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This chapter sets the Hobby Lobby decision in the context of the history of the corporation, showing how the church, the state and the corporation, as sovereign entities, exercise religious authority through the controlling of sex and reproduction.

Does a business corporation constitute a “person” that can “exercise religion” under the Religious Freedom Restoration Act of 1993? In Burwell v. Hobby Lobby Stores, Inc., the Supreme Court answered this novel question in the affirmative, but this chapter shows that its anemic treatment of corporate law and theory provided little guidance on how to implement and limit the landmark ruling. This chapter critically examines the issues of corporate law and theory driving the Court’s analysis: (1) the theory of the corporation as a right holder; (2) corporate purpose; (3) the “closely held” category; and (4) state corporate law as a mechanism for resolving disputes about a corporation’s religious activity or purpose. Despite the weaknesses of the Hobby Lobby opinion, the decision nonetheless adds weight to the work of corporate law in ordering the rights of organizations and their social and religious roles, raising new questions for future exploration.

In Burwell v. Hobby Lobby Stores, Inc. (2014), the U.S. Supreme Court held that a national chain of craft stores whose Christian owners believed contraception was a sin against God could not be forced to provide their employees with insurance coverage for contraceptives. With the extension of personhood to corporations and the economizing of civic and ethical life, personhood is remade as human capital, and the field in which rights are exercised becomes a realm of the market. The decision illustrates how neoliberal jurisprudence facilitates a specific set of evangelical conservative Christian aims today and how it enables a kind of market evangelicism that pushes back against secular guarantees of equality and nondiscrimination. Hobby Lobby is one of a series of recent decisions that remakes both personhood and rights through neoliberal reason, marking a specific neoliberalization of conscience itself.

The Supreme Court’s willingness to grant the religious freedom of persons to corporations reflects the expansion of the power of private institutions. Religious privacy does not protect personal choices, but empowers a private sphere that contains institutions (such as churches, families, and corporations) that can exercise power over individual consciences. This model of privacy derives its persuasive force from a defense of individual liberty that in practice gives ideological support to private forms of institutional power. When property is held to be sacred, persons and corporations seek protection from profaning contact with the bodies and choices of others. Persons understood as property feel most free when they are absolved from performing the labor of producing a society in which people can live together.

Culture war issues are creating open hostility to religious liberty. We see this in the exaggerated reactions to Hobby Lobby, in the hysterical reactions to the Indiana RFRA, and in attacks on regulatory exemptions even for nonprofit religious organizations. The contraception mandate and the demand that wedding vendors serve same-sex weddings are unprecedented efforts to suppress the practice of core religious teachings of our largest religions. Of course this escalation led to litigation. Hobby Lobby is a narrow decision in response, limited to cases where the effect on employees would be “precisely zero.” The Indiana RFRA did nothing that the federal RFRA and thirty other states had not already done, and no one had ever been exempted from a discrimination law under a RFRA standard. Religious liberty is a secular liberal value. Progressives should not abandon it the moment they perceive any conflict, however marginal, with their other values.

In the blowback over Hobby Lobby, nothing has figured more prominently than the implications for same-sex marriage and LGBT rights. Critics now challenge all concessions to religious believers—whether generalized religious freedom protections, like RFRAs or specific exemptions to particular statutes—as “licenses to discriminate.” Both, critics charge, hamper social change, create unfair surprise, and tread on the interests of third parties. This chapter contends that general accommodations and specific exemptions are quite different in their burdens and impacts. Specific exemptions, which reach a limited universe of situations, often are written as specific rules, making them more predictable. Specific exemptions clarify the government’s intent not to impose a legal duty on everyone. They create little risk of unfair surprise and can be tailored to avoid hardships to third parties. More fundamentally, specific exemptions can smooth the way for the realization of new civil rights, as the recent Utah Compromise illustrates.

This chapter provides a critical analysis of the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc. Although the result in that case may have been a close question, Justice Alito’s opinion for the majority adopted an approach that is excessively formalistic, that treats as separate certain elements of the Religious Freedom Restoration Act (RFRA) that should be seen as interrelated, and that takes inadequate account of administrability concerns. After providing a description of the case and what the opinions of the Justices asserted, this chapter proceeds to critique the Court’s decision regarding a number of issues, including whether RFRA applies to for-profit corporations, whether Hobby Lobby suffered a “substantial burden,” and whether the government had a compelling interest and adopted the least restrictive means to achieve it. This chapter emphasizes that these issues are deeply interconnected, so evaluating them requires a comprehensive, context-specific, and multifaceted interpretive approach.

Chapter 5 examines how the issue of contraceptive coverage under the Affordable Care Act (ACA) was debated in the Supreme Court. Relying on a detailed content analysis of the amici curiae briefs, oral arguments, decisions and dissents presented during Burwell v. Hobby Lobby, Inc. and Zubik v. Burwell, this chapter shows that while “religious freedom” frames were almost entirely absent in the initial debates over the ACA, they became the dominant approach to understanding the contraception issue during litigation. Moreover, the evidence presented here demonstrates that the gender of the participants in these cases shaped their framing choices in ways that transcended their support or opposition for the ACA’s contraceptive mandate. In other words, the dominant frame of the debate over contraception coverage evolved considerably over time, and gender considerations were paramount in dictating how different actors chose to frame their discussions of the birth control mandate.

This chapter considers how work became so central to contemporary life and how the corporate workplace became a particular site of political freedom and activity. The essay begins by looking at several instances of individual acts of conscience by working people: Bowe Bergdahl, Kim Davis, and Edward Snowden, and considers how those individuals experienced punishment for their acts of workplace conscience whereas a corporation, Hobby Lobby, was awarded its religious freedom for a corporate act of conscience. Through a history of the corporation in the United States, this chapter tracks how corporations have become worthy of expanded legal protections and have become increasingly affirmed as locations for self-formation and social incorporation. The chapter points to the way corporations and religions in the US have different legal expectations yet similar conceptual terms for engagement.

In recent years, cases like Hobby Lobby and Elane Photography have led to increasing doubts about the propriety and justness of religious exemptions. Hobby Lobby and Elane Photography are important decisions. But they are sometimes taken as representative examples of the cases typically brought under the federal Religious Freedom Restoration Act (RFRA) and state-law RFRAs. But this is a mistake. Statistically speaking, Hobby Lobby and Elane Photography are outliers. The majority of RFRA and state RFRA cases have little to do with discrimination or sexual morality or the culture wars. This chapter discusses those cases, whose importance has sometimes been overlooked, to highlight the enduring importance of RFRA and state RFRAs for the protection of religious minorities. It discusses some modern critiques of RFRA and state RFRAs, and offers some possible responses.

In recent years, changes to state and federal law have increased pressure on corporate law to serve as an ordering mechanism for interests and values beyond economics. On the federal front, two U.S. Supreme Court cases have put existing corporate law in a new quasi-constitutional light. In the landmark decisions of Citizens United v. FEC and Burwell v. Hobby Lobby Stores, Inc., the Supreme Court has pointed to state corporate law as the mechanism for ordering political and religious activity. In addition, Congress, the SEC, and federal courts have been embroiled in battles about the scope and appropriateness of regulating corporate speech and disclosures on topics such as conflict minerals and political expenditures that are driven principally by humanitarian and democratic concerns rather than economic goals. On the state law front, a movement of social entrepreneurs has catalyzed a majority of states to adopt legislation for a new form of business entity — the benefit corporation. The public push for this form of corporate entity harkens back to early American law, permitting businesses to be chartered to pursue a dual mission of profits and a social, religious, or environmental goal. This chapter examines these developments and their implications.

This chapter makes three points: (1) Religion Clause precedent supports the Supreme Court’s unanimous acknowledgment in Hobby Lobby that RFRA exemptions are limited by the burdens they impose on so-called “third parties”—persons who derive no benefit from an exemption because they do not believe or engage in the exempted religious practice; (2) the majority’s assertion in footnote 37—that employees are not burdened when an employer is excused from complying with laws enacted to benefit them—is anachronistic and implausible in a regulatory state like the United States, where “liberty” is defined as much by the intervention of the state as by its absence; and (3) the Court’s Religion Clause and Title VII precedents suggest the common legal standard of “materiality” as the proper measure of when third-party burdens become excessive—that is, when they are sufficiently weighty to preclude RFRA exemptions and other permissive religious accommodations.

This chapter examines the First Amendment doctrine that the Supreme Court is now developing. Burwell v. Hobby Lobby, the Court’s most important recent decision on accommodation, is no victory for religious liberty. It replaces the sensible regime of balancing with a rule whereby religion will almost always be given special treatment, even if that means that nonadherents suffer enormous harm. If this is now to be the authoritative meaning of freedom of religion, then the consensus that once supported it will inevitably collapse. This chapter shows the destructive implications of the decision for the discrimination question—implications that have already been drawn by several federal courts.

Many of The Satanic Temple’s political campaigns and legal actions depend on invoking their religious rights. However, critics have responded that The Satanic Temple is not a “real” religion but merely “trolls” who only pretend to have sincerely held beliefs. These critics typically point out that The Satanic Temple do not believe in a literal Satan or any supernatural force. This argument featured prominently when The Satanic Temple sued the state of Missouri over its abortion laws. This chapter makes several theoretical interventions into this controversy. First, the category of “invented religions” is helpful for thinking about how The Satanic Temple can be sincere despite lacking supernatural beliefs. Second, it is argued that The Satanic Temple possesses characteristics common to more familiar religions. Finally, it is suggested that the very act of invoking religious liberty has caused Satanists to think about their worldviews differently.

When the Hosanna-Tabor opinion was handed down, it was widely seen as an important, but also an importantly limited, case. It was, many concluded, just about churches and other “houses of worship.” But Hobby Lobby changed all of that, by indicating that for-profit businesses are also potentially included in the now much broader category of “religious organizations.” This chapter charts this expansion and tries to provide a workable framework for determining what counts as a religious organization. While not providing an exhaustive definition of “religious organizations,” the author does note some factors courts will have to consider in deciding whether or not the protections of Hosanna-Tabor should apply. The author then addresses the scope of the constitutional right granted to religious organizations, drawing on recent case law to identify some proper boundaries.

Group religious freedom claims are growing in number and prominence, despite demographic shifts away from individual affiliation with religious groups. This chapter explores this apparent tension, focusing on why group claims have come to the fore now. The authors offer a multivalent explanation rooted in a single phenomenon: the continuing “culture wars” between religious conservatives and social progressives. Progressives have pressed claims for a broad egalitarian regulatory state and criticized religious accommodations. Religious conservatives, in turn, have intensified in their commitment to the value of religious group autonomy and drawn on group-oriented elements in social thought and legal doctrine to press such claims with the substantial resources at their command. Ultimately, both moves are underwritten by the cultural and political polarization of contemporary American society. The authors’ thesis has important implications for the law and policy of church-state relations.

Political parties and religious organizations not only have similar goals—they want the freedom to choose their leaders and exclude some from membership—they also have been shown a “special” solicitude by the Supreme Court in support of pursuing these goals. This chapter draws a comparison between political parties and religious organizations. The chapter argues that the rights of both kinds of groups should be seen as having a common justification: political parties and religious organizations serve particular functions in American society—parties are vehicles of democratic elections and religious organizations are vehicles of individual and group religion. The scope of the associational right in each case should, accordingly, be defined relative to the ability of the group to fulfill its function. This conclusion has implications for organizations that, although advancing political or religious aims, do not have these as their main function.

Does it make sense to attribute rights of conscience to corporate entities? A common approach to answering this question is by inquiring into the nature of various types of groups (for example, churches, associations, and for-profit corporations) and asking whether these entities are moral agents, or persons, to which we should attribute various types of rights. Against this ontological approach, the chapter argues that determining the metaphysical status of groups is neither necessary nor sufficient for attributing rights to them. To defend this claim, the chapter first considers and rejects H. L. A. Hart’s semantic critique of corporate personality. Instead it follows John Dewey’s realist argument against the relevance of group ontologies. That argument is then developed and applied to current litigation over whether for-profit corporations can assert rights of religious free exercise against regulations requiring insurance coverage for contraception.

Corporate religious liberty appears to be on the rise. The Supreme Court’s decision in Hosanna-Tabor v. EEOC energized theories of “freedom of the church.” The Court’s decision in Burwell v. Hobby Lobby Stores, Inc. determined that for-profit entities may be entitled to claim a corporate religious character. This chapter argues that recent debates about the meaning of these decisions are misdirected. The special treatment of religion in constitutional law does not rest on any theory that religious entities enjoy distinctive rights. Instead, the limitation arises from the Constitution’s Establishment Clause, which prohibits government involvement in “purely and strictly ecclesiastical” matters. This principle applies with equal force in the state’s relationship with houses of worship, religious nonprofits, and for-profit businesses whose owners assert a corporate religious character. The only relevant differences among these organizations should be derived from the likelihood that the principle will be implicated in any particular case.