Bench Memos

EPPC Amicus Brief on Government’s Parade of Horribles

This is my third (and, I think, last) post highlighting key arguments in the amicus brief that my think tank, the Ethics and Public Policy Center, filed yesterday in the HHS mandate cases in the Supreme Court. As I’ve said, I believe that EPPC’s brief (for which I take no credit but which is instead the outstanding work of Daniel P. Collins and Enrique Schaerer of the law firm of Munger, Tolles & Olson) demolishes the Obama administration’s claim that for-profit corporations are inherently incapable of an “exercise of religion” for purposes of the protections afforded by the federal Religious Freedom Restoration Act and the Free Exercise Clause.

My first two posts presented the brief’s arguments about the meaning of the concept of exercise of religion in the Free Exercise Clause and in RFRA. Here, I’ll provide excerpts from the brief’s discussion (pp. 29-33) of the Obama administration’s imaginary parade of horribles. The remainder of this post consists of excerpts from the brief (with various citations omitted and some paragraph breaks added):

[T]he Govern­ment vastly overstates the implications of extending RFRA’s protections to corporate entities.…  RFRA would only apply to a corpora­tion that could demonstrate (1) a corporate adherence (2) to a religious belief (3) that is sincerely held.  Each of these legal requirements operates as a significant practical constraint on a corporation’s ability to assert a free exercise claim. 

First, absent some indicia that the corporation it­self adheres to certain religious principles, it cannot be said that the corporation (as opposed merely to in­dividuals within it) has a religious belief, much less one that is sincerely and consistently held.  Obvi­ously, incorporation as a religious corporation under state law would be sufficient (as the Government con­cedes), but so too would be (for example) a formal statement of belief adopted on behalf of the corpora­tion itself by those persons with the power to control the corporation.  But the Government is wrong to the extent that it suggests that any religious employee (however low-level) who merely seeks to invoke reli­gion in the course of performing his or her duties would cause the corporation to subscribe to that reli­gion.… 

Second, because “[o]nly beliefs rooted in religion are protected by the Free Exercise Clause,” a corporation’s commitment to principles that are “based on purely secular considerations” is insufficient to invoke the protection of the Clause.

Third, this Court has long held that a free exercise claim requires a showing of action or inaction “based on a sincerely held religious belief.”  Just as an individual’s belief that is hap­haz­ardly in­voked only when convenient is unlikely to be found to be sincere, so too for a corporation.  Thus, one consequence of the sincerity requirement is that, un­less those with ultimate authority over the corpo­ration have taken steps to attempt to ensure that the corporation will generally act in conformity with the corporation’s stated religious principles, it is unlikely that the corporation’s religious belief would be found to be sincerely held.

Few, if any, publicly traded corporations have un­dertaken, or likely ever would undertake, to ascribe to a sincerely held religious belief in the conduct of their operations, much less endeavor to achieve company-wide conformity of the corporation’s actions to those beliefs. And although the Government raises the specter that all of the very largest privately held companies will suddenly get religion, it is hardly surprising that the Government did not identify any large closely-held corporation other than Hobby Lobby (which is only #276 on the Forbes list of “private” companies that the Government cites) that had asserted a claim to exercise religion.… 

Moreover, it bears repeating that recognizing a cor­poration’s exercise of religion under RFRA or the Free Exercise Clause does not mean that the corpora­tion’s free exercise rights will always prevail under the applicable standard.  To be sure, the application of the HHS mandate here does violate the RFRA and Free Exercise Clause rights of these corporate Plain­tiffs. But if the Government is correct in its dire predictions as to the harmful con­sequences that will supposedly follow from upholding religiously-based corporate exemptions from various other statutes not at issue here, then presumably it will be able to defeat such claims by demonstrating that those statutes serve compelling interests and employ the least restrictive means. 

Indeed, if there is any reading of RFRA and the Free Exercise Clause that raises disturbing implica­tions, it is the Government’s.  According to the Gov­ernment, it can make any market for goods or ser­vices a Free-Exercise-Free Zone simply by the artifice of placing whatever obligations it wants on corporate entities rather than on natural persons. 

In the Gov­ernment’s view of the matter, an incorporated kosher deli could be forced to carry non-kosher goods; an in­dependent Catholic hospital with a lay board could be required to provide abortions; a closely-held market owned by Seventh-day Adventists could be required to open on Saturdays; and an incorporated retail store owned by Muslims could be forced to carry liquor. 

As Judge Jordan recognized in dissent below in the Conestoga case, there is a word to describe the Government’s position:  “Remarkable.” 

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