March 26, 2014
Four Questions to Ponder
Posted by Jayne Barnard

Well, the punditocracy has concluded (and I agree) that a majority of the Court is likely to find that a for-profit corporation may be considered a "person exercising religion" under RFRA.  If that is so, and putting aside all the other elements of the RFRA analysis, it seems to me a few questions are still in the air.

First, Chief Justice Roberts indicates that he is inclined to limit his ruling to "a Chapter S corporation [sic] that is closely-held."   Is there some principled basis for concluding that an S corporation is a person capable of exercising religion while a C corporation is not? And, putting aside the tax code, upon what basis will the Court decide which corporations are protected by RFRA and which are not?  Shouldn't the Court offer some kind of guidance on this issue?  Is it enough to say, as Chief Justice Roberts does, that any corporation in which 51% of the shareholders agree to some sort of religious belief may be a "person exercising religion" under RFRA?  Won't that lead to all kinds of mischief?  Should the Court care?

Second, Justice Alito expressed concern about the plight of Kosher and halal slaughterhouses which might find themselves facing regulation requiring humane slaughter.  Shouldn't these businesses, even if incorporated, be able to assert religious claims under RFRA?  Few would say no.  But, is there a difference between businesses like these where religion is at the core of what they do, and other businesses where religion has little if anything to do with the company's products and services?  Must the Court rule that any corporation with 51% religious owners can claim that it is engaged in religious exercise?   Won't that lead to even more mischief?  Should the Court care?

Third, assuming RFRA standing, is it not fair to predict, as Justice Kagan suggested, that corporations will now feel free to assert religious objections to employment discrimination laws, minimum wage laws, the Family and Medical Leave Act, child labor laws and more?  Is there a principled basis upon which the Court might limit its holding to religious objections to health care mandates?  Or will the floodgates open?   Should the Court care?

Finally, (irony alert) Paul Clement argued that the "least restrictive means" of implementing the contraceptive mandate would be for the government to pay for employees' contraceptive care.   Where was Clement when advocates for a single-payer health care system could have used his help?

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