Bench Memos

The Religious-Liberty Rights of Business Owners

As I’ve stated before, the proposition that the religious-liberty rights of the owners of a business turn on whether or not their business is incorporated strikes me as absurd:

Consider this hypothetical: A Jewish family operates a deli and incorporates its business. Implementing its religious beliefs, the family keeps the deli closed on the Jewish Sabbath. But the federal government enacts a law that requires that all food-service businesses engaged in interstate commerce be open seven days a week.

Can anyone take seriously [the Obama administration’s] position that the deli owners don’t even have a cognizable claim against the law under the Religious Freedom Restoration Act because they have incorporated their business?

I’m inclined to believe that the courts can get this right without reaching the question whether a for-profit business itself has religious-liberty rights. Specifically, the courts ought to recognize that the owners and officers of a corporation have their own religious-liberty rights in how they operate the business. Alternatively, they could recognize, as the Ninth Circuit has done, that the corporation has standing to assert the religious-liberty rights of its owners.

That said, I’d like to highlight an excellent post by law professor Kevin C. Walsh taking issue with a Third Circuit ruling last week in which the majority of the divided panel ruled (among other things) that a “secular, for-profit corporation” has no rights under the federal Religious Freedom Restoration Act. As Walsh explains in detail, “There is no legal basis for a judicial carve-out of ‘secular, for profit corporations’ from RFRA’s protections.”

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