Mirror of Justice

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Tuesday, November 13, 2012

Colombo, "The Naked Private Square"

Ron Colombo has a new piece (with a superb title) on the religious free exercise rights of corporations.  Agree or disagree, the article is both provocative and timely, as it relates to some of the religious freedom controversies currently vexing courts.

ADDENDUM: See also this interesting post by Michael Helfand related in part to the issue of conscience rights of for-profit organizations. 

http://mirrorofjustice.blogs.com/mirrorofjustice/2012/11/colombo-the-naked-private-sphere.html

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Great article. In federal district court in DC on Friday, DOJ argued that a devout Bible publishing company that gives over 100% of its proceeds to charity is categorically incapable of exercising religion.

Posted by: Matt Bowman | Nov 13, 2012 3:01:09 PM

Why isn't Tyndale organized as a for-profit business?

Has it ever been ruled before that a for-profit corporation can exercise religion? My impression is that it has not.

How can a company give "over 100% of its proceeds to charity"?

Posted by: David Nickol | Nov 14, 2012 9:44:48 AM

I totally agree with you, Matt..

Posted by: Alexis Marlons | Nov 14, 2012 2:55:52 PM

I have a question about Tyndale (and other cases like it). 1 USC 1 defines "person," in any Act of Congress, as including "corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals."

So in interpreting the term "person" in the RFRA -- an act of Congress -- wouldn't a court look to 1 USC 1 and be forced to conclude that "person" includes corporations or companies? 1 USC 1 does not contain any limitation on for-profit or non-profit. Doesn't this kill the goverment's case? Am I missing something here?

Posted by: Matthew W | Nov 14, 2012 6:57:31 PM

Tyndale pays significant royalties to a nonprofit religious charity, then it tithes its pretax income, and then about 97% of its dividends go to a non profit religious charity.

As Prof. Colombo concludes on page 75, after an extensive survey of the caselaw, all the cases weighing in on this question count in favor of the reality that people can exercise religion through business corporations, many courts have allowed them to bring free exercise claims, and not one single court has ruled they cannot.

Posted by: Matt Bowman | Nov 14, 2012 8:35:32 PM

And as the Minnesota Supreme Court declared, "The Commissioner's conclusory assertion that a corporation has no constitutional right to free exercise of religion is unsupported by any cited authority." 370 N.W.2d 844

Posted by: Matt Bowman | Nov 14, 2012 9:50:57 PM