Balkinization  

Thursday, February 20, 2014

Can Corporations Exercise Religion?: A Response to Douglas Laycock

David Gans


Over at Scotusblog, Professor Douglas Laycock urges the Supreme Court to hold that Hobby Lobby, Inc. and other secular, for-profit corporations exercise religion, arguing that “Congress left a clear and explicit record that . . . [the Religious Freedom Restoration Act] covers for-profit corporations and their owners.”  Laycock is an immensely respected scholar of the First Amendment, who has written a long list of major articles on the Religion Clauses and argued a number of landmark Supreme Court cases, and his views are entitled to very serious consideration.  But his argument in favor of the proposition that Congress intended to give secular, for-profit corporations the right to the free exercise of religion for the first time in history – as part of a bill designed to restore free exercise protections taken away by the Supreme Court in Employment Division v. Smith  – is unconvincing.  Indeed, Professor Laycock’s arguments supporting Hobby Lobby cannot be squared with Professor Laycock’s own prior scholarship on the meaning of RFRA.

The crux of Laycock’s argument is that RFRA was designed to provide “universal coverage under a single standard,” with no exceptions.   Laycock admits, however, that he has no evidence of a congressional intent to protect free exercise rights for secular businesses: “Congress did not at that time discuss any actual religious-liberty controversies involving for-profit businesses.”  Nevertheless, he asserts, based on what he calls the “no-exceptions principle,” that “Congress answered the question” whether corporations like Hobby Lobby can invoke RFRA’s protections to obtain a religious exemption from neutral, generally-applicable business regulations.    This begs the question of whether secular, for-profit corporations – which lack the human capacities at the core of the free exercise right – can exercise religion in any meaningful sense.    
    
Exhibit A against Laycock’s claim comes from Professor Laycock himself.  In a 1994 law review article, Interpreting the Religious Freedom Restoration Act, written shortly after the passage of Act, Professor Laycock (along with co-author Professor Oliver Thomas), analyzed RFRA’s text, context, and history, concluding that, under the statute, “‘[e]xercise of religion’ thus has two main components: the religiously motivated conduct of individuals and the operations of religious organizations.”  Conspicuously absent from Laycock’s 36-page article was any argument that secular, for-profit corporations were covered by RFRA’s protections for the free exercise of religion.  As described in Laycock’s article, any “corporate element” to the free exercise of religion involved claims by religious entities, not business corporations.  In sum, Professor Laycock recognized what has long been black letter law – that the Free Exercise Clause protects individuals and has special solicitude for the rights of religious organizations, extending protections to churches and other religious corporations that have never been granted to or claimed by secular, for-profit corporations.   Professor Laycock, without explanation, is now walking away from his own comprehensive analysis of RFRA.      

The only concrete evidence Professor Laycock offers now to support his argument that secular, for-profit corporations should be entitled to claim religious exemptions under RFRA comes from the legislative history – not of RFRA – but of the proposed Religious Liberty Protection Act, a failed 1999 effort to add protections to the free exercise of religion after the Supreme Court partially invalidated RFRA.  This is legislative history of the worst kind.  “Post-enactment legislative history,” the Supreme Court has made clear, is a “contradiction in terms,” not a “legitimate tool of statutory interpretation.”   This is particularly so here, since the bill in question failed to pass Congress.  The later actions of one House of Congress discussed by Professor Laycock are simply not probative of the meaning of RFRA.   

Indeed, in 2000 – when Congress actually enacted new religious freedom legislation, the Religious Land Use and Institutionalized Persons Act – it provided protections to “religious exercise of a person, including a religious assembly or institution.”  Nothing in RLUIPA suggests that secular, for-profit corporations exercise religion.  Surely this text, actually enacted by Congress, counts for far more than debates over a bill that failed to pass.    

Professor Laycock derides as a “shell game” the government’s argument that secular, for-profit corporations and their corporate owners are not entitled to invoke RFRA to claim a religious exemption from neutral, generally-applicable business regulations.  But Professor Laycock ignores the basic fact that business corporations and their owners have always been treated differently from individuals when it comes to fundamental rights, such as the free exercise right, that protect freedom of conscience and human dignity.  Surely if Congress were doing something so revolutionary as recognizing for the very first time in our nation’s history that secular, for-profit corporations can exercise religion, the legislative history would have been crystal clear.  But speculation and bits of post-hoc legislative history are all that Professor Laycock offers.  For all his labors, Professor Laycock has failed to point to any convincing evidence in the RFRA legislative record that Congress intended to grant free exercise rights to secular businesses.      

David H. Gans is the Director of the Human Rights, Civil Rights & Citizenship Program at the Constitutional Accountability Center, the author of Can Corporations Pray?, and a co-author of CAC's brief in Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius.  This post is cross-posted at Text and History.  



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