July 02, 2014
On Hobby Lobby
Posted by Elizabeth Pollman

I love Usha’s post today and it adds to some excellent commentary on the Hobby Lobby decision.  For those looking for a curated sampling, I think these are some of the highlights in addition to Usha's post: 

  • Kevin Russell’s SCOTUSblog post about discrimination concerns 
  • Kent Greenfield’s SCOTUSblog post about unconstitutional conditions and corporate law 
  • [Addendum:  Lyman Johnson's post via Haskell Murray today on corporate purpose ... and no doubt there is and will be other interesting commentary...]

The case raises a host of important and interesting issues that I hope to examine in various projects, but I thought I might venture out to briefly share a couple of things weighing on my mind. . . 

First is the question of when to look through the corporation to the people associated with it and when to give weight to the separate legal identity of the corporation.  How and when should the legal form matter?

Here it seems there is a lot more work to be done.  Part of this work would be giving a more nuanced treatment to the relationship between corporate law and constitutional law (or statutory law like RFRA), and part of this work might be reconciling the Court’s own jurisprudence (e.g., regarding "purely personal" guarantees).

Second is the question of what to do when people associated with the corporation have competing interests (and in which part of the analysis should this factor).

The majority opinion stated:  "An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another.  When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people."  This statement makes sense--corporations don’t have rights because they are corporations, but rather to protect natural persons.  That is not to say, however, that all corporations have the same claims to constitutional (or statutory) protections as natural persons.

Further, a real difficulty arises when people associated with the corporation have competing interests or, stated differently, when the people associated with a corporation aren’t acting together with a common interest that would be protected. 

The majority gives a couple of examples of how corporate rights are meant to protect natural persons, stating:  "extending Fourth Amendment protection to corporations protects the privacy interests of employees and others associated with the company" and "[p]rotecting corporations from government seizure of their property without just compensation protects all those who have a stake in the corporations’ financial well-being."  

With those examples, though, it seems likely that the people associated with a corporation would have common interests that are being protected.    

As Justice Ginsburg points out in her dissent, that isn’t the case here with religious exercise because the exemption "would deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage that the ACA would otherwise secure."  And further, "a balanced approach is all the more in order when the Free Exercise Clause itself is at stake, not a statute designed to promote accommodation to religious beliefs and practices." 

In addition, the dissent questions the majority's assertion that "[s]tate corporate law provides a ready means for resolving any conflicts."  This point calls to mind how the Citizens United majority (and Bellotti before it) relied on the metaphor of "corporate democracy."  Corporate law seems to be increasingly tasked with complex issues that I worry it is not particularly well suited to resolve.

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