The Rise of Corporate Religious Liberty

What are the rights of religious institutions? Should those rights extend to for-profit corporations? Houses of worship have claimed they should be free from anti-discrimination laws in hiring and firing ministers and other employees. Faith-based institutions, including hospitals and universities, have sought exemptions from requirements to provide contraception. Now, in a surprising development, large for-profit corporations have succeeded in asserting rights to religious free exercise. The Rise of Corporate Religious Liberty explores this "corporate" turn in law and religion. Drawing on a broad range perspectives, this book examines the idea of "freedom of the church," the rights of for-profit corporations, and the implications of the Supreme Court's landmark decision in Burwell v. Hobby Lobby for debates on anti-discrimination law, same-sex marriage, health care, and religious freedom.

Micah Schwartzman is the Edward F. Howrey Professor of Law at the University of Virginia School of Law.

Chad Flanders is Associate Professor of Law at the Saint Louis University School of Law.

Zoë Robinson is Professor of Law at the DePaul University College of Law.

Table of Contents

Acknowledgments

Contributors

Introduction

Chad Flanders, Micah Schwartzman, and Zoë Robinson

Part I: From Religious Liberty to Freedom of the Church

Chapter 1
Religious Toleration and Claims of Conscience
Kent Greenawalt

Chapter 2
The Jurisdictional Conception of Church Autonomy
Steven Smith

Chapter 3
"Freedom of the Church": (Towards) an Exposition, Translation, and Defense
Richard Garnett

Chapter 4
Religious Corporations and Disestablishment, 1780 - 1840
Sarah Barringer Gordon

Chapter 5
Why Churches (and, Possibly, The Tarpon Bay Women's Blue Water Fishing Club) Can Discriminate
Larry Sager

Chapter 6
Religious Organizations and the Analogy to Political Parties
Chad Flanders

Part II: From Freedom of the Church to Corporate Religious Liberty

Chapter 7
Hobby Lobby: Its Flawed Interpretive Techniques and Standards of Application
Kent Greenawalt

Chapter 8
Corporate Law and Theory in Hobby Lobby
Elizabeth Pollman

Chapter 9
Hosanna-Tabor after Hobby Lobby
Zoë Robinson

Chapter 10
Lessons from the Free Speech Clause
Frederick Schauer

Chapter 11
Religious Institutionalism-Why Now?
Paul Horwitz and Nelson Tebbe

Part III: Hobby Lobby's Implications

Chapter 12
The Campaign Against Religious Liberty
Douglas Laycock

Chapter 13
Bargaining for Religious Accommodations: Same-Sex Marriage and LGBT Rights after Hobby Lobby
Robin Fretwell Wilson

Chapter 14
Keeping Hobby Lobby in Perspective
Christopher Lund

Chapter 15
Healthcare Exemptions and the Future of Corporate Religious Liberty
Elizabeth Sepper

Chapter 16
Of Burdens and Baselines: Hobby Lobby's Puzzling Footnote 37
Frederick Gedicks and Rebecca Van Tassell

Part IV: Challenges to Corporate Religious Liberty

Chapter 17
Some Realism about Corporate Rights
Richard Schragger and Micah Schwartzman

Chapter 18
Religious Exemptions and the Limited Relevance of Corporate Identity
Ira C. Lupu & Robert W. Tuttle

Chapter 19
Freedom of the Church and our Endangered Civil Rights: Exiting the Social Contract
Robin West

Chapter 20
Change, Dissent, and the Problem of Consent
B. Jessie Hill

Chapter 21
The New Religious Institutionalism and the Old Establishment Clause Gregory Magarian

Chapter 22
Religion and the Roberts Court: The Limits of Religious Pluralism in Constitutional Law
Mark Tushnet

Index