I briefly highllight a few pertinent corporate law-specific points that were made during yesterday's argument. Much of the proceeding, of course, was focused on burdens and compelling interest and alternatives, including the posing of many hypotheticals. And I too was as struck as Rick at the large number of interruptions. I resolve to be a more polite listener.
The Solicitor General conceded, in response to a question by Justice Alito, that the corporate form per se was not inconsistent with a free exercise claim; instead, it was the pursuit of for profit activity. It strikes me that this move, designed to preserve the current government stance against these two closely held corporations, potentially would permit a future attack by the government against an individual's free exercise claim. At a time when the government would seemingly want to cabin off the for profit corporate sector as unable to make a free exercise claim, that seemed an odd move.
In a classic half empty/half full exchange with Justice Scalia, the SG conceded that there was not a single case holding that a for profit corporation does not have a free exercise claim.
Again, in an exchange with Justice Scalia, the SG ruminated over the position of a minority shareholder in a close corporation who disagrees with the controlling shareholders about policy. Scalia curtly replied that those in control of the company make the decisions. To the SG's suggestion that that might be oppression, CJ Roberts replied that that was a state corporate law question. Three cheers for some answers our 2L law students could have made about corporate governance. Maybe we corporate types don't know con law but we have our own arguments they could brush up on, a point I made in my opening post on Monday.
Finally, even late in the SG's argument, Justice Breyer pressed him yet again on why corporate form should matter to a free exercise claim. The SG moved to the employees' interests and how they needed to be considered.
Who can predict such things, but my impression is as stated Monday: this case will, however narrowly, conclude that these two companies have a free exercise claim. Whatever the outcome of the case(given the other steps in the RFRA analysis), that initial ruling will, as I will post tomorrow, have intriguing consequences for corporate law, not just con law.
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