Do corporations have a right to free religious exercise?

© 2012 Jocelyn Kinghorn, Flickr | CC-BY-SA | via Wylio

Do for-profit corporations have a right to free religious exercise? A very interesting exchange took place last week at the law blog called Volokh Conspiracy. Responding to co-blogger David Post, atheist law scholar Ilya Somin argued that corporations can meaningfully exercise religion:

The idea that people can exercise religion through publicly traded corporations is regarded as absurd by many other critics of Hobby Lobby, as well. But a little reflection suggests that it is not absurd at all. As David recognizes, publicly traded corporations can engage in the exercise of free speech and many other constitutional rights. If the majority of stockholders decide that a corporation should publicize speech on political or moral issues, then the corporation will engage in such speech on their behalf. Similarly, stockholders can use corporations to adhere to a variety of secular moral principles. Some corporations boycotted apartheid South Africa because of the stockholders’ moral abhorrence of racism. If people can and do use publicly traded corporations to speak out on political issues or adhere to secular moral principles, then the same goes for religious principles. For example, the majority stockholders of a firm may choose to adhere to Orthodox Jewish religious law, and therefore refuse to do business on the sabbath.

If secular folks can muster moral indignation and make it part of their corporate practice, why can’t religious people? Somin–recall that he identifies himself as an atheist–goes on to affirm that religious exercise can be regarded as a public act:

David seems to draw a distinction between speech (which he recognizes can be exercised through a corporation), and religion (which he thinks cannot be), because speech is “an inherently public act,” while religion is not. I think that takes too narrow a view of religion. For many religious people, their faith is not just a purely private hobby. It is rather a set of moral principles that infuses every aspect of their lives, including their activities in the commercial world. If atheists like me can use publicly traded corporations to pursue secular moral principles, it is not difficult to see how religious people can do the exact same thing with their own beliefs.

Somin’s reasoning is clear, and his charity in discourse is exemplary.

The distinction really does seem to come down to whether one thinks religious acts are just done by people for the fun of it, or whether the religious person considers those acts to be as weighty as secular acts that come before the public courts. The former seems inconsiderate; the latter seems impossible to deny. There may be good reasons to disqualify a corporation’s line of reasoning for action, but merely attaching an eight letter word to it–“religion”–is not enough, and in itself is tantamount to irrational anti-religious discrimination.

If corporations can have the right undertake moral campaigns like divestment, boycotts, or make charitable contributions to non-profit organizations, then it should follow that corporations have the right to religious expression.