By Mike Dorf
My latest Verdict column asks why the argument for religious exceptions was mostly advanced by liberals in 1990 in Employment Division v. Smith but is mostly advanced by conservatives in the Hobby Lobby/Conestoga Wood case. I offer five factors that bear on the question. Here I want to add one brief thought on an issue that arose during the oral argument.
Consider an exchange between Justice Alito and SG Verrilli. Justice Alito posed a hypothetical question in which Congress bans kosher and halal slaughter on grounds that it is cruel. Would kosher and halal butchers that were organized as corporations be able to complain about such a law? SG Verrilli said that they might be able to, because such a law would single out religion, and thus fall outside of the "neutral" category of Smith and RFRA, triggering heightened scrutiny under the Free Exercise Clause. That in turn led Justice Alito to change the hypo to a law that requires that animals be stunned before slaughtering, a practice that would not target religion at all, but that (under standard interpretations of kashrut and halal) would forbid kosher and halal slaughter.
Putting aside my objection to all slaughter, and also putting aside SG Verrilli's answer to the revised hypothetical, I want to note here the seeming oddity of Verrilli's initial reply: His theory of the case appears to be that a business corporation does not have a religion for RFRA purposes when confronted with a law of general applicability, but that it does have a religion for Free Exercise purposes when confronted with a law that targets religion. But if a corporation can't have a religion, then why does it matter that the government is targeting the religion the corporation lacks, rather than incidentally burdening that non-existent religion?
One possibility might be that SG Verrilli thinks that the religious rights of corporations are broader than statutory rights under RFRA. After all, the targeting example arises under the Free Exercise Clause, not (just) RFRA. But that seems backwards. RFRA uses the word "person", which, as the plaintiffs' lawyer Paul Clement argues, at least presumptively covers corporations, pursuant to the Dictionary Act. The constitutional language does not more clearly point to religious rights for (business) corporations.
Maybe the better answer would be that laws that target religion for special burdens violate the Establishment Clause, which is a structural principle. In this view, a corporation that suffers a business detriment incurs an Article III injury, and then it can sue because anybody injured by a law that violates the Establishment Clause has standing to vindicate its structural principle.
I actually like that answer quite a lot because I share the SG's intuition that the corporate kosher or halal butcher should be able to object to the targeted law, even if, per RFRA, a corporate kosher or halal butcher has a weaker basis for objecting to the incidental effect of the mandatory stunning law. But adopting this position does lead to the anomaly that it essentially reads the Free Exercise Clause out of the Constitution. Per Smith, non-targeted burdens do not implicate the Free Exercise Clause, while per my reconstructed reading of SG Verrilli's argument, targeted burdens violate the Establishment Clause, so any violation of the Free Exercise Clause is redundant. So we're left with a puzzle.