This spring, the Supreme Court will decide—for the first time in our nation’s history—whether secular, for-profit corporations are entitled to invoke the constitutional guarantee of the free exercise of religion. The stakes are huge, as the justices will determine whether business corporations can claim a religious exemption from federal laws that protect the rights of their employees. You would think that corporations, which routinely jump in to protect their interests at the high court, would have weighed in on an issue of such significance. But not this time. Indeed thus far, the response of the business community has been near-total silence.
... Not one Fortune 500 company filed a brief in the case. Apart from a few isolated briefs from companies just like Hobby Lobby and Conestoga Wood, the U.S. business community offered no support for the claim that secular, for-profit corporations are persons that can exercise religion.
So what? In the first place, as I am sure Gans knows full well, the case is not one that affects large public corporations. It is a case that mainly affects small, family-owned businesses. Indeed, as Matthew Hall and Benjamin Means point out, Hobby Lobby and Conestoga Wood are “family-owned businesses” and, as such, those “corporations are ‘extensions of family relationships.’” Matthew I. Hall & Benjamin Means, The Prudential Third Party Standing of Family-Owned Corporations 3 (January 9, 2014), http://ssrn.com/abstract=2376849. They make that point in the context of arguing that:
[U]nder well-established exceptions to the prudential rule against third party standing, one party can sometimes assert the interests of another who is not a party to the lawsuit. Allowing Hobby Lobby and Conestoga Wood Specialties to litigate religious objections to the mandate on behalf of their shareholders obviates the need for the Court to venture into uncharted territory. The crucial insight is that the corporation’s injury need not be religious in nature for the religious objections to the ACA regulations to be adjudicated.
That argument is beyond the scope of this post, but it confirms that this is not an issue that affects Fortune 500 companies, so it's hardly surprising those large companies are saving their political and legal capital for fights that more directly concern them.
In the second place, the heads of Fortune 500 companies are part of what Christopher Lasch called the "New Elites," of whom he wrote:
A skeptical, iconoclastic state of mind is one of the distinguishing characteristics of the knowledge classes. ... The elites' attitude to religion ranges from indifference to active hostility. (The Revolt of the Elites: And the Betrayal of Democracy at 215.)
So why would we expect the Fortune 500's bosses to support Hobby Lobby and Conestoga Wood.
Returning to Gans, he makes much of that now familiar PB.com bete noire, the amicus brief of 44 corporate law professors:
... a group of corporate law scholars ... argued that Hobby Lobby’s argument would eviscerate the fabric of corporate law, undercutting the corporate veil that protects owners and shareholders from liability for the actions of the corporation. Filed on behalf of some of the nation’s most-well-respected corporate law scholars, the brief urges the justices to reject Hobby Lobby’s invitation to ascribe the religious views of Hobby Lobby’s individual owners to the corporation itself. Why? Because contrary to the most fundamental precepts of corporate law, Hobby Lobby’s approach would treat the owners and the corporation as one and the same. This would undermine the basis for limited liability as well as other aspects of corporate law designed to encourage entrepreneurial activity by business leaders, lending by investors, and risk-taking by corporate managers. Such an unprincipled, idiosyncratic exception from corporate law fundamentals, the scholars argued, would breed confusion in the law, lead to costly litigation, and undermine critical aspects of corporate law designed to spur creativity and innovation.
Of course, regular readers know what I think of that brief. For the benefit of any new readers, see my article A Critique of the Corporate Law Professors’ Amicus Brief in Hobby Lobby and Conestoga Wood (February 21, 2014), which is available at SSRN:http://ssrn.com/abstract=2399638. In short, the Brief is replete with errors, overstated claims, or red herrings, and misdirection.
Just like Gans' article (in my first amendment protected opinion).