March 24, 2014
Are the cases distinguishable?
Posted by Ronald Colombo

Thank you to Gordon Smith and the organizers of this symposium for allowing me to participate.

Rather than repeat the very fine comments and observations that have already been posted, I'd like to take this opportunity to say something that I have not heard said before:

Although Hobby Lobby and Conestoga have been treated identically by commentators, perhaps there is a means by which they could be distinguished.

As i read Hobby Lobby, an effort is made to claim that the company itself has a religious identity.  In Conestoga, however, that claim isn't really pressed.  I think this may be an important distinction.

For as I see things, a corporation's ability to avail itself of Free Exercise rights should turn largely on its categorization as a(n) (religiously)  expressive association.  Justice O'Connor's reservations notwithstanding, it would seem to me as though corporations can indeed be expressive associations (and some apparently are).  Although Dale calls the expressive / non-expressive dichotomy into question, it does so by making the test even more lenient -- not stricter.  Thus, to the extent that a corporation qualifies as an expressive association, I believe it ought to be able to bring forth a free exercise claim.  (Shameless plug:  I expound upon this in The Naked Private Square, 51 Hous. L. Rev. 1 (2013)).

However, the mere fact that a corporation's shareholders happen to be religious do not, I suggest, transform the corporation itself into a religiously expressive association.

Now, there may be other reasons to find in favor of the free exercise claimants in such cases.  For example, Prof. Bainbridge's arguments on PCV strike me as compelling.  But those arguments are different, I suggest, than the arguments why a genuinely religiously expressive corporation ought to be able to avail itself of the Free Exercise Clause.


-Ron Colombo

Corporate Law, Hobby Lobby, Religion | Bookmark

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