Alan Meese & Nathan Oman: Hobby Lobby, Corporate Law, and the Theory of the Firm
In the Harvard Law Review Forum, Alan J. Meese (William & Mary) & Nathan B. Oman (William & Mary) have an essay titled Hobby Lobby, Corporate Law, and the Theory of the Firm: Why for-profit corporations are RFRA persons. From the introduction:
We make three basic claims. First, corporate law does not discourage for-profit corporations from advancing religion. Second, such businesses do not undermine the goals of corporate law, nor would it undermine such goals to grant these firms religious exemptions from otherwise neutral laws in appropriate cases. Third, given the plausible reasons for protecting religious exercise by for-profit corporations, there is no reason to reject the most natural reading of RFRA’s text, namely that “person” includes private corporations of all kinds. This does not mean, of course, that every RFRA claim by a for-profit corporation should be successful. In some cases there will be no substantial burden on religious practices, and in other cases the government may have a compelling reason for regulating corporations. RFRA, however, does not assign the task of weeding out such undesirable religious exemptions to the definition of “person.” Rather, other statutory provisions do that work.
Mark Movsesian (St. John's) comments (favorably) here: Why Hobby Lobby is a Person -- in particular, emphasizing this point:
Most people think of a corporation as a large, publicly-traded firm with thousands of passive shareholders who have little to do with day-to-day operations: Exxon Mobil. It would be strange for such a corporation to exercise a religion. But most corporations, like Hobby Lobby itself, are small, private firms with a handful of shareholders. It’s not at all strange to think that the five owners of Hobby Lobby could wish to run their corporation in a way that advances their religious values.
Meese and Oman argue against drawing a distinction, for RFRA purposes, between large corporations like Exxon Mobil and close corporations like Hobby Lobby. But the distinction could be a way for the Court to avoid practical difficulties. The Court could hold that close corporations like Hobby Lobby are RFRA persons and save the question of large corporations for another day. Indeed, Chief Justice Roberts hinted at that outcome during oral argument.
UPDATE: Stephen Bainbridge (UCLA) says Meese and Oman on Hobby Lobby is a "Must Read".