GW Law Faculty Publications & Other Works

Document Type

Chapter

Publication Date

2015

Status

Forthcoming

Abstract

Corporate religious liberty appears to be on the rise. The Supreme Court’s unanimous decision in Hosanna Tabor v. EEOC (2012) energized sweeping theories about “freedom of the church.” The Court’s more controversial decision in Burwell v Hobby Lobby Stores, Inc. (2014) determined that for-profit entities may be legally entitled to claim a corporate religious character. Speaking in the language of rights, commentators have vigorously debated the foundations and meaning of these decisions.

This chapter argues that these debates are misdirected. The special treatment of religion in American constitutional law does not properly rest on any theory that religious entities enjoy a distinctive set of rights. Instead, the relevant limitation on government arises from the Constitution’s Establishment Clause. The governing principle, deeply grounded in history, can best be understood as a prohibition on government involvement – through regulation or financial support – in “purely and strictly ecclesiastical matters.” That principle (developed at greater length in our book, Secular Government, Religious People) explains why the government may not decide, for example, who is fit for ministry or which faction within a church is acting in fidelity to its original teachings. The principle applies with equal force to the state’s relationship with houses of worship, religious non-profit institutions such as schools or charities, and for-profit businesses whose owners assert a corporate religious character. The only legally relevant differences among these types of organizations should be derived from the likelihood that the principle will be implicated in any particular case.

After reviewing the 19th century underpinnings of this singular approach, and offering pertinent reminders of limits on state financial support for religious teaching, the chapter focuses primarily on the context of employment regulation. Along the way, the chapter addresses concrete questions, such as whether a for-profit business can ever successfully assert a ministerial exception with respect to any of its employees. The answer may surprise you.

GW Paper Series

2014-56

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