After all, if corporations enjoy the free exercise of religion, all sorts of civil rights protections will be endangered. Nationwide, businesses have claimed that religious liberty grants them the right to discriminate against gay customers. Some religious sects object to placing women in positions of authority over men - if corporations have religious liberty, would such beliefs allow them to deny women promotions? Would companies owned by devotees of one faith be permitted to discriminate against job seekers of of another? According to a brief filed by Solicitor General Donald Verrilli, who is arguing the Hobby Lobby case for the administration, that's a live possibility. "Respondents' approach would even allow a for-profit corporation to discriminate in employment, such as by refusing to hire a devout member of a religion other than that of the corporation's owner," he wrote.
A new paper by University of Michigan Law School professor Sam Bagenstos on the creeping threat to Title II of the 1964 Civil Rights Act explains some of the danger here. Bagenstos highlights the Supreme Court's 2001 decision in Boy Scouts of America v. Dale, which exempted the Boy Scouts from a state law banning anti-gay discrimination in public accommodations. The court, wrote Bagenstos, "held that application of that law to bar the Scouts from excluding an openly gay Assistant Scoutmaster from membership violated their First Amendment rights of expressive association." Commentators, he wrote, minimized that decision as applying only to non-profit "expressive associations," not for-profit businesses. But Bagenstos argues that that distinction has always been unstable, and that the plaintiffs' theory in the Hobby Lobby case would collapse it.
"[O]ne potential implication of the challenges to the contraception mandate is the further erosion of the already flimsy commercial/expressive distinction," he writes. "A crucial premise of the challenges is that secular, for-profit corporations can be a vehicle for the religious exercise of their shareholders and that regulation of those corporations can violate rights to free exercise of religion."
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After all, if corporations enjoy the free exercise of religion, all sorts of civil rights protections will be endangered. Nationwide, businesses have claimed that religious liberty grants them the right to discriminate against gay customers. Some religious sects object to placing women in positions of authority over men - if corporations have religious liberty, would such beliefs allow them to deny women promotions? Would companies owned by devotees of one faith be permitted to discriminate against job seekers of of another? According to a brief filed by Solicitor General Donald Verrilli, who is arguing the Hobby Lobby case for the administration, that's a live possibility. "Respondents' approach would even allow a for-profit corporation to discriminate in employment, such as by refusing to hire a devout member of a religion other than that of the corporation's owner," he wrote.
A new paper by University of Michigan Law School professor Sam Bagenstos on the creeping threat to Title II of the 1964 Civil Rights Act explains some of the danger here. Bagenstos highlights the Supreme Court's 2001 decision in Boy Scouts of America v. Dale, which exempted the Boy Scouts from a state law banning anti-gay discrimination in public accommodations. The court, wrote Bagenstos, "held that application of that law to bar the Scouts from excluding an openly gay Assistant Scoutmaster from membership violated their First Amendment rights of expressive association." Commentators, he wrote, minimized that decision as applying only to non-profit "expressive associations," not for-profit businesses. But Bagenstos argues that that distinction has always been unstable, and that the plaintiffs' theory in the Hobby Lobby case would collapse it.
"[O]ne potential implication of the challenges to the contraception mandate is the further erosion of the already flimsy commercial/expressive distinction," he writes. "A crucial premise of the challenges is that secular, for-profit corporations can be a vehicle for the religious exercise of their shareholders and that regulation of those corporations can violate rights to free exercise of religion."
After all, if corporations enjoy the free exercise of religion, all sorts of civil rights protections will be endangered. Nationwide, businesses have claimed that religious liberty grants them the right to discriminate against gay customers. Some religious sects object to placing women in positions of authority over men - if corporations have religious liberty, would such beliefs allow them to deny women promotions? Would companies owned by devotees of one faith be permitted to discriminate against job seekers of of another? According to a brief filed by Solicitor General Donald Verrilli, who is arguing the Hobby Lobby case for the administration, that's a live possibility. "Respondents' approach would even allow a for-profit corporation to discriminate in employment, such as by refusing to hire a devout member of a religion other than that of the corporation's owner," he wrote.
A new paper by University of Michigan Law School professor Sam Bagenstos on the creeping threat to Title II of the 1964 Civil Rights Act explains some of the danger here. Bagenstos highlights the Supreme Court's 2001 decision in Boy Scouts of America v. Dale, which exempted the Boy Scouts from a state law banning anti-gay discrimination in public accommodations. The court, wrote Bagenstos, "held that application of that law to bar the Scouts from excluding an openly gay Assistant Scoutmaster from membership violated their First Amendment rights of expressive association." Commentators, he wrote, minimized that decision as applying only to non-profit "expressive associations," not for-profit businesses. But Bagenstos argues that that distinction has always been unstable, and that the plaintiffs' theory in the Hobby Lobby case would collapse it.
"[O]ne potential implication of the challenges to the contraception mandate is the further erosion of the already flimsy commercial/expressive distinction," he writes. "A crucial premise of the challenges is that secular, for-profit corporations can be a vehicle for the religious exercise of their shareholders and that regulation of those corporations can violate rights to free exercise of religion."