Academic journal article Missouri Law Review

After Hobby Lobby: The "Religious For-Profit" and the Limits of the Autonomy Doctrine

Academic journal article Missouri Law Review

After Hobby Lobby: The "Religious For-Profit" and the Limits of the Autonomy Doctrine

Article excerpt

ABSTRACT

Churches are protected under the autonomy doctrine, which is rooted in the Religion Clauses, to ensure that they are free to define their institutional identity and mission. In more limited circumstances, many religious nonprofits also enjoy autonomy protections. Now that the Supreme Court has decided in Burwell v. Hobby Lobby Stores, Inc. that for-profit corporations are capable of religious exercise and entitled to statutory free exercise protection, this Article poses a question that is on the horizon: would it ever be plausible to extend the autonomy doctrine to a for-profit institution? This Article identifies several types of for-profits (named "religious for-profits") that appear to deserve autonomy protection. But it concludes that they do not --not as a matter of constitutional law. This Article distinguishes religious for-profits from churches and from those religious nonprofits that warrant autonomy protection. It also notes that autonomy protection for some religious nonprofits that act like for-profits is highly contested; now is certainly not the time to expand the doctrine to include for-profits.

Why is it wrong to apply the autonomy doctrine to for-profit entities? Autonomy justifies categorical exemptions, which often result in harmful consequences to specific individuals and groups. If autonomy is extended to for-profits, those negative impacts will multiply in number and intensity when coupled with the massive economic power of those entities. Autonomy protections traditionally have been applied exclusively within the church-and-non-profit sector. Indeed, autonomy is reserved for jurisgenerative communities operating under some type of consent based norms, which is not the case in the for-profit context. Finally, the expansion of autonomy to include for-profits threatens to dilute the entire doctrine, which could result in the loss of protections for churches on core matters of identity and mission. Instead, this Article proposes that the best way for courts, legislators and regulators to protect the religious freedom of for-profit entities is to apply a balancing approach, which takes into account and tries to mitigate the impacts on others of any exemption granted to a religious claimant.

INTRODUCTION

When courts decide whether to protect religious exercise by giving a claimant an exemption from a law, they employ one of two approaches: either a balancing of the religious claim against the government's interest or an autonomy approach. (1) The balancing approach is commonly used when the issue is whether to grant a free exercise exemption available under several federal statutes, under the law in about half the states, and (in limited circumstances) under the Free Exercise Clause of the First Amendment. (2) Balancing applies in most situations when a religious claimant--whether an individual or an entity--demonstrates a government infringement on religious exercise. (3) The autonomy approach, rooted in both the Free Exercise and Establishment Clauses, applies only to churches and to religious nonprofits (in certain circumstances) and serves to ensure their institutional freedom to define their identity and pursue their mission. (4) Under the balancing approach, courts are supposed to consider any negative impacts an exemption might have on identifiable persons or groups when assessing whether the exemption is warranted. (5) But under the autonomy approach, which employs categorical exemptions, courts do not take into account the resulting consequences. (6) Even in the face of severe impacts that are not legally redressable, the exemption will be granted in order to ensure the autonomy of the religious institution.

The Supreme Court recently determined in Burnell v. Hobby Lobby Stores, Inc. that for-profit corporations can exercise religion. (7) Now that this threshold decision on for-profit religious exercise has been made, the normative question emerges: how ought we protect for-profits? …

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