After Hobby Lobby: the 'religious for-profit' and the limits of the autonomy doctrine.

• Author: Carmella, Angela C.
• Position: Abstract through II. The Applicability of the Autonomy Doctrine to Churches and Religious Nonprofits, p. 381-416

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? Should they be protected under the common understanding of religious liberty, with their claims balanced against governmental interests, and with a full evaluation of the impacts of an exemption? Or should they be protected under an autonomy analysis, with no regard for the consequences of an exemption? As a result of the Hobby Lobby decision, companies with a religious objection to contraceptive coverage as part of their employees' health insurance plans are exempt from the requirement to provide it. The Hobby Lobby majority employed a balancing approach under the statutory framework of the litigation, but owing to some unique circumstances in the case, the dissent (which would not have protected the for-profits at all) read the decision as the irresponsible grant of autonomy to a new class of claimants. (8) The dissent's interpretation of the Court's opinion raises several important questions. Must autonomy be limited to the church and religious nonprofit context? Could a for-profit entity explicitly make, and prevail on, an autonomy claim? More pointedly, are there particular types of for-profit entities that might explicitly and plausibly claim that the autonomy doctrine is applicable to them?

The most likely candidate for autonomy protection will be referred to as the "religious for-profit." A religious for-profit is an entity with explicit religious identity, mission, and undeniable "religious character" (9) that provides either: 1) religious goods and services; or 2) education, health care or social services more characteristic of a traditional nonprofit. Such an entity differs substantially from nearly every business that challenged the contraception mandate: closely-held for-profits engaged in secular endeavors, like arts and crafts retailers and cabinet manufacturers, but operated according to the owners' religious principles. (10) It may be that after Hobby Lobby, courts will remain within the balancing framework for assessing the free exercise claims of such secular businesses and their owners. But how will courts engage religious for-profits? These entities, in contrast to the secular corporations owned and operated by religious families, are not dependent upon or defined by their owners' faith. They are free-standing religious entities with a religious mission and may be closely connected, formally or informally, to a church or religious population. When religious for-profits bring free exercise claims post-Hobby Lobby, courts may be tempted to extend autonomy protections to them, perhaps by analogy to religious nonprofits.

An extension of the autonomy doctrine to for-profits as a constitutional mandate would be a mistake. The doctrine should remain limited to churches and religious nonprofits, where it functions to protect their institutional integrity and normative role in civil society, and where norms of consent operate (with some qualifications). (11) When courts employ autonomy, they are unconcerned with the negative impacts on identifiable persons and groups that result. Clergy men and women are not entitled to sue their churches for employment discrimination; (12) members cannot sue their churches for wrongful excommunication; (13) dissenting factions have no right to church governance or property; (14) patients denied abortions or sterilizations cannot compel religiously-affiliated hospitals to provide them; (15) employees not conforming to faith requirements cannot sue for religious discrimination; (16) those harmed by church counseling cannot claim clergy malpractice; (17) students and their families have no right to challenge decisions to close a religiously-affiliated school; (18) same-sex couples cannot sue churches for discrimination when denied a church wedding. (19) In most of these situations, there are compelling reasons for this "special solicitude to the rights of religious organizations," (20) even where the individual or group has suffered a harm that would be legally redressable in another context under federal or state statute or under state tort or contract law. (21)

Those reasons are rooted in the First Amendment, in which the Free Exercise Clause guarantees freedom to religious groups to define and constitute themselves, while the Establishment Clause ensures the structural independence of church and state. (22) Together the Religion Clauses provide a framework in which churches and religious nonprofits enjoy considerable latitude to serve as non-state mediating institutions in civil society. Religious organizations have the right to maintain a religious identity. (23) The autonomy doctrine protects not only the community but, ultimately, the individual who desires to belong to and participate in a faith community. In order to facilitate voluntary decision-making in this arena, it is critical to preserve the freedom of churches and other religious organizations to define and perpetuate themselves as they see fit.

By virtue of constitutional design, then, autonomy is intended to protect the institutional freedom of churches and many religious nonprofits in a categorical way, without regard to the loss of basic legal rights this protection can entail for others. Precisely because this approach is often accompanied by harmful impacts on identifiable persons and groups, it should be contained. (24) Indeed, the appropriate contours of autonomy, as applied to religious nonprofits in certain circumstances, are currently under intense scrutiny and are highly contested. (25) If we struggle over the doctrine's contours in the nonprofit context, then surely it should not be extended to for-profit institutions--not even to undeniably religious for-profits. Courts should adjudicate the free exercise claims of all for-profits, whether they are secular corporations operated according to religious beliefs or religious for-profits, within a balancing framework. (26) Although religious for-profits might look like analogs to religious institutions that...