The Washington Post

News flash: Secular businesses don’t much care about religious businesspeople’s religious rights claims!

A Slate article by David Gans makes much of the fact that business groups haven’t stood up to support Hobby Lobby’s religious exemption claims:

This spring, the Supreme Court will decide — for the first time in our nation’s history — whether secular, for-profit corporations are entitled to invoke the constitutional guarantee of the free exercise of religion. The stakes are huge, as the justices will determine whether business corporations can claim a religious exemption from federal laws that protect the rights of their employees. You would think that corporations, which routinely jump in to protect their interests at the high court, would have weighed in on an issue of such significance. But not this time. Indeed thus far, the response of the business community has been near-total silence.

But wait — why exactly would you think that most corporations, and their advocacy groups (such as the Chamber of Commerce) — will speak up for the rights of religious businesspeople? Corporations may “routinely jump in to protect their interests.” Religious exemption claims, however, can potentially be made by only a tiny minority of corporations, basically ones that are closely held and owned by religious people who have particular kinds of religious objections. Protecting those businesspeople’s rights won’t protect the rights of most Chamber of Commerce members. “Near-total silence” is a perfectly sensible response under those circumstances, and says nothing about the merits of the claim.

Likewise, the article says,

[The Chamber of Commerce] decided not to support the claim that secular businesses can exercise religion. This stands in sharp contrast to Citizens United, when the chamber urged the court to grant corporations the right to spend unlimited money on elections. The chamber had a lot to say about corporate personhood when it came to free speech.

Of course it did, because nearly all business corporations speak in one way or another — nearly all engage in commercial advertising, many engage (or might contemplate engaging) in lobbying, and many engage (or might contemplate engaging) in speaking out about political issues that matter to their business. But that “stands in sharp contrast” to RFRA claims, which the overwhelming majority of businesses will never benefit from.

Say what you will about the merits of Hobby Lobby. (I’ve said a huge amount.) But judging the merits of minority rights claims (here, the claims of the minority of businesses that are privately owned by businesspeople who have religious objections to laws that cover the businesses) by whether majority-dominated institutions support them seems pretty unhelpful.

Note that Ed Whelan (National Review Online’s Bench Memos) has beat me to this; I don’t always agree with him, but on this I generally do.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.

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