I’ve seen some skeptical responses to my previous post about corporations and free exercise, of which Dahlia Lithwick’s and David Gans’s are emblematic. My point, recall, was that the Third Circuit’s logic led to the conclusion that churches don’t have free exercise rights, and that even though the Third Circuit said that that didn’t have to follow, it didn’t provide any good reason why not.
Lithwick and Gans both respond that business corporations are different from churches because churches are founded for religious purposes while business corporations are not. Even if so, that would still force the Third Circuit to abandon its “corporations have no consciences, no beliefs, no feelings,” theory. Perhaps a different argument can be made for why corporations founded for non-religious purposes can never ever ever have religious rights, but it’s not the argument the Third Circuit tried.
But the real point of this post is to highlight an example invoked by Rick Garnett at Mirror of Justice, which I think deserves to be emphasized. What about an anti-kosher law? Imagine that an antisemitic legislature passes a law forbidding any business corporation from possessing or selling any kosher meat, for no other reason than animus toward Jews. Many butchers, grocers, and restaurants operate through corporations. Does it follow that they would have no ability even to challenge the law on religious grounds? That strikes me as a strange result, and it is not compelled by any precedent. It would make far more sense to say that corporations or the real parties in interest behind them have the ability to make religious-freedom claims, whose sincerity and validity will be judged on the merits.
[I understand that one might well conclude, on the merits, that the rules for contraceptive coverage are very different than a law directly targeting kashrut. […]