Before I begin this summary, I think it is
important to explain certain terms used in this article. In this article, Carmella distinguishes
between churches, religious nonprofits, religious for-profits,[i]
and closely-held for-profit corporations engaged in secular endeavors but
operating according to the owners’ religious principles. The first two terms
describe entities which are clearly religiously focused. The last two terms, however, encompass
distinctly profit-motivated entities
with varying traces of “religious character.” With these differences in mind, Carmella
considers the implications of the Hobby
Lobby decision.
After Hobby Lobby: The “Religious
For-Profit” and the Limits of the Autonomy Doctrine considers the various
ways our courts have interpreted and enforced our constitutional right to free
exercise of religion. It also explains
how enforcement of this constitutional right differs based on the entity
seeking relief. The article places particular
emphasis on the autonomy doctrine and the “balancing framework” (the two
devices frequently used by the court).
In this article, Carmella compares theses two paradigms in light of the Hobby Lobby decision and explains why—moving
forward—religious for-profit companies pursing free exercise protection should
be confined to a balancing framework.
The
autonomy doctrine is founded on the notion that churches should be able to “manage
their own institutions free of government interference.” It, thus, protects the institutional freedoms
of churches and religious nonprofits without much regard to how other
individuals or groups may be impacted.
This doctrine can, consequently, have severe consequences. In fact, it often insulates claims of
discretion from being adjudicated. The
doctrine, further, requires no “rational basis” in the making of decisions and
the Supreme Court has gone so far as to say that when the autonomy doctrine
applies, even “appallingly arbitrary” decisions are not justiciable.
In
contrast to the autonomy doctrine is the “balancing” approach. Under this framework, courts consider the free-exercise
arguments of entities and persons with full attention to how it would impact other
individuals and groups. This approach,
consequently, ensures that the basic legal rights of individuals and groups are
not commandeered for arbitrary or unjust arbitrary reasons.
The article then
explains why the autonomy doctrine should not be used in cases involving
for-profits entities. She notes first
that churches and nonprofits—the intended beneficiaries of the autonomy doctrine—
are mission-driven rather than
profit-driven. Their focus,
consequently, is solely on facilitating “individual and collective religious
belief[s].” In contrast, for-profit
entities are primarily concerned with making a profit. This interest in making money forces for-profit
entities to focus first and foremost on business initiatives and concerns,
causing religious matters to play only a secondary role. For-profit entities, further, have a
significant influence over how individuals access goods, services, and even jobs. Given this power, for-profits should not be
able to limit basic legal rights and/or economic opportunities without regard
to those they employ and serve. This
need for consideration is especially important to employees and customers who lack
alternative means of accessing employment, goods, or services. Finally, Carmella notes that extending the
autonomy doctrine will dilute its protections across the board. Courts forced to apply the doctrine to
for-profits will find ways of chiseling down its severity in order to mitigate the
impact on others. This, in turn, will
affect the protections afforded to the core religious institutions like churches.
In conclusion,
this article demonstrates that the balancing framework should be applied to for-profit
free exercise claims. The approach
allows courts to consider the alleged burdens on religious exercise without
ignoring the rights and interests of the other individuals involved. This ensures that the strict protections
offered by the autonomy Doctrine are not abused in the commercial sector nor
diluted in the church and religious nonprofit context.
- Kelly Gorman
[i] According to Carmella, a
religious for-profit is “an entity with explicit religious identity, mission,
and undeniable ‘religious character’ that provides either: 1) religious goods
and services; or 2) education, health care or social services more
characteristic of a traditional nonprofit.
