable of engaging in religious exercise.

Moreover, the Government’s assertion that trying “‘to make a profit’” is incompatible with “‘a religious values-based mission’” is itself ultimately an impermissible value judgment on a point of religious doctrine.  Cf. Psalm 90:17 (NRSV) (“Let the favor of the Lord our God be upon us, and prosper for us the work of our hands—O prosper the work of our hands!”)….

The Government notably does not rely on the dis­trict courts’ erroneous theory that, because corpora­tions cannot “pray, worship, [or] observe sacraments,” for-profit corporations are incapable of any exercise of religion.  The argument is a non sequitur.  The fact that a corporation cannot perform all actions that constitute the free exercise of religion does not provide a basis for denying protection to the free exercise in which they can and do engage.  Corporations likewise cannot be cast for the starring role in a movie or as the lead dancer in a ballet, but that does not mean that corpo­rations lack free speech rights for the speech and ex­pressive activities in which they do engage. 


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