July 16, 2014
Replying to Ronald Columbo on Corporate RFRA Rights
Posted by Amy Sepinwall

Thank you, Ron, for your very thoughtful treatment of my post. I think we agree more than we disagree. The fundamental point of disagreement seems to be whether an organization that is run according to a religious code should count as religious, with you supporting the claim that it should and my seeking to deny that claim.

You say that you "have trouble understanding why such an entity [i.e., a for-profit corporation committed to honoring the Lord in everything it does] would be exercising religion any less than a religiously affiliated soup kitchen." I agree -- both for-profit and non-profit entities that are run in accordance with religious precepts are equally religious. It's just that I think that neither of them counts as religious in the sense of the word that I have in mind.

As the vegan/kosher analogy aims to make clear, there is a difference between conduct that happens to abide by a set of religious precepts and religious observance. The latter requires more than mere conformity with the precepts; it requires knowledge of the precepts themselves, a commitment to those precepts, and a motivation to observe those precepts precisely because they are commanded by one's deity/religion. 

Sometimes all we mean by "religious" is "run in accordance with the rules of some religion." In that sense, Hobby Lobby is as religious as, say, the Franciscan Sisters of the Poor Homeless Shelter. 

But there is a more demanding sense of "religious" -- one that tracks the notion of "observance" described above. I think we recognize and distinguish between these two conceptions of "religious" in everyday talk. Thus, when we refer to a person as a "religious individual" I think we (at least sometimes) mean more than that his acts align with the precepts of a given religion. In addition, we mean that he has internalized those precepts -- he follows them because they are what his religion commands. Organizations -- again, whether profit or non-profit -- cannot internalize in this way.

Now, my arguments against corporate religious exercise presuppose a further claim -- viz., that one who claims a religious exemption must satisfy the more demanding sense of "religious" as in "religious observance" You likely disagree. But given that the outcome for RFRA exemptions will be the same for both of us -- you will rest your claim for an exemption on the corporation's religious nature and I will rest it on that of the owners -- it isn't clear to me that the disagreement between us amounts to much. (The lawyer in me thinks this is a good thing -- always better to have multiple lines of argument leading to the same conclusion!)

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