Academic journal article St. John's Law Review

An Antitrust Approach to Corporate Free Exercise Claims

Academic journal article St. John's Law Review

An Antitrust Approach to Corporate Free Exercise Claims

Article excerpt


The scope and contours of religious liberty in the United States have never been entirely clear. Some clarity was interjected in 1990 when the United States Supreme Court attempted to render a definitive interpretation of the Free Exercise Clause.1 The Court explained that the First Amendment does not grant the faithful an automatic exemption from laws of general applicability,2 but rather merely enables legislatures to promulgate accommodations within their discretion.3 The effect of this decision was, in part, short-lived, as it prompted Congress in 1993 to enact the Religious Freedom Restoration Act ("RFRA")-a global exemption from all past and prospective federal legislation-that Americans could assert under appropriate circumstances.4 Although RFRA complicated the situation, it would be incorrect to accuse the statute of muddying the jurisprudential waters to the state they were in prior to 1990.5 More accurately, RFRA substituted a broader, legislative approach to religious liberty in place of a narrower, judicial approach to religious liberty.

In 2014, in a development unexpected by many, the Supreme Court held that RFRA's broad religious liberty protections extend not only to private individuals, but to for-profit business corporations as well.6 This has opened a Pandora's Box of fears, as businesses are subject to a plethora of significant regulation that ordinary individuals are not.

Rising to the top of this list of fears is anxiety over the future of certain equality-based, statutory protections for consumers and employees. More specifically, corporate free exercise rights are often seen as undermining our nation's antidiscrimination laws, as well as regulations designed to ensure ready access to contraception.7 These concerns deserve to be taken seriously.

What also deserves to be taken seriously are the religious liberty protections contained in RFRA as interpreted by the Supreme Court. At a minimum, RFRA gives rise to a set of statutorily created rights no less valuable, objectively speaking, than those created by our nation's antidiscrimination and contraceptive access laws.8 Moreover, given the historical interpretation and legislative history of the First Amendment, one would be on solid ground in arguing that RFRA indeed "restored" religious liberty rights as its name suggests, bestowing upon RFRA's protections a weighty constitutional pedigree.9

Unfortunately, few commentators seem genuinely willing to take both sets of rights, those established or restored by RFRA, and those established to advance equality, seriously. immediately apparent from any review of the literature or commentary on the subject is that two distinct sides have formed, with each possessing little understanding or empathy for the other.10 This article hopes to buck that trend, proceeding from the perspective that the worthiness of each set of rights demands a solution in which no one set predominates via the marginalization of the other, offering a path forward in which the law endeavors to balance these competing rights, rather than subjugate one set to another. Such a path can be forged from the insights and wisdom of U.S. antitrust law. For antitrust law struggles with a balancing act of its own: that of promoting vigorous competition on the one hand while prohibiting competition that is "unreasonable" or "unfair" on the other.

In a free market economy, businesses are expected, and indeed relied upon, to compete fiercely against one another. Such competition is generally deemed good for consumers and the economy as a whole. This must be distinguished from competition that is deemed "unreasonable," or in some cases "unfair," an antitrust term of art that refers to undertakings that are injurious to consumer welfare in the long run if not in the short run as well. The line between these two concepts, of reasonable and vigorous competition versus unreasonable and injurious competition, can be extremely fine. …

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