Monday, August 12, 2013
[I]t does not seem to me that the question presented in a case like Hobby Lobby (or like Notre Dame's own case) is not "does a corporation have free-exercise rights?" The better way to think about it, I think, is to look at the relevant state action, and to ask, "is the government acting in a way that burdens religious exercise or violates the no-establishment norm." The First Amendment, after all, is not (only) a collection of claims or entitlements that individuals and entities have (or don't have). It's a command to the government: Don't violate "the freedom of speech"; don't burden the "exercise of religion."
It is obvious that some regulations of corporations violate "the freedom of speech." And, we can evaluate (and invalidate) such regulations without asking whether corporations have souls, or consciences, or beliefs, or selves-in-need-of-actualization. It seems equally obvious that some regulations of corporations -- including for-profit corproations -- can burden religious exercise (e.g., "no business corporation may sell Kosher meat") and so can (but might not) violate RFRA or the First Amendment. . . .