March 29, 2014
Persons, Burdens, and Interests -- A Quick and Dirty Response to Jayne
Posted by Nate Oman

In her last post my colleague Jayne Barnard asks some great questions.  Let me take a stab at some answers.  Jayne writes:

[I]s 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?

Many of those opposed to Hobby Lobby's claim -- including the Obama Administration -- have argued that because Hobby Lobby is a for-profit corporation it cannot be a "person" for purposes of RFRA.  As a matter of statutory interpretation, I find this claim implausible.  I also think that it's a misguided way of dealing with the concerns that one might have about Hobby Lobby's claims.

At the end of the day, I suspect that opposition to Hobby Lobby is less nuanced than much of this debate suggests.  Those who are skeptical of their suit think that the ACA contraception mandate is really important, and that letting a bunch of religious zealots avoid their obligations under the ACA will hurt women and that would be really bad.  This argument has nothing to do with the definition of "person" under RFRA.  Rather, it amounts to the claim that in the ACA the government is pursuing a compelling interest.  Furthermore, dealing with this concern -- compelling government interests -- through the definition of "person" is probably not possible.  You'd need to come up with a defintion of "person" such that only persons asserting religious freedom claims that would never conflict with a compelling government interest would be covered.  I suspect that it's impossible to come up with such a definition.  (Perhaps a rule that only moderate Episcopalians or conservative Unitarians are "persons" under RFRA?)

Alternatively, I think that critics of Hobby Lobby just don't think that their religious exercise is really being burdened.  This isn't a church!  It's a for profit business!  Notice that again in this intuition we are trying to make the definition of "person" do work that is already being done elsewhere in the statute.  To make out a RFRA claim you have to show that there is a "substantial burden" on religious exercise.  Again, one could imagine drafting a definition of person such that the only folks that would qualify would be folks whose religion would be substantially burdened by challenged regulation.  Again, I doubt that it's possible to draft a definition of "person" that would do this well.  Especially if the same definition has to weed out cases with compelling government interests.  (Maybe we say that "person" includes only ultra Orthodox Jews whose lives are pervasively structured by detailed religious rules but can't include lapsed Methodists?)

So my answer to Jayne is, "Yes, the Court must rule that any for-profit corporation can claim to exercise religion."  In other words, yes any for-profit corporation is a "person" for purposes of RFRA.  The fact that any for-profit corporation can now claim to be exercising religion does not mean that it in fact is exercising religion.  If General Electric suddenly claims that it has religious objections to the securities laws that simply isn't the same thing as a Kosher butcher claiming religious objections to health codes that cannot be squared with kashrut.  They are both "persons" under RFRA.  One, I take it, has a good claim that their religious exercise is substantially burdened and one does not.

Creating a very broad definition of person means that you are going to have to weed out pretextual religious claims from good faith claims, substantial burdens from de minimis burdens, and compelling government interests from non-compelling government interests.  But we already have to do all of these things under RFRA when it comes to natural persons.  Courts reject RFRA claims that are pretextual or challenge law placing only de minimis burdens.  At times they find that there is a compelling government interest.  They do this without manipulating the definition of "person" to avoid the issue.

I understand if you think that the ACA mandate fufills a compelling government interest.  I get it if you don't think it substantially burdens Hobby Lobby's exercise of religion.  (I have my own doubts on that point.)  I don't think, however, that has anything to do with the definition of persons under RFRA.

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