Suchergebnisse

Consider a corporation where one group of shareholders holds sincere religious beliefs and another group of shareholders does not share those beliefs but, for a price, will allow the religious shareholders to request a religious exemption to a neutrally applicable law on behalf of the corporation. The corporation is potentially both religiously sincere and insincere at the same time. A claim by the corporation for a religious accommodation requires the court to solve the paradox created by this duality and to declare the corporation, as a whole, either sincere or insincere in its beliefs. Although the Supreme Court and scholars have noted some of the particular issues raised when determining the religious sincerity of shareholders' claims, to date, no one has engaged systematically with the question of whose religious sincerity should be attributed to the corporation when shareholders hold heterogeneous, or diverse, religious beliefs. This Article provides a framework for determining the sincerity of corporations with religiously heterogeneous shareholders. It proposes an attribution inquiry that engages in a meaningful dialog between state corporate law and theories of religious sincerity. What little attention attribution has received tends to suggest that state law regarding corporate control provides an easy corollary. It does not. Corporate law is designed to enable contracting in pursuit of economic efficiency. Allowing control to stand in for attribution would lead to the monetization of religious sincerity, harming third parties and diminishing the value of religious liberty both in the courts and in the public eye. This Article considers alternative ways in which principles of state corporate law can shape the attribution inquiry to better delimit exemptions while still protecting the value of religious liberty. Ultimately, it concludes that meaningful restrictions should be placed on the ability of shareholders with heterogeneous religious beliefs to contract among themselves for corporate religious sincerity.

The U.S. Supreme Court in recent years has embraced an anti-majoritarian trend toward providing constitutional protections for the elite who own or control corporations. This trend is especially troubling as it threatens to undermine the balance found in state corporate law between private ordering for internal corporate matters and government regulation to police the negative externalities of the corporate form. The Court's interventions also have the potential to leave vulnerable groups without the protection of religiously-neutral laws designed to prevent discrimination, protect workers, or provide essential services such as health care. While the U.S. Supreme Court has not yet explicitly preempted what has traditionally been the province of states, the Court has relied, both implicitly and explicitly, on its own controversial definitions of state law as the foundation on which to create speech rights for corporations and religious rights for corporate owners. Absent explicit federal preemption, states can and should fight back against this creeping federalization of state corporate law. This Article provides a roadmap. It suggests modest changes to the veil piercing doctrine that can help to restore, at least in part, the balance of power between states and their corporate creations. A state court signaling to business owners even a potential for piercing, and thus the potential for unlimited personal liability, could discourage corporations doing business in the state from seeking religious exemptions to neutrally applicable laws. Most importantly, these changes do not threaten to undermine the corporate control mechanisms that have allowed for efficient private ordering within corporations, nor will they allow corporations to avoid these third-party protections by reincorporating in a different state. Forcing the federal courts to confront state assertions of their right to limit and define corporations will, at the very least, require the U.S. Supreme Court to be transparent about the extent to which it ...