Abstract
This article explores how Justice Kennedy's Hobby Lobby concurrence synthesizes competing narratives about religious liberty and points toward a doctrinal test of corporate religious sincerity that is legally and politically justifiable.An earlier version of this article won the Irving Oberman Memorial Prize for Harvard's best student writing on constitutional law and appeared on SSRN under the title, Reasoning from Principles of Religious Liberty to a Test of Corporate Sincerity. The article has been substantially revised since that time, and the analysis of Justice Kennedy's concurrence has been significantly expanded with the addition of Section IV.
Highlights
Justice Ginsburg rightly noted that the Supreme Court’s decision in Burwell v
The Fit With Current Doctrine: Strong on Rhetoric, Weak on Substance The liberal narrative about corporate religious liberty claims fits well with the statement in Hobby Lobby that Religious Freedom Restoration Act (RFRA) “provided protection for people like the Hahns and Greens” by employing the fiction of corporate personhood and that this fiction should be understood in light of the fact that its purpose is “to provide protection for human beings.”[96]. It fits with other language in the Hobby Lobby opinion, as described in Part I.A
The liberal narrative provides an inadequate account of why, when, and how individual beliefs are relevant to corporate claims
Summary
Justice Ginsburg rightly noted that the Supreme Court’s decision in Burwell v. To borrow an image from Ronald Dworkin, is like writing a new chapter in a chain novel—it requires interpreting the story that the law has already told about corporate religious liberty and crafting answers that fit the existing narrative and share its justifications.[9] Justice Kennedy’s. Hobby Lobby concurrence suggests that existing law tells a hybrid narrative that combines the popular justification of the liberal[10] narrative with the doctrinal fit offered by the originalist,[11] charting the path toward a manageable doctrine of corporate sincerity. Part II shows how the liberal narrative’s popular justification of corporate standing suggests an unruly balancing approach to determinations of sincerity that fits poorly with existing law. Part VI concludes by arguing that the hybrid narrative should guide the development of the chapter in corporate religious liberty
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