For-Profit Free Exercise

Do for-profit businesses possess religious exercise protections? Mark Rienzi, of the Becket Fund for Religious Liberty and Catholic University of America, thinks they do and offers a detailed case for why in his new article, God and the Profits: Is There Religious Liberty for Money-Makers?

Rienzi surveys the diverse religious views on the interrelationship of piety and profit, noting that “many religions impose, and at least some businesses follow, religious requirements for the conduct of profit-making businesses.” While that alone does not translate into legal protection for for-profit religious exercise, it is sufficient to show that businesses following religious dictates in their practices are “exercising” religion by any logical definition.

The law already protects non-profit religious exercise in the non-profit corporate context, Rienzi argues, so relying upon whether religious protections, like speech protections in Citizens United , apply to corporate persons in general misses the mark.

On this point, as Rienzi’s legal survey shows, no such distinction between profit and non-profit corporate persons exists within constitutional questions—-and, what’s more, courts have routinely rejected arguments to apply them in that context. Neither, Rienzi argues, does such a distinction exist within the Religious Freedom Restoration Act—-the statutory protection for religious exercise at issue in the mandate litigation. Here, he cites to the law’s legislative history revealing a desire to have the Act’s word “person” protect “a single, uniform standard for religious freedom claims across all contexts.” Further, in an apropo analogy, Rienzi looks to for-profit companies like Whole Foods that clearly take moral views on economic philosophy or the environment, and explains the illogic of allowing corporations to take such views while maintaining that a company could not take a similar, religious-based position.

Given this disparity, Rienzi concludes “that denying religious liberty rights for profit-makers would actually require singling out religion for disfavored treatment in ways forbidden by the Free Exercise Clause and federal law.” Such a view of law would permit for-profit corporations to have the moral culpability of criminal convictions, take moral views on a slew of ethical concerns, and let corporations exercise other constitutional guarantees as persons while inexplicably siphoning off only for-profit corporations from religious protection.  Rather than give for-profit corporations the same religious protections as non-profit corporations, or other persons guaranteed constitutional protection, it would single for-profit companies out to deny them religious exercise. This, as Rienzi notes, turns religious liberty law on its head.

This article, the first to give comprehensive treatment to this question of increasing prominence within the federal courts, can be found  here .